Tuesday, June 13, 2017

Why Basic Auto Insurance Policies are not worth the money if you are ever in an accident.

I have been telling clients of mine, usually after they have been sued in an auto accident, not to waste time buying a “basic policy” instead of at least a standard policy and hopefully a standard policy with more than minimum coverage. People are being deceived, even on television commercials, into believing that by buying a basic policy they are insured. Yes, they receive an insurance card that they can show a police officer or a court as evidence of insurance coverage. But if you are ever in an automobile accident, either as a victim or as a perpetrator, you may find yourself sadly under covered by your insurance. If you are sued for personal injuries by another driver, you will find that your policy will not cover you or provide you with legal representation, unless you got the “optional” liability coverage. And if you have injuries and you sue the other driver, if they lack necessary coverage, you will find that you cannot get under/uninsured motorist’s coverage on your policy. And your so-called optional liability coverage is only for $10,000.00, so if you are sued, the most the insurance company will pay in your defense is $10,000.00 but at least they will represent you. While insurance regulations require insurance companies to inform purchasers of these basic policies that they will not have legal representation without the optional liability coverage, I have not found one client who came to me who at least applied for that minimal coverage. And it is doubtful that the brokers that sell these policies are explaining the risks.

In a standard policy, medical treatment under PIP (Personal Injury Protection) insures that recipients get treatment and that doctors are reimbursed based upon defined schedules for medical care. (New Jersey Administrative Code, NJAC 11:3-4.2.  Deductibles and co-pays are defined under the law although additional coverage may be available. While some people may choose to use their health insurance instead of their auto coverage if they are in an accident, the one benefit of PIP coverage is that fee schedules are mandatory. That means a doctor or hospital can only bill you for what PIP’s schedule will pay for. The health care provider can charge you in excess of what your regular health insurance provider may pay. The benefit in using your health insurance though is that you will often have greater access to treatment without being challenged by the PIP provider as to unnecessary treatment.

The basic policy offers PIP coverage for the insureds only up to $10,000; and members of their families up to $15,000 and up to $5,000.00 for property damage coverage. Unless you have the optional liability coverage (up to $10,000) you are on your own if you get sued. As the basic policy should state in its provisions: the policy “may subject the named insured to a claim or judgment for noneconomic loss which is not covered by the basic or special automobile policy, and which may place his assets at risk, and in the event the named insured is sued, the insurer shall not provide legal counsel.”

If you have a basic policy, your coverage booklet should contain the following information: https://www.csg-inc.net/pdf/CSAA/CSAA-NJ-BP-1-New-Jersey-Basic.pdf
Even worse is the special policy. This is a policy to provide coverage to low-income people who are on Medicare and whose licenses are in good status. This is the so-called $1 a day policy. While this policy may keep you from going to court or even jail if you get stopped by the police or are in an accident, it is virtually useless if you are sued, or if you yourself are the victim of an accident and need treatment before what Medicaid is going to afford under the terms of the special policy. And again, if you get sued, you are on your own.

The State is at fault for encouraging drivers to have these types of policies. Insurance really was meant to provide coverage for the victims of automobile accidents and these policies fail to do that by not providing liability coverage. Yet they are being touted by insurers, even on television, as a way of proving that you have insurance coverage. The legislature should go back to the drawing boards and either remove these policies or require that they provide at least some form of liability coverage. As an attorney who has represented a number of drivers involved in accidents who thought they were “covered” I can say that they find that they either have to pay for their lawyers themselves or try and file for bankruptcy because they are usually going to be sued for money they do not have. Or they risk having a judgment against them that can be on their record for years to come.

Wednesday, May 31, 2017

Last Year's Change in the Laws Regarding Emancipation in New Jersey

Emancipation of a Minor in New Jersey

New Jersey has recently changed its conditions for emancipation of a minor to make it less of a matter of discretion for the deciding judge when deciding whether or not to terminate child support obligations when a child reaches eighteen years of age. Prior to the law being amended in January 2016, the emancipation of a child would occur under when a child reached age 18 unless certain conditions applied such as a child becoming financially independent. Howevcr, under earlier law, there was no automatic emancipation of a child at the age of majority, it was always left up to a judge’s discretion.

