Child Support Termination in New Jersey – New Law Becomes Effective February 1, 2017

New Jersey’s new emancipation statute is taking effect on February 1, 2017 and it will impact when and how child support orders come to an end. The new law will apply to all child support orders issued prior to or after its effective date.

This law establishes 19 as the age when a child support and/or medical support obligation ends. The new law allows, however, for child and/or medical support to continue up to age 23 for cases in which the dependent is still in high school; attending full-time college, vocational or graduate school; is disabled; if the parties reached a separate agreement; or, if continued support was granted by the court.

By providing greater certainty as to when child support will end, the law is now more payor-friendly. The statute also alters the rebuttable presumption that child support terminates when a child turns 18.

Termination of Child Support

The new law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service. Child support shall also terminate automatically when a child reaches 19 years of age unless:

  • another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age;
  • a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or
  • the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

In response to a notice of proposed termination of child support, a custodial parent, in the following circumstances, may submit a written request with supporting documentation and a projected future date when support will terminate seeking the continuation of child support beyond the date when the child reaches age 19:

  • the child is still enrolled in high school or other secondary program;
  • the child is a student in a post-secondary education program and is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any five calendar months of the year; or
  • the child has a physical or mental disability, as determined by a federal or state agency that existed prior to the child’s reaching the age of 19 and requires continued child support.

Note that all “Request for Continuation of Support” forms must contain a future date in which child support would end and that date must be before the child’s 23rd birthday. The proposed end date must be supported by any documentation provided. For example, if the request for continuation is based on the child remaining a high school student, the proposed future termination date should be the child’s expected high school graduation date.

The “Request for Continuation of Support” form and acceptable supporting documentation must be received no later than 45 days prior to the termination date. The due date will be specified in the notice. Any request form received past that due date may not be considered and the requesting party will have to file a petition with the court to request a continuation of support.

A custodial parent may also file a motion with the court seeking to extend the obligation to pay child support beyond the date the child reaches 19 years of age due to exceptional circumstances as approved by the court.

If a court orders the continuation of child support beyond the date when the child reaches age 19, the order also must also provide “the prospective date of child support termination.” If the payor parent disagrees with the court’s decision to continue child support, he or she may file an application seeking relief from the obligation.

If your Judgment of Divorce (JOD) or support order specifies a termination date other than the dependent’s 19th birthday, that date will stand and you will not be permitted to request an administrative continuation of support. However, you still may receive a termination notice and be asked to send in a copy of the JOD or order containing the termination date.

If you receive an updated order for continued support and wish to oppose it, you may file an application or motion with the court. If there are younger children on the order in addition to the 19-year-old (or older) child(ren), parents may file an application or motion with the court to adjust the child support amount.

Probation Notices of Child Support Termination

Matters involving child support obligations administered through the Probation Division will require that both parents receive written notices of a proposed termination of child support, each of which shall include information and the request form to facilitate the continuation of child support beyond the date when the child turns age 19. The first notice will be sent 180 days prior to the proposed termination date, and if there is no response to the first notice, a second Notice of Proposed Child Support Obligation Termination will be sent out 90 days before the dependent’s 19th birthday. If no continuation is granted after the second notice, the order of support will end as of the child’s 19th birthday. Both parties will receive an updated order reflecting this change

The second notice, however, shall not be required if a custodial parent’s request for continuation is pending or a new date of child support termination has been established.

If the child is already over the age of 23 or approaching his/her 23rd birthday or other court-ordered termination date, both parents will receive a “Notice of Child Support Obligation Termination” 90 days prior to the obligation termination date.

Any current case with a dependent between the ages of 19 and 23 will be sent “Notice of Proposed Child Support Obligation Termination” on February 1, 2017, with a termination date of August 1, 2017, not the child’s 19th birthday. If no response is received to the first notice and a termination date has not been modified by a court order, a “Second Notice of Proposed Child Support Obligation Termination” will be sent on May 1, 2017. If support is not continued, the child support obligation will terminate on August 1, 2017.

Any current case with a dependent age 23 or older will be sent a “Notice of Child Support Obligation Termination” on February 1, 2017. The termination date will be May 1, 2017, and not the child’s 19th birthday, regardless of the dependent’s actual age.

Age 23 as a limit

The new law provides that “the obligation to pay child support shall terminate by operation of law when a child reaches 23 years of age,” except that a child beyond age 23 can still seek an order requiring the payment of other forms of financial maintenance, or reimbursement from a parent, as authorized by law, so long as it is not payable or enforceable as child support.

