Domestic Violence and Final Restraining Orders in New Jersey, part 2 of 3

At the FRO Hearing the parties present evidence both as to the allegations of domestic violence and as to the need for an injunctive relief, such as spousal or child support, custody or visitation, and the need for substance testing or counseling. The judge may order a risk assessment as well at this time. In order for a Final Restraining Order to be entered the judge must find there was a predicate act, a prior history of domestic violence, and that a reasonable person would be in fear for their safety based on the totality of the circumstances.

Whether you are a victim of domestic violence or you have been unjustly accused of perpetrating domestic violence, to prepare for the Final Restraining Order hearing:

• Contact any witnesses who saw the incident firsthand and ask them to come to court.
• Get evidence to help you prove or disprove all allegations. Evidence can include any: firsthand accounts by eye witnesses, medical or police reports, pictures (include dates on photos) etc.

Remember that when you are testifying, you are telling your story to the judge. Be as specific and detailed as possible about the incident in question, but leave out any unrelated information. The judge does not need to know what brand of shampoo you used that morning. If helpful, you may bring some notes or an outline to court to help you remember the events.

On the day of the hearing:

• Dress neatly and be on time, but be prepared to wait
• Do not forget to bring your evidence with you
• Bring any witnesses (they should wait outside the courtroom until called)
• Speak directly to the judge; the judge will understand if you are nervous
• Always be respectful and do not talk back to the judge
• Tell the truth, even the smallest of white lies can destroy your credibility
• If you do not know the answer to a question, say so
• If you do not understand a question,  say so.

 

Domestic Violence and Final Restraining Orders in New Jersey, part 1 of 3

Once a Temporary Restraining Order (“TRO”) is issued, a Final Restraining Order hearing will be held within a relatively short period of time, typically in ten (10) days. This hearing is held at the Superior Court in the county in which the restraining order was issued, as Municipal Courts do not issue Final Restraining Orders in New Jersey.

At a hearing the plaintiff will need to prove that the defendant has committed acts of domestic violence (as defined by the law) against her/him, and convince a judge that her/his safety is at risk.

When considering whether a final restraining order should be issued, the judge will first determine whether or not a predicate act of domestic violence occurred. A predicate act can include any of the following criminal offenses*:

• Assault
• Terroristic Threats
• Kidnapping
• False Imprisonment
• Sexual Assault
• Criminal Sexual Contact
• Criminal Restraint
• Criminal Trespass
• Criminal Mischief
• Harassment
• Stalking
• Lewdness
• Burglary

If the judge determines that a predicate act of domestic violence did not occur, then the restraining order will be dismissed. If the judge finds that a predicate act of domestic violence did occur, he or she will also consider other relevant factors including any previous history of domestic violence between the parties (including any prior threats, harassment, and physical violence), whether there is any immediate danger to person or property, the financial circumstances of both parties, and the best interests of the victim and any children.

At the hearing, both parties can be represented by counsel. The alleged victim (plaintiff) can testify about the incident of domestic violence which gave rise to the restraining order. He or she can also call witnesses to bolster the claim. The defense then has an opportunity to cross examine the alleged victim and any witnesses who take the stand. After the victim puts her/his case on, the defense has an opportunity to call witnesses (including the defendant). Throughout the proceeding, judge may ask various questions to both parties and witnesses.  After both parties finish, the judge will evaluate the testimony and any offered proofs (evidence) and determine whether or not a final restraining order should be granted.

* Also homicide, however, once your are dead it is simply too late for a FRO.

Domestic Violence and Temporary Restraining Orders in New Jersey, part 2 of 2

In addition to providing you protection from your abuser, the NJ Temporary Restraining Order can also offer you certain relief. For example:

• An order can require that the person who committed the act of domestic violence must  stay away from a victim’s person, home, workplace, school, or other such location. This can include, an order not to call or contact the protected person by mail, e-mail, and even text messages.
• An order can also establish temporary support and custody* until the matter is properly addressed in the divorce or non-dissolution action in court.

If the judge grants you a Temporary Restraining Order, the police officers have the authority to remove the abuser from your home, in order to protect you from further abuse. Note that the abuser will be temporarily prevented from returning to your home, regardless of whether the residence or household is his or hers, yours, or jointly owned/leased by both of you.

*An order can also set up a temporary visitation schedule for the defendant to see the children with designated locations for pickups and drop offs.

Domestic Violence and Temporary Restraining Orders in New Jersey, part 1 of 2

In New Jersey, domestic violence is considered to be a serious crime, and if you are a victim of domestic abuse there is help available. A New Jersey Temporary Restraining Order can give you protection and will shield you from your abuser, and it can be sought at either the local police station or the Family Division of your county’s Superior Court (where you or the defendant live or where the abuse or harassment occurred.)

