Friday, October 17, 2014
Non-Litigation Information Sheet
Non-Litigation Information Sheet |
PLEASE FILL OUT COMPLETELY THIS CONFIDENTIAL INTERVIEW FORM AND FAX OVER TO OUR OFFICE at FAX # (732) 572-0030.
KENNETH VERCAMMEN & ASSOCIATES, PCATTORNEY AT LAW 2053 WOODBRIDGE AVENUE EDISON, NJ 08817 732-572-0500 PLEASE PRINT NAME ______________________________________________________________ ADDRESS ___________________________________________________________ CITY _______________________________ STATE _____ ZIP _______________ CELL-PHONE (_____)_______________________________ (Area Code Needed) PHONE-DAY (____)__________________ NIGHT (______)__________________ E-MAIL ADDRESS ___________________________________________________ ADVERSARY PARTIES IF ANY: _______________________________________ ADDRESS OF THE OTHER PARTY: ____________________________________ REFERRED BY: ______________________________________________________ If referred by a person, is this a client or attorney? If you heard about the law office on the internet, which search engine? What search terms did you use? TODAYs DATE: _____________________________________________________ DESCRIPTION OF MATTER: ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ QUESTIONS TO ASK ATTORNEY:_____________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ___________________________________________________________________ |
Contested Probate
Do you think youre entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? Has The Executor of Adminsitration of The Estate not done their job? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.
Executor Duties and Responsibilities
At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executors job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which weve set out below.
In General, the executors job is to
1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the will).
Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Step 1: Probate. The executor must "probate" the will. Probate is a process by which a will is admitted. This means that the will is given legal effect by the court. The courts decision that the will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the will.
Step 2: Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.
Step 3: Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf.
Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.
Step 4: Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid.
Step 5: Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
WHO SHOULD SERVE AS EXECUTOR? The executors legally imposed fiduciary duty is to act in all ways in the best interests of the estate and its beneficiaries. The duties of an executor can be difficult and challenging and should not be taken lightly.
We believe an executor needs not only the skills, training, and experience necessary to do the project--casual or part-time attention is not likely to achieve success.
Under increasingly complex laws and rulings, particularly with respect to taxes, an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience.
FILING SUIT IN AN ESTATE CONTEST
RULE 4:84. COMPLAINTS IN CASES IN WHICH SURROGATES COURT NOT ABLE TO ACT
4:84-1. In General
In any case in which, under R. 4:82, the Surrogates Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.
4:84-2. Probate in the Superior Court
If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogates Court. Letters of appointment shall then be issued by the Surrogates Court.
4:84-3. Contested Administration
Where administration of an estate has been contested, the judgment of the Superior Court granting administration shall direct issuance and recording of letters of administration by the Surrogates Court.
4:84-4. Appointment of Substituted Trustees
An action for the appointment of a substituted trustee (a trustee not named in the trust document) of an inter vivos or testamentary trust shall be brought pursuant to R. 4:83. The complaint shall have attached a copy of the trust instrument and the acceptance by the person or persons seeking the appointment. The order to show cause shall be served upon all persons having an interest in the trust, vested or contingent, except as otherwise provided by R. 4:26-3 (virtual representation), and upon any trustees then serving. The judgment shall direct the issuance by the Surrogates Court of letters of trusteeship.
4:84-5. Appointment of Administrator Pendente Lite or Other Limited Administrator
No order appointing an administrator pendente lite or other limited administrator shall be entered by the Superior Court without either notice to the persons in interest or their written consent, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result before notice can be served and a hearing had thereon. If an order is granted without notice, it shall give any person in interest leave to move for the discharge of the administrator on no more than 2 days notice. This rule shall not apply to the administrator ad prosequendum in an action for wrongful death.
RULE 4:85. REVIEW BY SUPERIOR COURT OF ACTIONS BY SURROGATES COURT: GENERAL PROVISIONS
4:85-1. Complaint; Time for Filing
If a will has been probated by the Surrogates Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances. The complaint and order to show cause shall be served as provided by R. 4:67-3. Other persons in interest may, on their own motion, apply to intervene in the action.
4:85-2. Enlargement of Time
The time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.