All court-ordered obligations to pay or provide medical coverage will also end when the child support ends. However, custodial parents may file a motion or application to request that medical coverage be enforced until the child’s 23rd birthday. If not court ordered, either parent may voluntarily provide medical coverage for their child through their employer up until the age of 26 according to federal law and up until 31 under New Jersey law if certain conditions are met.

Unallocated Child Support for Two or More Children

The new law establishes that if there exists an unallocated child support order (one that does not specify the amount of support for each child) for two or more children, and the obligation to pay for one child terminates, the existing support obligation shall continue.  If you have an unallocated order with a remaining child(ren) after an obligation is terminated, you are still responsible for paying the total child support amount plus arrears, if any, unless a different amount is ordered by the court. If you have an allocated order with a remaining child(ren) after termination, your support order will be adjusted automatically to deduct the amount of the terminated obligation.

If, however, the support was allocated — rather than unallocated — and support for one child terminates, the amount of child support for the remaining child(ren) shall be adjusted to reflect only the amount allotted for the remaining child(ren). Parties can also always resolve the issue of child support amongst themselves, rather than wait to see how the court will adjust the remaining amount due, to avoid the time and expense associated with litigation.

Arrears Existing at Termination

If back child support is owed when the child support terminates, the non-custodial parent is still responsible for paying that off and the order will still be enforced for the arrears.

Even though the obligation for current support ends, the case will remain open until the arrears are paid off. The noncustodial parent is still responsible for paying the recurring child support amount that existed prior to termination PLUS the arrears payback amount unless a different amount is ordered by the court.

Example: The non-custodial parent pays $75 per week in current child support and $25 per week toward the arrears. After receiving the “Notice of Child Support Obligation Termination” for his only child, there are remaining unpaid arrears. He now owes $100 per week arrears payback until the arrears are satisfied, unless the court modifies that repayment amount.

Impact on Intergovernmental Cases

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (UIFSA), or any succeeding law that is substantially similar. UIFSA provides that child support ends according to the law of the State in which the order was established and cannot be changed by another state. This new support law applies only to child support orders established by New Jersey.

Support While in College

The law explicitly provides that it does not require nor relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Other Points

Any party may still seek to terminate child support for any reason other than those provided in the new law. Importantly, the law also confirms that it does not “prohibit the parties from consenting to a specific termination date for child support that does not exceed the date a child reaches 23 years of age, or to any other financial arrangements for a child that are not designated as child support, subject to the approval of the court.”

If you are paying or receiving child support and you have a child between the ages of 19 and 23, make sure that the Child Support Program has your current mailing address on file so that termination notices are sent to the correct address.

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US Citizenship and Elderly

elderly.couple.snow

We regularly receive calls from the elderly green card holders or their adult children who want to know how someone can become a US citizen if he or she is unable to prepare for the English history test and/or is not fluent in English. Here are the two most common scenarios that we hear quite frequently.

Q:        My dad is eligible for US citizenship because he has had the green card for 5 years, and he does not have extensive travel or any criminal issues. But he does not speak or read English and he has hard time studying for the history test. Can he become a US citizen?

A:        USCIS has specific rules regarding applicant’s age and how long they have had the green card that can exempt them from having to take the US English History test and also exempt them from passing the interview portion of the N-400 as well as the reading and writing exam.

The age qualifications that exempt applicants from the English, reading and writing tests are as follows:

  • 65 years and has resided in US as a green card holder for 20 years or more.
  • 55 years old and has resided in the US as a green card holder for 15 years or more.
  • 50 years old and has resided in the US as a green card holder for 20 years or more.

Applicants that meet one of the above categories must only take the civics test in their language of choice.

However, here the applicant has had the green card for only 5 years and so the only solution is to see whether the applicant is eligible for a medical disability waiver. A medical disability waiver is completed by a US licensed general medical doctor, licensed clinical psychologist or other specific doctor on USCIS form N-648, Medical Certification for Disability Exemptions. The form must be completed a certain way and with specific wording and information in order for USCIS to approve the medical waiver. The doctor, in order to complete the medical disability form, must give the N-400 applicant, a test to determine whether he or she can learn or remember basic things. This test can include having to recite basic information just explained and may also include other basic cognitive exams.

Applicants with dementia or Alzheimer’s, for example, are eligible to file form N-648, Medical Disability Waiver, which states that because of their mental limits, they cannot study for the US history test. A major limitation for eligibility under form N-648 is that the resulting mental disability cannot be a result of drug use.