Note that for you to get a domestic violence restraining order, there needs to be a special relationship between you and the abuser. You may be eligible for a restraining order against a person who committed an act of domestic violence against you if that person is: your spouse or former spouse, any present or former household member (if you are 18 or older or an emancipated minor), someone with whom you have a child or are pregnant with his baby, and someone you are dating or have dated.

If you are seeking a Temporary Restraining Order, go to the county courthouse (during the regular business hours) or local police station (anytime), and tell the clerk or officer on duty that you are seeking a Temporary Restraining Order as you are a victim of domestic violence. Explain the act of violence perpetrated against you, and use specific details such as dates and descriptive words to explain physical or verbal acts of violence.

After you have filled out the paperwork detailing all the domestic abuse you have suffered (both past and present), a judge will speak to you and ask questions about your situation. Make sure that you explain all acts of violence carefully to present an exact picture of your domestic situation. Once your case has been heard, the judge will decide if a New Jersey Temporary Restraining Order should be issued.

Using Your Lawyer as a Therapist

Since I practice matrimonial law, I am no stranger to clients who are emotional and want to vent against their soon-to-be-exes. If you do it from time to time, I will try my best to listen to you and help if I can. However, as a lawyer my job is not to be someone’s sounding board or a “friendly ear.” I am also not a psychologist, marriage counselor, or a therapist. I am not trained to give advice on how to deal with depression or anger.

Using your lawyer as a therapist is just not a good idea. Talk to someone better equipped to help you with your emotional needs, such as a therapist, rabbi, minister, or priest, even a trustworthy friend or family member. Your lawyer will listen to you but you will be charged for that time; which means that you will be paying your lawyer to listen to your non-legal problems that have no bearing on your case and can only detract from focusing on your actual legal needs.

Last but not least, subjecting your lawyer to your negative emotions could simply make him or her less objective and therefore less effective.

Internet Research and Website Misinformation

Recently I looked at some of my own blog’s statistics, and apparently some of you are actually reading my posts. Since I recently attended a continuing legal education class on technology and social media, I thought this would be a good time to post a warning – do not blindly trust all that you find on the internet. Sure, there are many great websites and blogs out there containing tons of useful information, and many authors take great pains to ensure that the content they post is correct and up-to-date (at least on the date of the posting); still there are plenty of websites published solely to give wrong information and erroneous advice… on purpose.

Why would someone disseminate wrong information on purpose? Apparently, just because he or she can. It’s called “website misinformation” and it is exactly what it sounds like. Someone either hacks a genuine website and edits information to spread misinformation, or creates a fake website aka counterfeit site to spread false “news” or advice.

So, when it comes to legal news and information, be wary about the source. After all, if you find some interesting or useful tidbit on-line, there is no guarantee that the person who wrote or re-posted it knows what he or she is talking about. On-line everyone can share information or misinformation. Even if the information was correct when posted, by the time you read it, it could be grossly outdated or even plain wrong. That is why when you are searching or researching a legal issue – keep in mind that even legal books and software usually contain a disclaimer advising that – “[t]he information contained in this book/program is not legal advice and is not a substitute for legal advice. For legal advice, consult with a lawyer.” It may be useful to get some information on-line, but when it comes to the real legal issue (your legal problem), there simply is no substitute for talking to an attorney who can analyze your situation and offer you advice tailored to your specific problem.

Alimony and Your Taxes

Frequently when people start working on their tax returns at the beginning of a new year, I start seeing questions whether Child Support and Alimony are taxable. Before I provide more information, it should be noted that this information is very general in nature and I am not a tax attorney, so if you have specific questions or your situation is confusing, consult a specialist.

However, the short answer is that Child Support is not taxable to the recipient but Alimony is (taxable to the recipient). If you are receiving Child Support and Alimony, check your “divorce papers.” Your property settlement agreement or court order will likely address these two payments, and help you determine how much income to claim on your tax return for alimony, which is defined as required payments by court order or agreement. If the agreement says that the payments you are receiving are not alimony, even though they may look like alimony, they probably are not alimony.

So if the payments you are receiving are not alimony, then you do not need to claim them as income and your ex-spouse cannot take a deduction for the payments. However, if the amount received is taxable alimony*, then you will need to include that amount on your form 1040 as income. This is why it is important to make sure that the types of payments you receive in a divorce are clearly specified in the court order or agreement.

Remember that:

• Alimony gets treated differently from child support on your tax return.
• Alimony is tax deductible to the person who pays it, and included in the taxable income of the person who receives it.
• Child support, by contrast, is not taxable to the person who receives it and is not tax deductible to the person who pays it.

* If you and your spouse have dramatically different incomes, there may be some tax advantages to using alimony, even if a judge wouldn’t ordinarily award it.

