New Jersey Divorce Lawyers Blog

On February 23, 2024, the Supreme Court of New Jersey issued an Order that will have an immediate and substantial effect on cases involving certain DWI offenses. The Order was made in response to the New Jersey Legislature’s newly enacted law regarding drunk driving offenses. In a twelve-page Order, Chief Justice Rabner withdrew the 1990 Court Rule, “Guideline 4”, which expressly prohibited plea agreements in DWI cases. As a result of this Court Order, and the new statutory language within NJSA 39:4-50, individuals subject to certain DWI offenses can now negotiate plea agreements, thereby potentially lessening their charges.

The New Law

In 2022, the New Jersey Legislature introduced Bill S-3011, which pertains to the use of ignition interlock devices (“IID”) in drunk driving cases. The bill was approved and ultimately signed on December 21, 2023.  Among other things, this new law authorized plea agreements in offenses issued for a DWI or a “refusal to submit to a breathalyzer”. Specifically, the Bill added language to New Jersey’s DWI statute, NJSA 39:4-50, which stated: “Notwithstanding any judicial directive to the contrary, upon recommendation by the prosecutor, a plea agreement under this section is authorized under the appropriate factual basis…” (emphasis added).

It is always difficult to lose a loved one or close friend. Even though you are still grieving, the process of taking care of their final affairs begins immediately upon death. In most cases where there is a Will, the Executor will select the funeral home and decide on the funeral arrangements. However, this is only the beginning of the steps that need to be taken. 

You need to probate the Will.

This is the formal process of submitting the Will to the County Surrogate’s Court and “qualifying” as the Executor. The literal definition of what it means to “probate” a will, is to “validate” the will.  The Surrogate will be looking to make sure it bears the testator’s signature and it has been duly witnessed by at least two (2) witnesses.  Once the will is admitted to probate, you will receive documentation that  formally appoints you as the Executor (or, Executrix, if you are a female).  This document is known as  Letters Testamentary.   The Surrogate will also issue an Executor’s Short Certificate which will allow you to act as the estate representative.  We typically obtain multiple copies of the short certificates as you will need to supply a copy to each institution where the decedent had an account.

A very common inquiry we receive as family law attorneys in New Jersey is whether alimony and child support orders are subject to modification.

For example, what happens if you suffered a change of circumstances and you can no longer afford to pay the spousal (alimony) support that you voluntarily negotiated and agreed to pay under your Judgment of Divorce?

What can you do if your weekly child support payment leaves you without sufficient funds to live on your own? Can you just reduce the amount you pay? Do you have to file an application with the court? Is there a special burden you must meet, in order to reduce, modify or even terminate a support obligation?

Grandparents Rights

By: Francine J. Galante, Esq. 

You may be asking yourself,  what happens if I can no longer see my grandchild(ren)?  It could occur if a parent, your own son or daughter in some instances,  limits or prohibits your time with your grandchild because of an argument you had with your child or, sometimes, this occurs  after a divorce, separation, or the death of your grandchildren’s  parent.

If you cannot reach an amicable agreement with your grandchild’s parent, you should consider filing an application in the county Family Court (the Superior court of New Jersey) where the child lives called a “petition” seeking visitation and seek to establish a regular visitation schedule so that you can see your grandchild(ren) on some regular basis. Your application will be “on notice” to all parties, including the parent(s) of your grandchild(ren). It is better if you can show that you tried to resolve the matter prior to filing your application with the court, to show good faith on your part.

Who has the burden of proof in a case like this?

You will have the burden to prove that your grandchild is being harmed by your denial of this visitation. Judges must consider any relevant evidence to make a determination that the child will be harmed without the court-ordered time you are seeking, including but not limited to an established grandparent-grandchild relationship, life-altering changes in the child’s home during or after the parents’ divorce or separation, death of a parent, etc. It may be necessary to provide expert testimony that the child has or will suffer psychological harm if they are cut off from seeing you.

The “Best Interest of the Child” Standard:

The court will require you to establish that spending time with you is in your grandchild’s best interest, substantiated by evidence, including but not limited to your relationship with your grandchild(ren), your relationship with the child’s parents, the length of time since the child has had contact with you (and any circumstances surrounding your prior contact including if your grandchild lived with you, if you were a caregiver, etc.), the parents’ visitation arrangement (if they are divorced or separated if they were not married), the reasons surrounding your current denial of contact with your grandchild(ren), the potential impact on the child’s relationship with the parent(s) if the proposed time is granted, and any history of sexual or physical abuse by you or the child’s parent(s), if applicable.

If you claim that the parent(s) are unfit to care for your grandchild(ren), then you will have to prove that the natural parents are unable to provide for the safety and welfare of the child and demonstrate that living with you would be in the child’s best interests, considering the child’s health, safety, and general welfare. Seeking custody will require the use of experts and result in a plenary hearing ( a mini trial) in order for the Judge to render a decision as to a proposed change in custody.

Unfortunately, the process for obtaining a change in custody or even requesting visitation rights with your grandchild(ren) is not a simple process. Sadly, extensive case law in New Jersey has created hurdles for grandparents to overcome before they can even seek a visitation order from a New Jersey Court. This is because parents’ rights in raising their children are constitutionally protected and superior to any other person, – even the child’s grandparents –  absent a showing that the “best interests of the child” are at risk. New Jersey’s current  case law establishes a presumption that “fit” parents act in the best interests of their children. Therefore, a grandparent seeking to compel a visitation schedule with a child in the custody of a fit parent must overcome this presumption; and many parents use this presumption to dismiss grandparent visitation petitions even before there is a hearing where the grandparents are afforded the opportunity to present their position.

Grandparents seeking visitation of their grandchild(ren) are faced with a difficult  challenge. They have the right to engage in discovery and present their evidence to the court, but the case must be strong enough to overcome the presumption that a fit parent will act in the best interest of his or her child. There is much case law on this matter and it is clear that a grandparent  cannot simply establish that visitation is in the child’s best interest simply by saying so; rather, the grandparent has the burden to affirmatively prove to the Court that the child will suffer harm unless the visitation is granted.

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My Spouse or Loved one has recently died. Will I have to pay Taxes?     

There are generally three kinds of taxes that may come into play upon death: 1) Income Taxes; 2) Inheritance Taxes; and 3) Estate Taxes. There are a variety of factors which determine whether and which types of returns and taxes are paid.

In our last post, we addressed Income Taxes. This post will address Inheritance and Estate Taxes.