Edward R. Weinstein, Esq.

Articles Posted in Legal Update

Over the course of my 20 years as an attorney, I have protected the rights of many domestic violence victims. I have always been very proud to be a lawyer in the state of New Jersey given the progressive nature our state legislature has in protecting victims. I’ve previously talked about new laws and initiatives in our state to help and protect victims.

And once again, at the end of 2012, New Jersey did not disappoint. Police officers in our state now have a new training resource from the Attorney General’s Office.

In 1991 the New Jersey Prevention of Domestic Violence Act, 1991 (provide link) was established. This piece of legislation mandates that every New Jersey police officer go through 4 hours of annual training in domestic violence.

And the new online program helps satisfies that requirement in a very cost-effective way by bringing the training program online.

Here is the problem: when training has to be live, there were severe scheduling problems. Police departments have officers employed 24 hours a day. If there are officers from day and night shift who need a particular training, they have to pay overtime to get them scheduled on days off. The new program is offered free to all police departments.
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Many divorced parents revisit their child support arrangements when a child enters college. If the parents have been divorced for many years, college expenses may be significantly different than originally estimated. Additionally, parents may have had a change in their personal financial circumstances.

Often clients ask me a variation of the question “now that my child is in college, do I still have to pay child support?” Recently, a New Jersey Appellate Division handled that very question.

The scenario: The Jacoby’s were divorced and had two children. When the first entered college, Mr. Jacoby filed to reduce his child support payment to his ex-wife on the grounds that the child was no longer living full-time in her house. The court granted the change using formulas that showed that in fact the household expenses were lower since the child was not home full-time.

When the second child went off to college, Mr. Jacoby once again filed to have support modified on the same grounds, however this time it was denied and he appealed. You can click here to see the full ruling from the appellate court here.

The court did agree that the launch of a child off to college is certainly grounds to revisit support, the court stated that it was not an automatic occurrence, and many factors, including those related to the children and both parents should be considered. Citing several cases, child support modifications must be done in the best interest of the children. The occurrence of going to college may not in fact have such a drastic effect on the amount of child support paid.

How this can apply to you:
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In negotiating child custody and support arrangements, there are many unfortunate and often heartbreaking discoveries made. Most commonly affairs and financial deceit are uncovered. But few things are as painful as a client learning that they are in fact not the biological parent of the child they raised as their own. Legally, these fathers may be able recover money spent raising that child if we come to learn of the mistaken paternity. With reasonable doubt a father can petition the court to mandate a paternity test. But what if the mother and now adult child object to the test? The New Jersey State Supreme just ruled on such a case involving a family in Morristown, NJ.

After a marriage lasting decades, the husband, Richard, discovered inappropriate text messages on his wife Diane’s phone from her boyfriend. The marriage unraveled and the husband became suspicious that their youngest child (Mark) may not be his. An at-home paternity test confirmed his suspicions and the wife then admitted that at the time of Mark’s conception, she had an affair (with her brother-in-law) calling the child’s paternity into question.

As you can imagine, the husband was devastated and felt he was entitled to recover the money he had put into the child since his birth. The only legal recourse is to sue the wife, a process that would start with a legitimate paternity test. Mom and son refused so the issue headed to court.
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October is National Domestic Violence Month and as a New Jersey Divorce and Family Lawyer I am very proud to live in a state where laws are place to provide protection to victims. Currently, victims of domestic violence can take legal refuge under the The Prevention of Domestic Violence Act, (a readable brochure is available by clicking here). In addition to put very specific and strong language around what constitutes an act of domestic violence, this act provides victims with two very important forms of relief:
1) Civil relief: ability to file a restraining order.
2) Criminal relief: victims can file criminal charges against the abuser.
On numerous occasions this act has enabled me to protect my clients ensuring their safety and protection from violent acts committed against them by family and household members.

In an effort to straighten the penalties for offenders and provide greater support for victims, there are two very important pieces of legislation under review by the New Jersey Legislature.

The first, is A-3271 sponsored by Assemblywoman Celeste M. Riley . This bill would make it a crime to commit an act of domestic violence in the presence of a minor child (under 16 years of age). An offender could face the possibility of conviction both for the original act of violence and of committing that act in the company of a child. In Ms. Riley’s own words: “Many children who have witnessed domestic abuse at home develop emotional and behavioral problems that impact their development. They often carry that scar into adulthood and see violence as an appropriate reaction to conflict. It’s a sickening cycle with dangerous consequences,” said Riley. “This bill recognizes that in a household inflicted by domestic violence, children who witness the abuse are victims as well and creates the appropriate punishment.”
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Even though I practice New Jersey Divorce and Family Law, I have always, since Law School, loved the study of our Constitutional and the times it has been challenged. As such, I have been closely following the Defense of Marriage Act (DOMA) as it has gone through several rounds of challenges. A brief background: in 1996, the United States Congress ratified DOMA in anticipation of states starting to allow same-sex marriage. This legislation was enacted with the overarching spirit that the federal government would not recognize same-sex marriages and gave state legislatures the right to not acknowledge them as well. These two points are stated in the two most controversial parts of the act:

Part 2: States are left completely on their own (as well as tribes and territories, and possessions of the United States) to recognize a same-sex marriage from another state, tribe, territory or possession. So if you are a gay couple married in New York (where same-sex marriage is legal) and you decide to a move to a state where it is unrecognized, your new state does not have to recognize it.

How does DOMA Part 2 affect Gay and Lesbian Couples living in New Jersey? Well if they are married in New York (where same-sex marriage is legal) and then move to New Jersey (where same-sex marriage is not legal), NJ is not required to recognize you as a married couple.

Part 3: This part states that under no circumstances can same-sex couples be viewed as married under any and all federal laws, programs, rights, and cannot derive any benefits. As such, any department administering rights and benefits must disregard valid state issued marriage licenses to same sex couples. Additionally, for federal purposes, marriage can only be the legal union of a man and a woman and spouse can only refer to a partner in a couple of the opposite sex.

How does this affect Gay and Lesbian Couples? If you are in a same sex relationship, and one partner works for the federal government, the other is not entitled to health insurance benefits.
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Contested Divorce in Essex County New Jersey is back in business. Since December, all contested Essex County divorce proceedings were suspended due to a serious shortfall of judges, the first time this action had been taken in nearly a decade. The suspension of contested divorces eased the docket by approximately fifteen percent over the last eight months but created a substantial backlog. The eight month hiatus will end in September after three Superior Court Judges from Mercer, Morris and Passaic counties will be temporarily transferred to Essex County Courthouse for an unspecified period of time. While the news is welcoming, it is expected to take 18-24 months before relief is seen in the docket due to the backlog created.

Contested matrimonial divorce proceedings are still suspended in Union County, NJ. This decision was made in June, 2012 due to a lack of judges to fill the bench. The shortfall here is worst than Union with thrity six percent vacancy rate. And the vacancy rate is just part of the problem, summer vacations and retirements left no choice but to suspend all trials.

The shortfall of judges is a political one, with nominations and appointments handled at the state level. But never before has the judicial system in these two counties faced such crisis.
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