Emancipation could be extended beyond age 18 for a number of reason. First and foremost, is if there is a matrimonial settlement agreement or court order that extends the time of a child to receive child support. If a child is suffering under a disability that prevents that child from being self-sufficient, that could potentially defer the ending of child support obligations indefinitely. Likewise, if a child attends a college or vocational school, the child would still be entitled to child support. However, if a child is enrolled in a military academy like West Point or Annapolis, the child is deemed to have entered active military service and thus is considered emancipated. Bishop v Bishop, 287 N.J. 593 (1995). Depending upon family circumstances, this can even extend to graduate school.

Termination of child support could occur by changed circumstances. These can include a child’s death, marriage, termination of the parent’s parental rights, or entry into the military. It may also occur if a child graduates high school but does not continue school beyond high school. The child must no longer be depending upon the parents for support. Filipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997).

Under the new statute N.J.S.A. 2A:17-56.67, a number of changes occurred as of January 2016. Prior to the change many property or marital settlement agreements provided that child support was capped at age 23 whereas now, emancipation operates by matter of law at age 23. Similarly, termination of child support is to occur automatically when the child marries, enters military service or dies or reaches age 19 unless exceptions occurred which included the above-mentioned conditions like school, disability, or out-of-home placement through the Division of Child Protection and Permanency. 

Probably the most significant change is that the emancipation should be automatic unless there is a reason not to emancipate the child. The new statute provides that child support terminates by operation of law rather than by filing of a motion to emancipate or end child support by reason of changed circumstances. When Probation is involved, they are supposed to provide notices to parents of the proposed termination of child support when the child has reached the age of 23 which is the new cap when child support is to terminate. This notice is to be provided at least 180 days prior to the proposed termination date and then again at least 90 days prior to that date. In fact, Probation is supposed to cooperate with both parents by other means as well including text messages, emails or telephone calls. And rather than the non-custodial parent having to file to have the child emancipated, the custodial parent has the obligation to show why the child should not be emancipated.

So, all in all, the recent changes to the emancipation statute makes it more payor friendly, and helps restrict the discretion of the court. Before, when emancipation was sought for a child that turned age eighteen, a “fact-sensitive” inquiry was required to determine the right to continued parental support. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982), a New Jersey Supreme Court decision. But now, the statute sets conditions when emancipation will automatically occur by reason of law, such as attaining age of 23, entering the military or other conditions set forth in this statute.

It also appears from the statute that the impact on child support orders would apply to orders that were issued before the enactment of the statute, so anyone who has a child support order, who knows for instance, that the child has attained the age of 23, should make sure that their child support obligation is terminated. In those instances where there is a reason to extend support beyond that age, for instance for a disability, the court will have to find a different condition for providing such financial support other than under the provision of child support.

 Anthony Van Zwaren, Esq.