If the Form N-648 is approved by the US Immigration Officer, then the US citizenship applicant does not have to take any test in order to have their form N-400 approved and be sworn-in.

Q:        I am 65 years old and have been living in the US as a green card holder for over 20 years. My English is not so good. Do I still have to take the English test?

A:        No, but you will still need to take a modified version of the civics test in your language of choice. You do not have to take the reading or writing test. The N-400 interview, which includes reviewing the details of the N-400 and asking whether you have ever been arrested, if you file US taxes, etc. will be completed with the help of the interpreter.

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Holiday Work Parties – WHAT NOT TO DO Primer

Parties can be a lot of fun, even work parties, but they can also be uncomfortable, socially awkward, and still feel like work – especially if your boss can use your behavior to judge your ability to maintain professionalism in a social setting. When office parties get out of hand, it can lead to some professionally devastating situations and even lawsuits. So how can you make sure that you’re not ruining your professional image or risking your job when attending a work social event?

  1. Drinking too much. Most workplace events come with complimentary drinks. Unfortunately, whether you are trying to be casual or you are drinking to make the rigid event more bearable, you need to make sure that you are not overdoing it. Imbibing too much alcohol can lead to embarrassing moments that can mortify you once you’re sober, ruin your chances of promotion, or even get you fired. If you make a fool out of yourself, be prepared to be haunted for it for a very long time and see embarrassing pictures or videos of yourself all over social media.
  2. Getting in fights with co-workers.If you harbor some anger or ill feelings toward a colleague or manager, there’s always the chance that those feelings will finally bubble up when you have to deal with him or her in your time off. You might also feel more relaxed at a party, so you might be less cautious and give in to temptation to say—or do—something you might  regret later. That goes double if you are drinking. See #1. Verbally attacking your co-worker, or punching him or her will not be a good career move and may even land you in jail.
  3. Flirting or making inappropriate overtures to co-workers.­ Sometimes work parties get too casual and certain people may cross the line, especially propelled by the “liquid courage” – courtesy of free-flowing alcohol. Saying sexually inappropriate things to a colleague, or worse yet, inappropriately touching someone might land you in serious trouble later on. Unwelcome sexual advances might lead to sexual harassment complaint and/or investigation.
  4. Badmouthing the boss.When socializing with your co-workers, the truth about how you feel about your manager or other colleagues may come out. Even if you don’t like someone else in the office, it’s best to keep those feelings to yourself at workplace social gatherings—because they could come back to bite you later on. You might be thinking that you are among the friends, your work buddies, but at a work party you are among co-workers first and foremost, and many friendships and loyalties were broken up over a promotion or raise, so keep any badmouthing to yourself.
  5. 5. Gossiping. Liquor and fondness for over sharing typically go hand in hand. Though gossiping at work may be a given, it’s no excuse to run your mouth about whatever — to whomever. Don’t be the office Chatty Cathy! Remember that partaking in office gossip can be risky, and discretion must be used to avoid embarrassment, hurt feelings or even termination. Never disclose confidential information you gained access to through work. Sharing it with others might land you involved in a breach of policy or protocol. Also, erect appropriate boundaries providing co-workers and supervisors with only limited access to your own personal information. This prevents your own private life from being shared company wide.

So don’t overdo the liquor and remember that even though you may be at a party, it’s still a work party so essentially you’re at work. If you are attending a work-sponsored event, expect all workplace policies to be still enforceable.

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Types of Divorce: Fault v. No-Fault

Wedding cake split

Many people still seem to think that it’s better to get divorced using fault grounds rather than filing for a no fault divorce; and while many states no longer even have divorces based on fault grounds, there are still some states in which you can get a divorce based on adultery, cruelty, abandonment/desertion, addiction, or incarceration.

Even if the state you live in allows fault-based divorces, you should consider whether establishing fault makes any difference in your case. If you feel that you have been wronged by your spouse, you may think that it is your right or even an obligation to tell the judge that your soon-to-be-ex is a cheat, an addict, or he/she is crazy, but short of having psychological release by “airing things out,” you may not be deriving any actual benefit from having a fault-based divorce.

So many people wonder if the fault-based divorce is actually useful, and will establishing fault expedite the process of getting divorced? Will your spouse be punished, and if so, will that benefit you? Will you get a better deal in your marital settlement, or at least, will your emotional pain go away faster?

