Category: Property Laws

What is a Divorce From Bed and Board?

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New Jersey Divorce Lawyers represent clients in divorce and separation proceedings.There may be times when pursuing an absolute divorce may not the best choice for a couple. For example, when a couple decides that they wish to live separate lives, but are not ready to proceed with a divorce. In such a situation, the parties may find that a divorce from bed and board accomplishes their shared goal of separating their respective lives, while still preserving their matrimonial bond in the eyes of the law. See Lavino v. Lavino, 23 N.J. 635, 638-39 (App. Div. 1957). Alternatively, an absolute divorce is a complete and final severance of the marital bond, and all of the rights, benefits, and recognitions that come with it. Ibid. Other reasons that a couple may decide to pursue a divorce from bed and board as opposed to an absolute divorce can include religious, financial, or emotional reasons.

A divorce from bed and board is similar to an absolute divorce in some ways. For example, New Jersey law provides that a divorce from bed and board may be based on the same grounds as an absolute divorce, including irreconcilable differences. N.J.S.A. 2A:34-3a. Additionally, in a divorce from bed and board, the property rights of the parties will be determined and finalized, just like it would be in an absolute divorce. See Loechner, v. Loechner, 119 N.J. Super. 444, 445 (Chan. Div. 1972).

Nonetheless, a divorce from bed and board does offer unique benefits. If, after a judgment for divorce from bed and board is granted, the parties reconcile, they can simply make an application to the court to revoke or suspend the judgment of divorce. Ibid. Such an option is not available with an absolute divorce. However, with a divorce for bed and board, if either party later decides that he or she wants an absolute divorce; either party can make an application with the court to convert the divorce from bed and board to an absolute divorce, which the Court will grant “as a matter of right.” Ibid.

A divorce from bed and board also presents some limitations that do not exist in an absolute divorce. For example, in a divorce from bed and board, a court will not grant a wife’s request to change her name back to her maiden name because the martial bond still exists in the eyes of the law. See Leggio v. Leggio, 436 N.J. Super. 641, 643 (Chan. Div. 2014).

Whether you are considering a Divorce from Bed and Board or an absolute divorce, our skilled and knowledgeable divorce lawyers in New Jersey are available to speak with you and answer any questions that you may have. We welcome you to reach out to Lyons & Associates by calling our office at 908-575-9777 or submit an online inquiry to schedule an appointment.

Written by: Joanna Adu, Esq.

Can My Weapons Be Taken if a Restraining Order is Filed Against Me?

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New Jersey Divorce Lawyers discuss weapon ownership and restraining ordersIf a Restraining Order is filed against you, the police may confiscate any type of weapon or weapons that may cause harm or bodily injury to the alleged victim, including but not limited to firearms or your Firearms Purchaser Identification Card and Carry Permit. In fact, the Prevention of Domestic Violence Act requires the police to seize all weapons and permits if there is probable cause of domestic violence.

In addition to the initial confiscation, the State can move, pursuant to N.J.S.A. 2C:58-1, et. seq. and N.J.S.A. 2 C:27:17 et. seq, that the weapons not be returned and the card and permit revoked. However, as Defendant you are entitled to a Weapons Forfeiture Hearing. During this hearing, the court will determine whether or not your weapons will be returned.

In New Jersey there are different types of Restraining Orders, including Temporary Restraining Orders (TRO) and Final Restraining Orders (FRO). Whether or not the TRO is converted into a FRO will have an effect on whether or not your weapons are returned to you, but it is not the final determining factor. If the court issues a FRO against you, it is more likely than not that you will not be getting your weapons back; however, you are still entitled to a hearing. Conversely, if the TRO is dismissed and a FRO is not issued, the court may still hold a hearing to determine whether or not your weapons will be returned to you and whether or not the forfeiture is found to still be warranted pursuant to N.J.S.A. 2C58-3c.

“The burden is on the State to prove, ‘by a preponderance of the evidence, that forfeiture is legally warranted.’” In re Forfeiture of Personal Weapons and Firearms Identification Card belonging to F.M., 225 N.J. 487, 508 (2016)(emphasis in original)(quoting State v. Cordoma, 372, N.J.Super. 524, 533 (App. Div. 2004)). At the forfeiture hearing the court will look at, amongst other things, whether or not a FRO was issued, whether the weapon or weapons were actually used in an act of domestic violence, and whether you have a criminal history.