4:85-3. After-Discovered Will
(a) Order to Show Cause. Where administration has been granted and subsequently a will is offered for probate or where probate of a will has been granted and subsequently a later will is offered for probate, the person offering such will may, upon the filing of a complaint, move without notice for an order requiring all interested persons to show cause why probate of such will should not be granted. The complaint shall be filed in the county where the original administration or probate was granted. If, on the return date or thereafter, new probate is granted, the court shall require the administrator or prior executor to make final settlement of his or her account and thereafter shall make such order respecting commissions as is appropriate.
(b) Probate by Surrogate. If, on the return date of the order to show cause, there is no objection to the offering of the after-discovered will for probate, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate unless a caveat has been filed or doubt arises from the face of the will.
KENNETH VERCAMMEN, ESQ.
RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE Edison Adult School -Wills, Elder Law & Probate- 2002, 2001, 2000,1999,1998,1997 Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecelia/ Woodbridge Seniors 2002; Temple Beth Or 2002; -Linden AARP 2002 Woodbridge Housing 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001 -Wills and Estate Administration - Woodbridge Adult School 2001, 2000,1999,1998,1997,1996 -Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993 -Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995 -AARP Participating Attorney in Legal Plan for NJ AARP members -Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peters-2000, 1999,1998 -East Brunswick AARP Wills 2001 -Iselin/ Woodbridge AARP Wills 2000 -Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001 -North Brunswick Senior Day 2001 -Wills, Elder Law and Probate-South Brunswick Adult School 1999,1997,1993 -Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995 -Senior Citizen Law-Perth Amboy YMHA 1995 -Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993 -Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994 -Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994 -Wills and Estate Planning-Edison Elks and Senior Citizens January 1994 -"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993 -Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993 -Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992; -Wills and Power of Attorney 1991 Edison Democratic Association
New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present
ADJUNCT PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991
New Jersey Superior Court - Certified Mediator 1997- New Jersey Supreme Court Committee on Municipal Court Education: Appointed by Chief Justice Robert N. Wilentz 1990 - 1997
Collecting a Money Judgment - Special Civil Part
* Execution on Goods and Chattels (personal property)
* Bank Levy
* Execution Against Wages
* Writs of Execution
* Docketed Judgment
* Information Subpoena
* Court Order for Discovery
* Collecting and Out-of-State Judgment
* Settlement
How your attorney can attempt to force the deadbeat creditor to pay money owed!
If money is owed you because you have been awarded a judgment by the Superior Court or Special Civil Part, you are a judgment creditor. Attorneys usually work on an hourly basis- between $200 /hr and up. It is usually not cost effective to hire an attorney if the amount due is under $1,000.
EXECUTION ON GOODS AND CHATTELS (PERSONAL PROPERTY)
An execution on goods and chattels lets the court try to collect the money owed on a judgment from the debtors bank account or personal property. (Real estate cannot be used to collect money owed in the Special Civil Part.) You must locate and identify the debtors personal property that can be used to satisfy your judgment. Your attorney may, petition that a Court Officer try to sell personal items such as office equipment, etc., at a public sale. The debtor may keep $1,000.00 worth of personal property. If the debtor does not have $1,000.00 in personal property, this method cannot be used to satisfy your judgment and to collect the money owed you. Vehicles- If you ask that the Court Officer seize the debtors motor vehicle, you must be able to show that the vehicle is registered in the name of the debtor. This is done by getting a certified copy of the title and a certified lien search from the New Jersey Division of Motor Vehicles. The Clerk or Court Officer will inform you of additional fees to advertise and sell the property when and if these events occur. A writ of execution is good for one year from the date it is issued, and can be renewed.
BANK LEVY
If you know or can find out where the debtor has a savings or checking account in New Jersey, your attorney may ask that a Court Officer collect your debit from the money in the account. You must provide the number of the bank, the address and the account number, if possible. Court Officers cannot search for bank accounts. After the money has been levied upon by the Court Officer, it is considered frozen. Your attorney must then file a Motion to Turn Over Funds with the court and serve a copy upon the debtor and the bank. If the court grants the motion, the judge will sign the Order to Turn Over Funds that you submitted with your motion. This order will be delivered to the bank by the Court Officer.
