For over the past twenty years as an attorney practicing divorce law here in New Jersey, I have had countless folks ask me about my opinion regarding post-nuptial agreements (as opposed to a pre-nuptial agreement, which is obviously negotiated, drafted and executed before the marriage). On the other hand, a post-nuptial agreement is executed during the marriage in an attempt to resolve any and all financial issues between the husband and wife just in case a divorce occurs in the future. [Read more…] about Why This Divorce Lawyer Does Not Recommend “Post-Nuptial” Agreements.
Divorce
Are Both Spouses Responsible For Tax Debt In A New Jersey Divorce?
During my many years as a New Jersey divorce attorney I have helped many people start fresh with new lives without their former spouses. Unfortunately I also know that sometimes the mistakes of our former spouses can continue to haunt us. Having to deal with the Internal Revenue Service and a divorce because of your ex-spouse’s delinquencies can be a nightmare. The innocent spouse rule is meant to bring relief for innocent spouses so that they don’t needlessly suffer for an indiscretion that was not their fault.
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How Do I Prove That My “Ex” is Living With Someone?
As a New Jersey Divorce Lawyer, I have always found this area of NJ Family Law to be one of the most unfair, specifically to the person paying alimony. Most recently, a new case came down that disturbs me as, in my opinion, has made the law of “cohabitation” in New Jersey even more unjust. This blog shall explore the law as it presently stands, this brand new case and how the pending New Jersey Alimony Reform may make the law more fair in this area of the law.
Under present New Jersey Divorce Law, cohabitation occurs (in a court of law) is when the couple bears the “character of a family unit as a relatively permanent household.” Furthermore, the relationship must show “stability, permanency and mutual interdependence.” One of the lead cases further states that when the couple is in an intimate relationship wherein they undertake duties and roles that are commonly known to be like those in a marriage, cohabitation exists under NJ Divorce Law. Examples given in this case include but are not limited to:
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What Do I Need To Know About New Jersey Prenups?
In 1988, New Jersey joined with other states in passing the Uniform Premarital Agreement Act. The purpose of the act was and still is simply to govern the law of Prenuptial Agreements (i.e. prenups). Since our state adopted the act, the amount of prenups drafted has steadily increased. At Law Offices of Edward R. Weinstein, we are here to help ensure safety of your assets upon a divorce by assisting you in understanding the value of entering into a prenuptial agreement.
What is a premarital agreement? 37:2-32
A prenup is an agreement between potential spouses made in consideration of marriage and effective upon the marriage itself. The subject matter of a prenup usually varies from agreement to agreement; however, it is extremely common that the agreement will include provisions for division of property and child/spousal support in the event of a divorce. The purpose of entering into a prenup before marriage is to ensure that whatever assets you enter the marriage with; you also leave the marriage with.
What formalities are required when drafting a premarital agreement? 37:2-33
When drafting a prenup, the agreement must be documented in writing. If terms and conditions of the prenup are only verbally agreed upon, they are considered invalid. In addition to the prenup agreement itself, a statement of each spouse’s assets must be attached prior to the marriage to ensure that those assets remain with the respective spouse. Another required formality of a is that both spouses must sign the agreement and the agreement must have attached to it a list of both parties assets and liabilities. prior to the marriage. If the agreement is not signed in writing by each spouse, it is considered invalid and unenforceable. Both parties are highly advised to have New Jersey Family Lawyers and the Agreement should be finalized as far before the actual wedding date as possible.
What are the contents that go into a premarital agreement? 37:2-34
Pursuant to section 34 of the Uniform Premarital Agreement Act, spouses about to enter into a prenup may contract with respect to the following areas:
1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;
4. The modification or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of public policy.
Will entering into a premarital agreement affect the right of child support? 37:2-35
If you and your spouse decide to enter into a prenup, the agreement will not adversely affect the right of child support should you file for a divorce.
When does the premarital agreement become effective? 37:2-36
A premarital agreement becomes effective as soon as you and your spouse are legally married.
Can my spouse and I make changes to our premarital agreement once we are married? 37:2-37
Once you and your spouse are lawfully married, it is possible to amend your prenup. If you choose to make any changes, all changes must be recorded in writing. Additionally, each party must sign the amended agreement, acknowledging the new additions to the asset list or initial provisions.
When will a premarital agreement be unenforceable? 37:2-38
Pursuant to section 38 of the Uniform Premarital Agreement Act, a prenup agreement will be unenforceable if the party seeking to set aside the prenup proves one of the following:
1. The party executed the agreement unwillingly;
2. The agreement was unjust at the time the enforcement was sought; or
3. That party, before execution of the agreement:
a. Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
d. Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel
Additionally, if the marriage is found to be fraudulent or void for some other reason, the prenup agreement is only enforceable to the extent required to avoid an unjust outcome.
May The Marital Home Be Sold During My New Jersey Divorce?
Over the past twenty years of being a practicing divorce lawyer, I have seen many changes in the law. An excellent example is the issue of whether an asset of the marriage (such as the marital home) may be court ordered to be sold while the divorce is has still not been finalized. When I first opened my law firm in 1996, it was extremely rare for a New Jersey Family Court to allow this to happen. However, over the past two decades, I have observed more and more cases wherein the asset is allowed to be sold, pentente lite (Latin for, “pending the litigation”) by way of a court order. I believe this is because more and more intact middle class families are struggling financially more than ever. Then, when a divorce hits the family, money can really get tight. Following please find an excellent illustration of how the law in New Jersey has changed over the years by Elizabeth Rozin-Golinder, Esq., an associate attorney and rising star at Law Offices of Edward R. Weinstein.
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How Much Extra In Child Support Do I Pay So My “Ex” May Enjoy My Child’s Extra-Curricular Activities?
Under New Jersey child support laws the parent of primary residence should not gain extra money via child support due to “incidental” beyond what is necessary for the child to enjoy a lifestyle that they would expect to have due to the high amount of income that the family unit receives. This lawyer now analyzes a paramount case in New Jersey Child Support law for wealthy parents and their children.
In Loro v. Colliano, the mother filed for divorced from her husband after a four-year marriage. The parties had one child born of the marriage, a daughter, born on March 6, 1984. A judgment of divorce was entered on June 13, 1991 after very combative litigation. At the time of the divorce, the father was earning approximately $630,000 per year. The mother was awarded sole custody of the parties’ daughter and the father was ordered to pay the wife $1,500 per month for two years in rehabilitative alimony to make the wife whole again. The father was also ordered to pay $375,000 to the wife in equitable distribution. Lastly, the father was ordered to pay $500 per week in child support.