If the facts of your matter demonstrate that pursuant to the statutory law you are unfit to possess firearms and weapons, and such possession poses a threat to the public in general and to the alleged victim of domestic violence in particular, the State will request that an Order be entered directing that your weapons not be returned and that any Firearms Purchaser Identification Card and Carry Permit that you possess be revoked. As such, it is important that you hire a qualified and experienced attorney to navigate through this process.

If you or someone you know has any questions about a Weapons Forfeiture Hearing and what that entails, contact one of the skilled divorce lawyers in New Jersey at Lyons & Associates at 908-575-9777. You can also fill out our online intake form.

Written by: William P. Lemega, Esq.

Mendham Divorce Lawyers Discuss Protecting Your Assets

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Mendham Divorce Lawyers discuss Protecting Your AssetsDivorce can often come as a surprise, but there are ways to minimize the surprise consequences after your divorce is finalized. While the marriage may be legally ended, your ex-spouse may still stand to inherit some of your assets when you pass away. When the divorce decree has been accepted and settled, there are several steps that should be taken immediately to protect your estate and your interests.

It is important to have thorough documentation of all of your assets, including wills, trusts, life insurance policies, retirement accounts, pay-on-death bank or brokerage accounts, and any powers of attorney that you may have, such as property, healthcare, or HIPAA. Take note of who the beneficiary is on your assets and update them as needed. Updating your estate planning documents is not sufficient to prevent your ex-spouse from inheriting your assets if they are still listed as the beneficiary, so you must be sure to update the policies and accounts themselves.

Updating Your Will is the First Step to Protecting Your Assets

If you do not have a legally binding will in place, then your ex-spouse will not automatically inherit any other property you may have as they are no longer your legal heir. If you have a will that names your ex-spouse as the beneficiary, however, it is essential to revoke it and replace it with an updated will. Not only will this allow you to establish a new beneficiary for your property, but also to name a new executor. This is also an opportunity to designate a guardian for your children if they are under the age of 18, if guardianship does not automatically pass to your ex-spouse.

Issues related to child support are less straightforward when a parent passes away. Most parents will name their child as the beneficiary of their assets, but child support can still be collected after the death of a parent even if this is not the case. The living parent can file a claim to continue collecting child support from a deceased’s parent’s Social Security, property, or bank accounts.

Keep in mind as you are updating your documents that any changes made to your estate plan must be in line with the terms of your divorce decree. If you have specified in the terms of your divorce that your ex-spouse will remain the beneficiary of any of your assets, this cannot be changed. An experienced divorce lawyer can help you ensure that the divorce agreement protects your interests and that you remain in compliance with that agreement when updating your accounts after a divorce.

Mendham Divorce Lawyers at Lyons & Associates, P.C. Help Clients Navigate Financial Settlements

Mendham divorce lawyers at Lyons & Associates, P.C. can help you with all aspects of your divorce, including managing your asset plan. We understand that every family is different, and we are committed to finding an agreeable solution that protects your interests. With offices conveniently located in Somerville, New Jersey, we help families throughout New Jersey. Call us today at 908-575-9777 or contact us online for a free consultation with a knowledgeable divorce lawyer in New Jersey.

New Jersey Divorce Lawyer: Buyout Your Ex

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You’re in the middle of a divorce and you want to stay in your home. You and your spouse both feel the stability will be good for the children. While it may give your children stability, it may just put you in the poor house. Often, the party who will not be living in the home any longer does not want to be responsible for it. This leads us to the concept of “buyout” – where one party buys the other party’s share of the home.

Often, this is done through refinancing the current mortgage with only one spouse’s name on it. For example, suppose your home is worth $400,000 if it were to be sold on the real estate market. Also, suppose when the parties decide to sell, there is still a $200,000 mortgage on the home. In simple terms, the profit if it were to be sold or the equity in the home would be approximately $200,000. Therefore, each of you would walk away with $100,000 from the sale of your home. If one party decides to buyout the other party, he or she would pay his or her ex-spouse $100,000 or the amount the ex-spouse would have been entitled to if the house were sold on the real estate market. The problem is many people don’t have that kind of money available to them. Often the solution is to refinance the mortgage for more than is currently owed on the home in the name of the spouse that wants to keep the home. By obtaining a new mortgage in the amount of the current mortgage plus one half the equity in the home, the spouse staying in the home is able to give the other spouse his share of the equity and transfer the house to her own name. It is as if the spouse staying in the home bought the home by herself. The difficulty becomes obtaining a new mortgage based on one income.