EXECUTION AGAINST WAGES
An execution against a persons wages can be requested if the debtor works in New Jersey and earns more than $127.50 per week. To request a wage execution, your attorney or you must send a Notice of Application for Wage Execution to the debtor by regular and certified mail. A copy of the application and a statement of how you mailed the application to the debtor must be filed with the Office of the Clerk of the Special Civil Part. If the debtor objects to the wage execution, a hearing will be scheduled by the court. If the debtor does not object or the court does not allow the objection, an order for a wage execution will be issued and the wage execution will be delivered to the debtors employer by the Court Officer. The employer will hold back a portion of the debtors pay, in accordance with the Order for Wage Execution and will send this money to the Court Officer who will then send it to you.
Wage Execution- The court cannot levy on welfare benefits, Social Security benefits, SSI, veterans benefits or unemployment benefits. Once you apply and the court issues a writ of execution on goods and chattels (personal property) or wages, it is assigned to a Special Civil Part Court Officer for collection. By law there is a 10% fee added to the amount of the judgment as the Court Officers commission. This fee is listed on the writ and is payable to the Court Officer as the judgment is collected. The 10% is taken from the money collected by the Court Officer. Once a writ of execution is issued, the payments should be made directly to the Court Officer and not directly to you as the creditor. The Court Officer handles the bookkeeping, deducts the appropriate commission, and sends the balances to you. After a writ is returned by the Court Officer marked fully satisfied, the Clerk of the Court will enter the satisfaction in the record. In some instances, after a levy has been made by the Court Officer or contact has been made with the debtor, settlement discussions may occur between you and the debtor. In making a settlement with the debtor, remember that the Officer who has made a valid levy or has in some way helped produce payment by law receives the 10% commission on any amount paid. Any partial or full payment made directly to you is subject to the commission that must be paid to the Court Officer.
DOCKETED JUDGMENT
If you or a Court Officer cannot collect the money due you on the judgment, you may have the judgment from the Special Civil Part recorded by your attorney in the Superior Court Clerks Office in Trenton. Once your judgment is recorded in the Superior Court, the debtor cannot sell with clear title any real estate owned in New Jersey until your debt is paid. Once docketed, future efforts to collect a judgment originally awarded in the Special Civil Part must be made through the Sheriffs Office in the county where the debtors assets are located.
INFORMATION SUBPOENA
If you do not know where the judgment debtor has a savings or checking account, what personal property the debtor owns, or where the debtor works, your attorney may attempt to obtain asset information by use of an information subpoena. An information subpoena is a court paper containing questions about the debtors assets. Your attorney will serve an original and one copy of an information subpoena upon the debtor either personally or by registered and certified mail, return receipt requested, and simultaneously by regular mail. You also must provide a postage paid, addressed envelope with the information subpoena. The debtor must answer and return the information subpoena within 14 days from the date on which it was served. An information subpoena cannot be served more than once in a six month period without approval of the court. If the debtor does not answer the information subpoena, he or she is subject to contempt sanctions enforceable by the court.
COURT ORDER FOR DISCOVERY
Another approach for seeking information about a debtors assets is for your attorney to file with the court a petition stating the amount due on the judgment. The court issues an Order requiring the debtor or any person who has information about the debtors assets to answer questions concerning these assets at a place and time specified in the court order. A person may be required to appear only once without another court order. Your attorney may serve a copy of the order for discovery upon the debtor or other person either personally or by registered or certified mail, return receipt requested and simultaneously by regular mail at least 10 days before the appearance date. If the debtor or person named in the court order does not comply with the court order and fails to appear at the specified time and place to provide information about the debtors assets, he or she is subject to contempt sanctions enforceable by the court.
Court Rule 4:59 (e) Supplementary Proceedings. In aid of the judgment or execution, the judgment creditor or successor in interest appearing of record, may examine any person, including the judgment debtor, by proceeding as provided by these rules for the taking of depositions or the judgment creditor may proceed as provided by R. 6:7-2, except that service of an order for discovery or an information subpoena shall be made as prescribed by R. 1:5-2 for service on a party. The court may make any appropriate order in aid of execution. If the warrant for arrest is not executed within 24 months after the date of the entry of the order authorizing it, both the order and the warrant shall be deemed to have expired and to be of no further effect.