Your Right to an Interpreter

If English is not your first language and you are worried about not being able to express yourself in English when you go to court, you should know that both the Federal Civil Rights Act of 1964 and The New Jersey Law Against Discrimination prohibit national origin discrimination. As such, any U.S. agency that receives state or federal funds is obligated under the law to provide you with a free interpreter and translated materials if you need them.  In addition to courts, this law applies to schools, hospitals, police and fire departments, and even some nonprofit agencies. If one of those agencies refuses to give you an interpreter when you ask for one, this may be considered to be a violation of the law and a national origin discrimination.

If you need an interpreter, just ask for one. Note, however, that the interpreter’s job is to correctly interpret into English what you are saying in your native language, and to interpret into your native language what is being said to you in English. The interpreter cannot give you any advice and should not represent you, as his or her job is to simply serve as an interpreter (translator) to make sure that you understand what is being said.

Getting Social Security Number

You need a Social Security number (SSN) to get a job, collect Social Security benefits and receive some other government services. But you rarely need to show your Social Security card. As such, do not carry your card with you. Keep it in a safe place with your other important documents.

Only U.S. citizens, and immigrants who are authorized to work in U.S., can obtain a legal SSN. If you are not authorized to work, you can apply only if you need a SSN to get certain government benefits but you must be eligible for those benefits. You cannot get a Social Security number for the sole purpose of obtaining a driver’s license, as a driver’s license is not considered to be a government benefit.

Often, your SSN is only used to identify you and as such you don’t need it to apply for:

• most bank accounts
• educational tests
• low-cost (subsidized) housing
• school enrollment
• school lunch programs
• private health insurance

However, if you don’t have a SSN, you may still be required to obtain another identifying number. For a bank or to be able to file taxes, you will need an ITIN number*.  

In order to obtain your SSN and card, you will need to prove your citizenship or work eligibility, identity, and age. Note, that all documents submitted must be either originals or copies certified by the issuing agency. Social Security Administration will not accept photocopies or notarized copies of documents.

To prove your citizenship you can present your U.S. birth certificate, U.S. passport, Certificate of Naturalization or Certificate of Citizenship. To prove your U.S. immigration status, you will need to show SSA your current U.S. immigration document, such as Form I-551 (Lawful Permanent Resident Card or Machine Readable Immigrant Visa), I-766 (work permit) or I-94 (Arrival/Departure Record). If you are an F-1 or M-1 student, you also must show your I-20, Certificate of Eligibility for Nonimmigrant Student Status. If you are a J-1 or J-2 exchange visitor, you must show us your DS-2019, Certificate of Eligibility for Exchange Visitor Status.

In general, only noncitizens who have permission to work from DHS can apply for a Social Security number. For most foreign workers, SSA only need to see an I-94, Arrival/Departure Record showing a class of admission permitting work. Some foreign workers must show their work permits from DHS (I-766). However, if you are an F-1 student and eligible to work on campus, you must provide a letter from your designated school official. To verify what information needs to be included in that letter, contact SSA.

To prove your age, SSA required to see your birth certificate, but may consider other documents, such as your passport, to prove your age.

An acceptable document submitted to prove your identity must be current (not expired) and show your name, identifying information (date of birth or age) and preferably a recent photograph. For example: a U.S. driver’s license, a state-issued non-driver identification card, or US passport. Non citizens can show: form I-551 with unexpired foreign passport, I-94 with unexpired foreign passport, or I-766 work permit from DHS. In absence of the primary documents, sometimes SSA may look at: employee ID card, school ID card, health insurance card (but not a Medicare card), or U.S. military ID card.

Once you gather all required documents, fill out an Application for a Social Security Card (Form SS-5) and take it or mail it to SSA. Remember that there is no charge for a Social Security number and card.

* If you can’t get a SSN, you should get an Individual Taxpayer Identification Number (ITIN). Having an ITIN will allow you to pay your taxes, open a bank account, etc. If you are undocumented, applying for an ITIN will not get you in trouble with the immigration.

To get an ITIN, call 1-800-829-3676 and ask for appropriate form.

 

Post-Divorce Mini Financial Checklist

So you got divorced. You have your property settlement agreement. You got your stuff. You are ready to start a new life. Unfortunately, before you can truly start a new beginning, first you still have to take care of a few pesky issues that can haunt you for years if neglected.

• If you decided to change your name, make sure you update your social security card and your driver’s license.
• Update or change all authorizations on your open credit accounts. You probably don’t want your ex charging your MasterCard.
• Re-register your assets and property in your name alone.
• Close joint bank accounts.
• Either pay off all joint debt, or make appropriate arrangements.  
• Obtain and review your credit report.
• Review and update your health insurance. Again, if not required to do so, do you want to pay for your ex?
• Adjust your tax withholding on form W-4 to reflect your new marital status (or notify your human resources department).
• Review your estate plan. If your ex is named as your executor, maybe it’s time to get a new will.