Friday, April 21, 2017

A few facts about signing a prenuptial agreement

  • What to know about prenuptials
Prenuptials are agreements between premarital couples or partners planning a civil union. They set out contemplated guidelines for protecting assets, property and earnings in the event of a later split up. In New Jersey, the guidelines fall under N.J.S.A. 37:2-32 through 37:2-41. It applies the provisions of the Uniform Prenuptial Agreement Act (“UPAA”) under New Jersey law. The UPAA is one of a number of agreements that attempt to codify and coordinate the application of laws across state boundaries to prevent potential conflicts in applying said laws. The Uniform Law Commission drafts proposed rules in areas such as arbitration, child custody, probate, and other areas of foreign and domestic law. The UPAA was promulgated in 1983 (civil unions were incorporated into the act in New Jersey in 2006). There is currently a revision pending called the Uniform Premarital and Marital Agreements Act that would also include rights and duties for marital agreements as well as premarital agreements. This was put forward in 2012, but as yet, it does apply yet in New Jersey.
This section spells out what is necessary to create a properly executed prenup agreement, what rights the parties to the agreement have and how they may be enforced, as well as what conditions may later be considered to have created an unenforceable agreement.
The first condition to a premarital or pre-civil union agreement is that it is enforceable like any other contract. It will govern he rights and obligations of the parties to property, the right to sell, use or transfer property as well as its disposition after separation or dissolution of the marriage. It may also spell terms for the modification or elimination of spousal support just as a marital settlement agreement may do.  It can also govern the disposition of property or proceeds from things like life insurance policies in the event of the death of one or both of the spouses or partners.
A prenuptial agreement may not impact any right to a child obtaining child support as these agreements are only between the spouses or partners.
The prenuptial agreement takes effect when there is a marriage or a formal civil union. It can be revoked or amended only by written agreement of both parties.
A statement of the assets of the party should be incorporated and annexed as part of the agreement and it needs to be signed by both parties. N.J.S.A. 37:2-33.
Challenging a prenuptial agreement
In order to set aside an agreement, the party seeking to set aside the agreement has the burden of proof that either:
·        The party executed the agreement involuntarily; or the agreement was unconscionable when the agreement was executed by reasons of non-full disclosure of assets or liabilities by the other party; that the party seeking to set it aside did not consult with independent legal counsel and did not voluntarily and expressly waive in writing, their right to consult with independent legal counsel; and they did not expressly waive any rights to a full disclosure of the earnings, property and obligations of the other party. N.J.S.A. 37:2-38.

One should always make sure that they have an attorney of their own choosing look over the terms of a premarital agreement before signing. The agreement should also spell out that, if the other party does not choose to have counsel, that they are making a knowing waiver of their rights to counsel. Never agree to have the same lawyer represent you and your future spouse or partner. This already creates the potential argument that the agreement was unconscionable and meant to favor one party (usually the one with the most assets or income) over the other. N.J.S.A. 37:2-38(c)
The issue of the unconscionability of a premarital or pre-civil union agreement is one to be determined by the court as a matter of law, and only if the conditions set forth in sub-section (c) are met. N.J.S.A. 37:2-38(d). Proof is by clear and convincing evidence, so the party seeking to abrogate the agreement has a burden greater than simply by “a preponderance of the evidence.”

Two significant amendments in the Act occurred recently. The term unconscionability had previously been defined under N.J.S.A. 37:2-32(c) as "[U]nconscionable premarital or pre-civil union agreement' means an agreement, either due to a lack of property or unemployability: (1) Which would render a spouse or partner in a civil union couple without a means of reasonable support; (2) Which would make a spouse or partner in a civil union couple a public charge; or (3) Which would provide a standard of living far below that which was enjoyed before the marriage or civil union."  This sub-section however was deleted in 2013. Also as to burden of proof in enforcement of a premarital agreement N.J.S.A. 37:2-38(b) was deleted in 2013. This sub-section had previously permitted a party to argue that unconscionability at the time of enforcement of the agreement. With the deletion of this section, a party could henceforward only argue that the agreement was unconscionable when executed. These changes were set forward in 2013. https://www.judiciary.state.nj.us/legis/P.L.%202013,%20c.72%20-%20Revsies%20law%20regarding%20enforceability%20of%20premarital%20and%20pre-civil%20union%20agreements.pdf

Anthony J Van Zwaren

Wednesday, July 27, 2016

A recent decision of the NJ Supreme Court regarding co-habitation and its effects on alimony awards

As discussed in one of my earlier blogs, the laws have recently been changed regarding alimony under N.J.S.A. 2A:34-23. With regard to cohabitation, the statute under sub-section (n) delineated different factors to be considered in deciding whether to discontinue alimony due to cohabitation. One important change in the statute was that the fact that a couple may not actually be limiting together was not sufficient to decide whether cohabitation was occurring. Instead the following factors needed to be reviewed:
"n. Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household. When assessing whether cohabitation is occurring, the court shall consider the following: (1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities; (2) Sharing or joint responsibility for living expenses; (3) Recognition of the relationship in the couple’s social and family circle; (4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship; (5) Sharing household chores; (6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and (7) All other relevant evidence. In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis."