COLLECTING AN OUT-OF-STATE JUDGMENT
Article 4 of the United States Constitution provides that a judgment awarded in a court of one state is entitled to full faith and credit in the courts of another state. To give a judgment awarded in another state validity to be collected in New Jersey, another lawsuit must be started in the appropriate court in New Jersey. To attempt collection or enforcement of an out-of-state judgment where the amount due is within the monetary limits of the Special Civil Part, you must file a complaint with an exemplified copy of the out-of-state judgment attached with the Office of the Clerk in the county where the defendant lives or is located.
SETTLEMENT
If a case is settled before trial, the plaintiff is responsible for filing a stipulation of dismissal with the Special Civil Part. If a judgment is paid, with or without the aid of a Court Officer, the plaintiff is responsible for filing a warrant of satisfaction with the Special Civil Part
Restrictive Covenants
Non-compete Covenants in employee agreements - Dont Let Your Employees steal your Clients
By Kenneth Vercammen, Esq. Most businesses spend thousands of dollars developing client lists, training staff and promoting and advertising their businesses. After investing substantial time and money in good will, an owner needs to protect the business from employees attempting to leave and take away accounts. Without a non-compete clause and a restrictive covenant, an employee can open up a competing business on the same street! An employer does not want to pay an employee to build relationships and develop a business, only for that employee to leave, take the fruits of the employers investment, and compete directly against the employer. The NJ Supreme Court granted greater protection to employers and businesses in Lamorte Burns & Co., Inc. v. Walters 167 N.J. 285 (2001)
The Court in Lamorte held: By secretly collecting confidential and proprietary client information while employed by Lamorte Burns & Co., Inc. and using the data to solicit and take away Lamortes clients immediately after resigning, Michael Walters and Nancy Nixon breached their duty of loyalty, tortiously interfered with Lamortes economic advantage, misappropriated confidential and proprietary information, and competed unfairly.
The Court in Lamorte determined that: The client information gathered from Lamortes files by Walters and Nixon was not generally available to the public, would not have been known to defendants but for their employment by Lamorte, went beyond mere client names, and gave defendants an advantage in soliciting clients after they resigned. Walters and Nixon knew Lamorte had an interest in protecting the information. The client information was confidential and proprietary.
The Supreme Court in Lamorte also determined that: An employee may prepare to start a competing business while employed by the entity he will compete with, but may not breach the undivided duty of loyalty owed the employer while still employed by soliciting the employers customers or engaging in other acts of secret competition. Walters and Nixon breached the duty of loyalty by collecting protected information while employed by Lamorte for the sole purpose of gaining an advantage over Lamorte as soon as they resigned.
The Supreme Court in Lamorte held that: Walters and Nixon acted with malice and in a manner contrary to the notion of free and fair competition by using the secretly gathered confidential client data to effect a weekend coup, knowing that the delay in Lamortes discovery of their resignation and solicitation would work to their economic advantage Restrictive covenants are very useful for businesses to prevent an employee from taking your clients and your business.