When you apply for a mortgage, the bank or mortgage company looks at your income, your assets, debts and monthly payments. If you are the spouse that would like to keep the home but is also paying alimony and child support, those will be strikes against you. If you are the spouse that is being paid alimony and child support but only has a part-time job, the banks won’t consider this new found income in the form the of alimony and child support until it has been paid to you consistently for a period of 12 months. Most ex-spouses don’t want to wait 12 months to be bought out of a home. Usually, the parties want to sever ties quickly.

The other possible issue for the spouse receiving alimony and child support is the lack of a full-time job coupled with a shortage of assets. Let’s suppose the spouse receiving alimony and child support wants to buyout the spouse making those payments. Going back to our original example, she forgoes taking assets such as the 401(k) or stocks and bonds as payment for her share of equity in the home and then is only responsible for the mortgage of $200,000 which she must still refinance into her name only. She has no assets to add to the application and financially, no back up in case she loses her part-time job or her ex-spouse stops paying alimony. The bank sees this person as a risk and she may not qualify for a loan.

Bottom line: Make sure you speak with a qualified mortgage person and/or real estate attorney before you move forward and agree to buyout your spouse. Our divorce lawyers in New Jersey at Lyons & Associates, PC pride ourselves on giving sound advice in many areas, including real estate. We place a premium on personalized service and attention. For a private consultation, contact us online or call our offices at 908-575-9777.

 

Author: Chris Ann Wright

Woodbridge Divorce Lawyers: Retirement Nest Eggs

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Retirement Nest EggsThe process of divorce is often stressful, but when it comes to the equitable distribution of a couple’s retirement nest egg, a whole new level of stress can develop. If these funds are not split properly, a myriad of tax problems and other legal issues can occur. Consulting with an experienced New Jersey divorce lawyer like those at Lyons & Associates, P.C. can help ensure that your rights and your financial resources are protected.

IRAs, 401ks, and pension plans are often the largest financial assets in a divorcing couple’s portfolio. Making sure they are divided fairly and properly will avoid taxation issues and early withdraw penalties. An IRA account could mistakenly be subjected to these penalties if not properly transferred as an “incident to divorce.” They must also be approved by the sending and receiving IRA custodians, the judge, and state court. Failure to meet these provisions can result in substantial tax penalties if your spouse receives their benefit as normal income.

Filling Out a Qualified Domestic Relations Order

Qualified plans require a Qualified Domestic Relations Order (QDRO), which is a legal document that allows the retirement plan to pay benefits to an ex-spouse. The ex-spouse can then add these funds to an IRA or to their own qualified plan. The transaction is tax free, but only if it is designated as a QDRO and reported to the judge and the IRS. Failure to designate the transaction as QDRO will leave you liable for taxes and penalties.

It is imperative that each spouse in a divorce updates their beneficiaries when they roll over or invest the retirement funds. Qualified plans generally follow the same rules of awarding retirement benefits to an ex-spouse if the beneficiary designation was never changed. Even if the will of a deceased ex-spouse states a different beneficiary, proceeds from a qualified plan will be awarded to the designated beneficiary on the retirement plan. If the ex-spouse had given up their rights to the retirement benefits in the divorce settlement, then it is important that this is clearly stated on beneficiary documents.

When retirement nest eggs need to be split up between a divorcing couple, it is advisable to consult with an experienced and reputable divorce lawyer. At Lyons & Associates, P.C., we are dedicated to helping our clients reach amicable settlements as efficiently and stress free as possible. We understand that your retirement is a vital part of your financial security that needs to be protected during your divorce proceedings.

Woodbridge Divorce Lawyers at Lyons & Associates, P.C. Provide Clients with Experience and Reliability

If you or someone you know is contemplating divorce, contact the Woodbridge divorce lawyers at Lyons & Associates, P.C. Our team of experienced and reliable attorneys is committed to ensuring your legal rights are protected. Call us at 908-575-9777, or contact us online to schedule a consultation today. Our offices are located in Somerville, New Jersey and we serve clients throughout the state.