Unless the facts in your case are so extraordinary or so compelling as to make even the most hardened of judges feel sorry for you, most judges simply do not care as to who caused the end of the marriage. Also, it is not easy to actually establish alleged fault grounds for divorce. If both parties accuse each other of being at fault, the judge is faced with the “he said/she said” problem and may not know whom to believe. When that happens, judge will most likely ignore both sides’ allegations of fault and proceed with the rest of the case. If that happens, not only you will not gain anything, but you will waste more of your time, money and effort, and may even annoy the judge who (mind you) still has to decide the rest of the case.  Unless you have solid documented evidence, really consider whether it’s worthwhile for you to be hell-bent on assigning fault for the breakdown of your marriage.

Even if you can prove your spouse’s fault in court and the judge finds your spouse to be at fault – it is usually only one of many factors that are considered when dividing the marital property, awarding alimony, or determining custody. If somehow your spouse ends up being actually punished, for example for cheating on taxes; you may end up getting pulled into his/her drama too, or there will be less assets for you to share after the IRS seeks back taxes and interest. Should your spouse end up in jail, and you were hoping to collect alimony or/and child support, you can pretty much kiss that money good buy.

In comparison, a no fault divorce is exactly just that. It is a divorce in which the spouse filing for divorce does not have to prove any fault on the part of the other spouse. All a spouse needs to do is to give a reason that the state honors to grant a divorce. The most common such reason is “irreconcilable differences” or an “irreparable breakdown of the marriage.” These pretty much mean that the parties no longer get along and that the marriage is over. While all states recognize no fault divorces, some require that the spouses live separately for a specified period of time before either of them can file for a divorce.

So rather than concentrating on establishing a fault, the emphasis should be on moving on with your life. Even if your spouse left you and you did nothing wrong, consider ending your marriage without accusations and blame, which will only make your spouse more defensive and may prolong the entire process.  As difficult as it may be during a divorce, think about the future and how you want to live your life post divorce. If you have children, chances are your spouse will somehow be still involved in your children’s life and you will have to maintain some kind of contact with your spouse. As such, ending your marriage without the unnecessary drama, will help all of you to recover sooner and to move forward.  Divorce is hard enough as it is, even the friendliest of divorces is still a divorce (breakdown of the marriage), so think hard (before filing) as to what type of divorce you want.

Note that even if you wish to part ways amicably, your spouse may file an Answer and still he/she may file a Counterclaim slapping you with a fault-based divorce.

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AG/BIA New Precedent Decision 10/12/2016

Matter of SILVA-TREVINO, 26 I&N Dec. 826 (BIA 2016)

The BIA concluded that the categorical and modified categorical approaches provide the proper framework for determining when a conviction is for a crime involving moral turpitude (CIMT). The BIA further found that unless the controlling case law of the governing federal court of appeals expressly dictates otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether an offense is a categorical CIMT. Applying this framework to the respondent’s case, the BIA held that the respondent’s conviction for indecency with a child in Texas was not a categorical CIMT, and remanded the record for further consideration of his application for relief.

(1) The categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a crime involving moral turpitude.

(2) Unless the controlling case law of the governing Federal court of appeals expressly dictates otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether an offense is a categorical crime involving moral turpitude.

(3) Under the “minimum reading” approach applied by the United States Court of Appeals for the Fifth Circuit, the respondent’s conviction for indecency with a child under section 21.11(a)(1) of the Texas Penal Code is not for a categorical crime involving moral turpitude.

(4) An alien who has engaged in misconduct involving sexual abuse of a minor is not required to make a heightened evidentiary showing of hardship or other factors to establish that an application for relief warrants a favorable exercise of discretion.

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Who Should You Name to Be Your Health Care Proxy?

A durable power of attorney for health care is a legal document naming a healthcare proxy, someone to make medical decisions for you if you can’t make them yourself. Your proxy, also known as a surrogate or agent, should therefore be familiar with your values and wishes. This means that he or she will be able to decide as you would when treatment decisions need to be made. A proxy can be chosen in addition to or instead of a living will*. Having a healthcare proxy helps you plan for situations that cannot be foreseen, like an accident.

Notice that a durable power of attorney for health care enables you to be more specific about your medical treatment than a living will.

Some people are reluctant to put specific health decisions in writing. For them, naming a healthcare agent might be a good approach, especially if there is someone they feel comfortable talking to about their values and preferences. That is why once you decide to choose a proxy, think about someone who shares your views and values about life and medical decisions. Note that your proxy doesn’t need to be a family member or a friend, but it definitively needs to be someone you absolutely trust.