Recently, the NJ Supreme Court ruled an non-compete covenant as enforceable and not against public policy. In Maw v. Advanced Clinical Communications, Inc (ACCI) 179 N.J. 439, 846 A.2d 1222. (2004). In this case, Karol Maw began working for Advanced Clinical Communications, Inc. (ACCI) as a graphic designer on November 1, 1997. ACCI provides marketing and educational services for the pharmaceutical and healthcare industries. Maw had been hired to design written materials used by ACCI in its marketing and educational programs. Maw was promoted to Senior Graphic Designer in January 2001. Thereafter, pursuant to a new company policy, ACCI required all of its employees at or above the level of ³coordinator² to sign a non-compete agreement as a condition of continuing employment. The agreement precluded, among other things, Maw from becoming employed by any competitor or customer of ACCI for a period of two years following the termination of her employment. Maw was informed that she could seek legal advice concerning the employment agreement. Maw consulted her father, an attorney, who suggested changes. Maw presented those revisions to ACCI¹s Human Resource Department but was told that no changes could be made. Maw did not sign the non-compete agreement, prompting her termination by ACCI in March 2001 for failing to comply with company policy. The court in Maw held her conscientious employee CEPA claim must fail because our State¹s public policy respecting noncompete agreements is not set forth in a ³clear mandate,² and does not ³concern[] the public health, safety or welfare or protection of the environment.² N.J.S.A. 34:19-3c(3). Over a generation ago, our Court sketched the broad parameters for determining whether a noncompete agreement was unenforceable. Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25 (1971); Solari Indus. Inc. v. Malady, 55 N.J. 571 (1970). In Solari, the Supreme Court canvassed, the historical treatment of noncompete agreements, and acknowledged the previously held negative view of such agreements. 55 N.J. at 575-84. The Court cited academic writings on the topic that elaborated in greater detail on the relation of such agreements to Anglo-American commercial practices. See, e.g., Solari, supra, 55 N.J. at 574-77 (citing Harlan M. Blake, Employee Agreements Not to Compete, 73 Harv. L. Rev. 625 (1960)). The court in Maw further held: But Solari was a turning point, for the Court held then ³that the time is well due for the abandonment of New Jersey¹s void per se rule in favor of the rule which permits the total or partial enforcement of noncompetitive agreements to the extent reasonable under the circumstances.² 55 N.J. at 585. In Whitmyer, supra, The Court expanded on Solari, establishing what is now known as the Solari/Whitmyer test for determining whether a noncompete agreement is unreasonable and therefore unenforceable. Under the Solari/Whitmyer test, a noncompete agreement is enforceable ³if it Osimply protects the legitimate interests of the employer, imposes no undue hardship on the employee and is not injurious to the public.¹² Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609, 628 (1988) (quoting Whitmyer, supra, 58 N.J. at 32-33). The first two prongs of the test require a balancing of the employer¹s interests in protecting proprietary and confidential information and the asserted hardship on the employee. Ingersoll-Rand, supra, 110 N.J. at 634-35. The third requires the reviewing court to analyze the public¹s broad concern in fostering competition, creativity, and ingenuity. Id. at 639. Solari/Whitmyer has now become an accepted part of the common law, not only in New Jersey but also in other jurisdictions around the country. Id. at 630-34. The court in Maw further held: Although our dissenting colleagues may contend that do-not-compete provisions are, or should be, per se illegal, in point of fact, they are not illegal per se. It is not accurate to describe our current caselaw, which allows enforcement of reasonable non-compete agreements, as a ³clear mandate² that disfavors such agreements. The Solari/Whitmyer test is a multi-part, fact-intensive inquiry. Not only must multiple interests of differing parties and entities be identified, but also, those interests must be gauged for reasonableness and legitimacy. The application of that test here, and as a general matter, simply does not evoke the type of a ³clear mandate of public policy² that was contemplated by N.J.S.A. 34:19-3c(3). The court in Maw further held: The Court are informed by the amici that non-compete agreements are a common part of commercial employment. The Court do not accept as a premise that employers, in large numbers, are engaging in a practice that is ³indisputably dangerous to the public health, safety or welfare.² Dzwonar, supra, 177 N.J. at 464. It is more appropriate to characterize the business community as having adapted to the Solari/Whitmyer approach that recognizes that noncompete agreements can serve a useful purpose so long as the agreement is not unreasonable. The court in Maw concluded that plaintiff¹s private dispute over the terms of the do-not-compete provision in her employment agreement does not implicate violation of a clear mandate of public policy as contemplated by Section 3c(3) of CEPA. As previously noted, plaintiff did have options available to her. If she could not negotiate terms that were to her liking, she was free to dispute the reasonableness of those terms if and when her employer attempted to enforce the agreement. The burden then would be on the employer to hire counsel and initiate enforcement litigation, Solari, supra, 55 N.J. at 574, and nothing would preclude an employee-defendant in such an action from asserting any and all affirmative defenses and counterclaims. Ingersoll- Rand, supra, 110 N.J. at 621-22
Uncontested Divorce
When individuals have family problems, family and service groups can often offer advice and help resolve problems. If separation or divorce is unavoidable, you should see an attorney for advice on how to protect your rights. Areas to Discuss at Initial Interview
When you first meet with your attorney, you should discuss and ask questions regarding the following:
Resolving marital problems
Financial concerns involving child support, alimony, spousal support, pendente lite support and equitable distribution of property acquired during the marriage
Determining child custody and visitation
Grounds for divorce
Domestic Violence Act and Restraining Order
Legal Rights and procedures in court
Retaining the attorney and payment for legal services and costs
Emergency Decision By The Court If necessary the Superior Court can make temporary decisions regarding:
Restraints to keep a violent spouse from harassing and interfering with your life
Occupancy of your house, apartment or condominium
Temporary custody and visitation of minor child
Temporary financial support for children and spouse
Injunction against disposal of personal property, real estate and other assets
Other temporary orders in the discretion of the Judge
Grounds For Divorce Under NJ laws a divorce may be granted for any of the following causes:
Adultery
Willful and continued desertion for 12 or more months, either physical desertion or refusal to have sexual relations with the other spouse may establish this cause.