Not Your Father’s Advisor: Getting Your Financial House in Order before You Divorce

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Not Your Father's Advisor discussGetting Your Financial House in Order before You DivorceThe average person keeps their finances on the back burner, and when it comes to divorce, the trend continues. There are a few things you can do to better prepare yourself financially for a divorce that will propel you toward your goals after its final. Wouldn’t it be nice to start the new chapter of your life with the right foundation for your money? Well you came to the right place, here are 5 critical steps to take when going through your divorce:

  • Cash Flow Statement: The first thing I tell my clients is put their cash flow statements together. It’s a good time to look at their spending habits to see where all the money is going. The cash flow statement is comprised of your net money coming in to the household versus going out with your expenses. Don’t forget to include your salary, any rental income, investment interest, and any other income when completing this. Think about all your fixed expenses such as mortgage payments, rent, utility payments, and food bills. Then put together an estimate for your variable expenses, and always include savings as part of your expenses. Are you spending more money than you make? You will know immediately if you have a deficit every month, are even each month, or have a surplus after you tally everything up. Now after your divorce, how will your expenses change, and how will you make up for the shortfall of living on one income? What areas can you cut back on with your expenses without jeopardizing your retirement savings or other savings goals?
  • Credit Score: Another crucial area of finance is your credit score. It is essential to get a credit card in your own name and to start building a credit history. Try to pay off your credit card bills on time as credit card interest can be your worst enemy if it builds up. After the divorce, make sure to take your ex-spouse off your credit cards even if they are just an authorized user. Doing this can easily be overlooked, but it is very important to do. Unless you’d like your ex-spouse to rack up your credit card bills, but probably not.
  • Net Worth Statement: Before you start your settlement negotiations, put together a list of all your investment and retirement accounts. Everything should be accounted for, and think about the tax implications of selling a certain asset versus another. How much of a taxable event will the sale make, and will there be a penalty for liquidating it now? You don’t want to receive all pre-tax money in your divorce settlement because you will be left with a lot less after paying the tax bill. Having some money set aside in your savings account will be a big help. You don’t want to incur credit card debt or have to sell something with a big taxable gain to cover your expenses. When in doubt speak with an accountant or financial advisor, because a small mistake with money can be a very costly And the IRS isn’t very forgiving even if you had a rough divorce.
  • Estate Planning: Lastly, you should start thinking about your estate plan, and what you will need to change once the divorce is over. You will most likely have to update your will, power of attorney, and living will after the divorce is final. Another disregarded area, is your beneficiary designations for your life insurance and retirement plans. Make sure to consult with an estate attorney on how best to leave your estate to your loved ones after you’ve moved on from the divorce.
  • Your Plan: It is time to start getting your plan in place for after your divorce. A plan begins when you start to really think about what you want for your new life. What would you love to discard from your current life and what do you want? Once you’ve gained clarity over what you want and deserve for your new life, what are the strategies to get you there? And what behaviors do we need to adjust or modify to get you there and to keep you there? Take some time to meet with an advisor to put your plan in place. It can be one of the best decisions of your life.

Getting a grasp of your finances, will make you feel more comfortable with your divorce and the settlement. It will give you confidence to move on with your life, and toward your new goals. Being proactive can be one of the best things to do, so if you’d like to schedule a call, simply email Jessica.Weaver@raymondjames.com, and we will make it happen. To read more about gaining financial security and independence, go to www.notyourfathersadvisor.com. My mission is spreading the word to more people, who are confused and overwhelmed by their money and help them identify their options and the impacts of their choices. So what do you say, can we concur your money and get you to financial freedom?

 

Jessica Weaver, CFP®, CDFA™, CFS®

Jessica.Weaver@RaymondJames.com

732.752.9191

54 Grove Street Suite 2A

Somerville, NJ 08876

 

Securities offered through Raymond James Financial Services Inc., Member FINRA/SIPC.

Any opinions are those of the author and not necessarily those of RJFS or Raymond James. Raymond James does not offer tax or legal advice. You should discuss any tax or legal matters with the appropriate professional.