Meanwhile, the Supreme Court has issued a recent decision regarding prior case law that has often been cited in property settlement agreements, Konzelman v. Konzelman, 158 N.J. 185 (1999) which enforced cohabitation provisions without inquiry into the financial needs of the spouse and Gayet v. Gayet, 92 N.J. 149 (1983) which said that the court need to determine whether cohabitation has affected the spouse's existing alimony award.  At the time of the Gayet decision, and following the reasoning of Lepis v. Lepis, 83 N.J. 139 (1980), the Supreme Court held that it was necessary to balance the economic circumstances of the spouse before deciding what effect cohabitation would have on alimony. Gayet at 154. Cohabitation was considered a changed circumstances to be viewed under the terms that Lepis applied in deciding whether to modify alimony or child support awards.

However, the court in Konzelman held that a provision in a property settlement agreement that treats cohabitation as equivalent to remarriage, which statutorily mandates termination of permanent alimony. So under Konzelman, there was no need to inquire into changed economic circumstances of the spouse receiving the alimony. Konzelman at 197. The Supreme Court held that it was important to uphold contractual provisions as long as the courts have done an inquiry into the equitable nature of the provision and the voluntariness of the acquiescence of spouse's agreement.

Following these decisions, the Supreme Court then came out with its decision in Quinn v. Quinn 2016 LEXIS 371 decided on May 3, 2016. This decision continued to uphold that in the absence of a contractual provision a person may modify alimony based upon cohabitation only upon showing a change of circumstances as set forth under Lepis. This case was distinguished from Konzelman due to the fact that in this case, the ex-spouses' termination ended. In its decision, the Supreme Court held that the ending of the cohabitation was not sufficient cause to violate the terms of the agreement, once it was established that a relationship of cohabitation did exist. Of course, the court may inquire as to whether the original agreement was equitable and not based upon any fraud, duress or unconscionability in the original negotiations of the PSA. Quinn, at *36.

It is important that any Property Settlement Agreement reflecting suspension of alimony based upon cohabitation reflect current law. It is also important to have the drafter clarify whether or not alimony will terminate under all circumstances due to cohabitation. Justice Daniel O'Hern dissented in the Quinn decision deriding the majority's decision to form an absolute basis to terminate alimony based upon cohabitation with no inquiry into economic needs and basing its decision on grounds of contract law, while ignoring realities regarding what might be the disparity of the parties when initially entering into a Property Settlement Agreement. As Justice O'Hern mentions, the current revisions in the alimony statutes state that the courts "may" terminate or modify support based upon cohabitation without using the imperative "shall."  He harks back to the economic needs test of Gayet rather than the axiomatic contract principle applied in Konzelman.  He also raises a few other points, such as the fact that the cohabitation bans do not seem to apply to same sex relationships and that there is not a similar requirement on the provider of alimony to avoid cohabitation. In other words, he sees the cohabitation provision as a punishment on the former spouse.

It will be interesting to see whether the new alimony revisions will resolve this issue since it does go back to applying many of the factors cited in Gayet although it does not seem to necessarily apply to negotiated Property Settlement Agreements. Depending upon which side you are on, it is important to discuss this issue with your attorney before signing any PSA if you think this might be an issue.
New Jersey Supreme Court case on the rights of parents to free legal counsel when facing the termination of parental rights



The New Jersey Supreme Court just issued a decision only yesterday affirming that a parent who previously placed her child in foster care had a right to free legal counsel when the foster care agency sought to terminate her parental rights so that her child could be placed up for adoption. See In the Matter of Adoption of a Child by J.F.V. and D.G.V.; (A-39-15). The decision in favor of the mother was unanimous. This right had already been established for parents in need of representation when facing termination of parental rights in cases involving the Division of Child Protection and Permanency (“DCPP”). N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301 (2007). The right to representation for indigent parents when facing state inspired termination of parental rights was established under Federal law in Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981).