Extreme cruelty, including any physical or mental cruelty that endangers your safety or health, or which makes continued living together improper or unreasonable.
Separation, if separate and different places of living have been maintained for a least 18 consecutive months or more and there is no reasonable prospect of reconciliation.
"No-Fault" is the familiar term for a divorce based on the separation for at least 18 months. Neither side needs to set forth allegations of fault or abuse. Court appearances are still required.
Voluntarily-induced addiction or habituation to a narcotic drug or habitual drunkenness for 12 or more consecutive months.
Mental illness which resulted in the spouse being kept in an institution for 24 or more
consecutive months after the marriage was begun.
Imprisonment of the spouse for 18 or more consecutive months after the marriage was begun. ( This cause for divorce can be charged after the defendants release from prison only if the husband and wife have not resumed living together after imprisonment ended.)
Deviant sexual conduct voluntarily performed by the defendant without the consent of the spouse.
Is there a "legal separation?"
Technically, there is no such thing in New Jersey as a "legal separation." Separation simply means that you and your spouse no longer live together. Separation may occur by mutual consent or by one of you leaving or being expelled from your home.
What if my spouse has physically abused me?
If there has been actual or threatened physical abuse, your spouse may be ordered by the court to leave your residence and to stay away.
Filing For Divorce
A formal written document called a "complaint" will be prepared by your attorney based upon the information you have supplied. You must sign a statement to verify that the information in the complaint dealing with marriage, residency, children and grounds for divorce are true.
The complaint is filed with the Superior Court of New Jersey, Family Part. A copy of the complaint must then be served on your spouse, either by the County Sheriff, by mail or in person. The attorney for the defendant spouse may accept service of the complaint in lieu of the sheriff serving the complaint.
What The Defendant Spouse Must Do
If served with a Complaint or demand letter from an attorney, you should immediately consult an attorney for advice. If you contest any of the statements in the complaint, you must have a formal pleading called an "answer" filed on your behalf. You can contest alimony, custody, child support and/or equitable distribution of property. You can also file your own complaint called a "Counter-Claim." Even if you do not object to the divorce, you should speak with your attorney because other issues could effect you for many years in the future. If an answer is not filed, a default will be entered against you and a judge will make a decision without your opinion. Thereafter, you will bound by the decision of the judge. Failure to obey all portions of the court order can result in financial penalties and arrest.
Case Information Statement
If child support, alimony and equitable distribution are in issue, both spouses must fill out a Case Information Statement (CIS). This demands comprehensive information regarding your weekly, prior year and current assets, and liabilities. The court will use financial information contained in the CIS to make a determination as to the amount of child support.
Litigation
In addition to the CIS, in a contested matter, Court rules permit the attorneys to require the parties to supply written answers to interrogatories (questions), depositions, (verbal answers), produce documents or admit details.
How Long Does It Take
When the divorce will be granted depends on many details. The more you and your spouse can agree upon, the faster your case can move along. There is a substantial backlog of cases that is beyond the control of your attorney. In an uncontested divorce, where all issues are agreed upon, Final Divorce hearing and divorce could be granted within a few months of filing the complaint. If any issues are contested and cant be settled, a trial and final decision could take years.