 

New Jersey Divorce Lawyer Discusses How to Protect Marital Assets During Divorce Litigation

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Going through a divorce can be a trying and emotional time. You are negotiating and entering into a final agreement that will hopefully resolve any and all outstanding issues between you and your soon-to-be ex-spouse. Despite the high emotions, it is important that during the divorce process itself, you protect what is rightfully yours to ensure it is still there when the divorce is finalized. After all, your final agreement cannot award you an asset that no longer exists.

The Court has an obligation to protect marital assets pending litigation. See Crowe v. DeGioia, 90 N.J., 126, 139 (1982) (court may intervene with temporary relief “to protect the res from ‘destruction, loss or impairment, so as to prevent the decree of the court, upon the merits, from becoming futile or inefficacious in operation…” (Schreiber, J., dissenting) (citing Guangione v. Guangione, 97 N.J. Eq. 303, 305 (E. & A. 1925)).

It is not uncommon for requests to be made for the Court to prohibit one party from selling, transferring, or dissipating any marital assets which may be subject to equitable distribution. This could be for a variety of reasons including but not limited to a past history of one party taking out loans without the other’s knowledge. Should the other party have any specific reason to deplete marital assets prior to the divorce being finalized, you are going to want to make sure those assets are protected so your eventual share of them is not depleted. Once depleted, the depleting party may not be able to replace whatever asset he/she drains.

If you have reason to believe your spouse may have the motivation or the ability to deplete marital assets during the pendency of your litigation, it is important that you obtain a court order prohibiting them from selling, transferring, dissipating, encumbering, or otherwise adversely affecting any marital assets which may be subject to equitable distribution.

This request should also include a prohibition against either party seeking an advance of loan against their 401k or other retirement plan, if applicable. You can always mutually agree to do otherwise, but in the interim, that court order will ensure your assets are available to you when your divorce is finalized.

If either party does improperly dissipate any martial asset subject to the Order, the Court can deduct the value of same from the offending parties’ share of equitable distribution once the divorce is finalized. To speak to a family law divorce lawyer at Lyons & Associates, please contact us online or call our office at 908-575-9777 to schedule an appointment.

Written By: William P. Lemega, Esq.

New Jersey Divorce Lawyers Discuss Property Laws and Home Ownership if Never Married

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What happens to the house if we were never married?

In today’s world there are many couples who live together in the same home, share household expenses and have children. When couples decide to live together, many are not thinking of the consequences if they split up. What happens if the house is only in one person’s name? What happens if the party not on the deed has been contributing to the mortgage for the last ten years? Is that person entitled to a share of the property?

In most circumstances, the answer is no. Basically, since the parties were never married, the ownership is automatically determined by the names on the deed. If one party’s name was never added to the deed, in the eyes of the law, that person is not entitled to a portion of the home.

However, if the party can prove he or she has been contributing to the mortgage for the last ten years, a court may determine that he or she is entitled to a percentage of the home or to be repaid for the principal he or she paid during those years. Proving this to a court will take a lot of time and money and can be avoided if the parties instead perfect the deed.

When a deed is originally drawn and there are two or more owners of the property, a person’s rights can be preserved. Under Property Law, there are two ways to take ownership of property. The first is called Joint tenancy. This is a form of ownership where each person on the deed has an equal share in the property. Upon death of one of the persons on the deed, the rest of the owners automatically take over the deceased person’s share. Each person named on the deed has a right of survivorship.

The second is called Tenants-in-Common. As a tenant-in-common, each party has a distinct and separate share of the property. Therefore, if a tenant-in-common dies, his share passes through his estate to his heirs. The other tenants-in-common do not have any right to his share of the property unless he is a direct descendant or a beneficiary of the decedent’s will.

It seems odd to think of such a thing when two people are planning their lives together; however, this lack of forethought can prove to be very costly. That’s why at Lyons & Associates, P.C., we are here to help you recognize these pitfalls and protect yourself in the future. The attorneys at the Law Office of Lyons & Associates, we represent men and women throughout New Jersey who have unresolved family law matters, including real estate issues. We place a premium on personalized service and attention. For a private consultation, contact us by e-mail or call our office at 908-575-9777.

 

By: Chris Ann Wright