* A living will is a written document that helps you tell doctors how you want to be treated if you are dying or permanently unconscious and cannot make decisions about emergency treatment. In a living will, you can say which of the available procedures you would want, which ones you wouldn’t want, and under which conditions each of your choices applies.

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Avoiding Immigration Scams

UPDATE: Lately immigrants all over the country are being targeted in phone scams. Scammers may call or email, pretending to be a government official. They say that there is a problem with an application or additional information is required to continue the
immigration process. They then ask for personal and sensitive details, and demand payment to fix any problems. Remember, USCIS officials will never ask for payment over the phone or in an email. If payment is needed, mail a letter on official stationery
requesting payment will be mailed out.

Whether you’re applying for or renewing a Green Card, becoming a citizen, or sponsoring a family member, immigration issues can be complicated and immigration mistakes can be costly.

Finding the right person to help you is just as important as finding out which forms to use and how to fill them out properly. There are many people and organizations offering immigration services; and you will see all kinds of newspaper ads, advertisements in store windows, or billboards. Some of these immigration providers will even call themselves immigration experts.  The reality is that few, if any of these people, even know the basics of immigration law, and help from people who don’t know the law or rules can hurt you. These people will charge you money, but they will not give you real help. Sometimes, they might even do something that will hurt your case later on.

Even people who mean well – a friend, a teacher, or a relative – can cause problems for you. Helpers like these should only write or translate what you tell them to, not give you advice on what to say or which forms to use. To get real help and legal advice, work with people who are actually qualified, not those who just pretend that they are qualified and know immigration law.

Watch out for dishonest people who may even charge you for blank immigration forms, say they have a special relationship with the government, or guarantee you results. They may promise to get you a winning slot in the Diversity Visa lottery if you pay a fee. They may charge you a lot of money to supposedly guarantee you benefits that you don’t even qualify for. They may tell you they know someone at the Consulate or Embassy who can get you valid papers for a “small fee.”

How to Avoid a Scam

  • Never pay for blank government forms. Government forms are free, though you’ll probably have to pay a filing fee when submitting them to USCIS.
  • Know that some scammers set up websites that look like they are run by the government, but they aren’t. Make sure that the website that looks like a government site ends with “.gov.” That means it is from the U.S. government.
  • Don’t let anyone keep your original documents, like your birth certificate or passport. Scammers may keep them until you pay to get them back.
  • Never sign a form that has false information in it. Never sign a document that you don’t understand.
  • You will get a receipt from USCIS when you turn in your paperwork. Keep it! It proves that USCIS received your application or petition. You will need the receipt to check on the status of application, so be sure you get a copy.
  • Understand that in the U.S., notarios or notaries public are not lawyers; they can’t give you legal advice or talk to government agencies for you.

How to Get the Right Help

Help is available, but there are rules about who can help you. Follow these rules to find help authorized by the U.S. government. Getting help from someone who’s not qualified to give you legal advice – like some immigration scammer – can be worse than not getting any help. Two main groups are authorized to give you legal immigration advice or represent you: lawyers and accredited representatives: 

Lawyers:

Lawyers can give you advice and represent you. Lawyers, also called attorneys, must be a member of the “bar” – the professional association in their state. The state bar association can discipline, suspend, or even expel a lawyer for breaking the rules. Be sure the lawyer you choose is in good standing with the bar association. That means they’re not in trouble for breaking the rules for lawyers.

There are enough lawyers living in this country for you to have little to no problem finding one that speaks your language, if you are not comfortable communicating in English.

Accredited Representatives:

Accredited Representatives are not lawyers, but are authorized by the government to give legal immigration advice. They also may represent you. These representatives must work for an organization that’s officially recognized by the US government. The names of both the accredited representatives and these recognized organizations are on a list kept by the Board of Immigration Appeals (BIA) at the Department of Justice.

Report Scams

Immigration scams are illegal. If you or someone you know has seen an immigration scam or been the victim of one, it’s important to report it to the Federal Trade Commission (FTC) or the attorney general of your state. Go to ftc.gov/complaint (or call 1-877-382-4357), or click on the map at naag.org o find out how to contact the attorney general in your state.

It cannot be stressed enough how important it is to work with a real immigration practitioner, or someone who knows immigration law.  And as everything else in life, if it sounds too good to be true, it probably is.  If someone promises you miracles, especially for an extra fee, chances are you’re being scammed or you are working with someone who has no clue what she or he is doing.

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