Property Settlement Agreement
The parties may agree on signing a written agreement dividing marital property and setting forth support payments. A written agreement can be made prior to the complaint or pending trial. The agreement can provide for custody, visitation, alimony, medical expenses and insurance coverage.
After a husband and wife separate, and especially if they intend to divorce, it is desirable for them to enter into a written contract to provide for: division of real estate and personal property; support, if any, payable to the dependent spouse and children; responsibility for debts and legal fees; health and life insurance arrangements; custody and visitation of children.
Also included are many other items which set forth the mutual rights and duties of the two people. Such an agreement is a contract, but may be enforced as though it is an order of court, (except certain portions such as child custody, support and visitation, which may be modified by the Court), depending on its terms and contents. It is written by your attorneys and follows negotiations between you and your spouse and your attorneys.
Child Support
The judge will follow written guidelines when determining child support. The judge will look at the income of both parties and make an order compelling child support within the guidelines. The judge could also order medical and dental insurance, the payment of day-care and baby-sitting, private school tuition, and life insurance on each parents life with the child as the beneficiary. The court may also order payment of future college tuition.
Who is responsible for the support of the children?
The law imposes a duty on both parents to support their children. This obligation exist even if the parents are not married, and it continues after divorce. In determining the amount of child support to be paid by one parent to the other, the court will consider the respective incomes, earning capacities, assets and needs of both parents, and the needs of the children. The Judge has a "chart" in which he must follow to determine the amount of support that can be compelled.
What is the procedure for obtaining spouse and child support?
A person seeking spouse and/or child support may file a motion for support in the Family Court, in many cases and in all cases involving welfare, a conference will be held by a hearing officer at which both parties will be required to disclose their respective incomes and assets and prove their respective needs. An attempt will be made by the hearing officer to have the parties reach an agreement as to the amount of support. If an agreement cannot be reached, the usual procedure is for the hearing officer to submit a recommendation to the court.
If either party is not satisfied with the recommendation, he or she may demand a hearing before the court at which the order could be modified. If both parties are satisfied with the order entered by the court on the hearing officers recommendation, it will be the final order.
Can a support order be changed?
Either spouse or parent may seek modification (increase or reduction) of a support order if he or she can demonstrate that a material and substantial change of circumstances has taken place since the order was entered. An increase or decrease in earnings or an increase in the needs of the children as they grow older are examples of material and substantial changes in circumstances. Once a child reaches age 18, and is out of school the parents generally are no longer required to support that child. A motion must be made in the Superior Court to reduce or end support. However, if the child is unable to support himself or herself because of some physical, mental or emotional disability, the duty of support continues beyond 18. Parents may also be required to pay support to a child who is attending college.
Custody And Visitation
The "best interest of the child" is the basis on how the judge awards custody of the child. The mother is no longer automatically given custody of the children. The judge looks at the age and sex of the child, ability of the parent to care for the child, personal relationships and, if older, the wishes of the child. Visitation will also be ordered under most circumstances. An equal sharing of physical custody of children is also possible in appropriate cases.
As children get older, greater weight is given by the court to the childs preference as to which parent he or she wishes to reside. An important factor considered by the court is the continued residency of children in a familiar and stable home environment.
Courts are reluctant to disturbance existing arrangement if the children are doing well. The courts are also reluctant to split children between two parents because courts believe that it is in the best interest of brothers and sisters to remain together even though their parents have separated or are divorced.
Equitable Distribution
Most parties eventually reach an agreement to divide property. In New Jersey, each spouse is entitled to a share of the property acquired during the marriage. There is not an automatic 50/50 split. Rather, the judge will make an "equitable distribution" of property after hearing testimony. There is no magic formula. The judge has discretion.
Final Judgment
Upon agreement or after a trial, the judge will enter a "Final Judgment of Divorce". This will declare that the marriage has ended. The judge will sign the Final Judgment of Divorce and it will be filed with the Superior Court in Trenton.
The Final Judgment will also set forth items agreed upon or ordered, such as custody, support, and equitable distribution. After the Divorce, to make a change in support, custody, visitation etc, a formal motion must be made to the Superior Court. In this motion you must demonstrate a change in circumstances.
Our hourly retainer rates are $250 per hour in office and $275 per hour outside office. Minimum fee in uncontested Divorce $1,500
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