This case involved placement by a private agency rather than a state agency. The issue of the rights for parents falls under N.J.S.A. 9:3-47 or -48. rather than under N.J.S.A. 30:4C et seq. and was a matter of first impression in New Jersey. The issue at hand in this case was not whether the indigent parent had a right to representation but whether she waived that right according to the arguments presented on behalf of the proposed adoptive parents. There were court notices during the trial phase that advised that the indigent mother had a right to appointed counsel. However, at one case management conference, the trial court briefly informed the mother of a right to representation, but did not inform her that a lawyer would be appointed for her if she could not afford one. She did take advantage of her opportunity to refuse to consent to the adoption, but was not adequately informed of her rights at trial to have an attorney appointed.

The Supremes noted that, while this matter was brought as a private action by the prospective adoptive parents, that it is important to consider that the force and authority of the State to sever the parental bonds was still in effect. Thus, the termination under this adoption proceeding had the same effect and force of law as a termination commenced by a state agency. See  In re Adoption of a Child by J.D.S., 176 N.J. 154 (2003).

In looking to the history of the advancement of parental rights in termination proceedings, the New Jersey Supreme Court cited the statement of Justice Stevens of the US Supreme Court when he stressed in a dissenting opinion on the case of Lassiter, that the deprivation of parental rights can be even “more grievous” than a sentence of incarceration and that counsel should be appointed to a parent facing the termination of their rights. Lassiter, at 59-60. Or as the New Jersey Supreme Court noted, it would be hard to conceive that where the State was required to provide appointed counsel to indigent defendants faced with the loss of their driving privileges, and not be required to provide appointed counsel in a matter where a parent faced the extinction of their parental rights citing Crist v. Div. of Youth & Fam. Servs., 128 N.J.Super. 402, 415-16 (Law Div. 1974) aff’d in part, rev’d in part, 128 N.J. Super.  135 N.J. Super. 573 (App. Div. 1975).

The Court referred to the type of difficulties that the indigent mother faced when trying to handle her own defense without representation. These cases involve things like expert medical and psychological evidence who can be subjected to cross-examination. The mother did not present any evidence on her own behalf and likely did not know how to contest what evidence the other side presented that might have been objectionable. She was not able to address legal arguments and did not subject witnesses to cross examination.  And while the State may have a compelling interest in promoting adoptions in appropriate cases, the Supreme Court also noted that the public as well as the parent have a stake in insuring “an accurate and just decision.” Lassiter, supra, 452 .U.S. at 27. A contest between attorneys versed in the law and in presenting relevant and competent evidence to the court also permits the trier of fact (the judge) to render a just and competent decision. Lastly, the New Jersey Supreme Court noted that while this was a case of first impression in New Jersey, other states had already enacted such provisions by statute or by courts applying due process standards. And the Supreme Court rejected the petitioners’ (adoptive parents’) argument that because the state per se did not initiate this action but that private interests did, that due process interests were not invoked.

The Supreme Court instructed that the right to counsel for an indigent parent should commence when the adoption agency has received notice that the parent objects to the adoption, as the case is then likely to go to trial. The Supreme Court also instructed that the Director of the Administrator of the Courts provide form letters that are to be sent to the parents when asked whether they wish to consent to an adoption or not, and clearly noticing them of their right to appointed counsel. The only thing that the Supreme Court could not address is the funding for this representation. The Court noted that representation provided through the Office of Parental Representation (“OPR”) of the Public Defenders’ Office in representing parents when confronting Division initiated termination proceedings (and in abuse and neglect hearings as well), but realized there was no funding source provided as yet to permit OPR to handle these cases as well. They hoped that law firms would provide pro bono representation, but realized that the Legislature would need to provide the funding to insure that representation is available in these type of cases.

This case is an important extension of the rights of parents to due process because it goes beyond the times when these proceedings to terminate parental rights occur in proceedings involving the State through the DCPP and extends it to indigent parents who through misfortune may have to place their child or children in another person or agency’s care. The parent in this case, L.A., initially placed her child with an agency with the initial idea being adoption but later changed her mind after receiving pre-adoption counseling. While the child was still in placement, the mother actually agreed to a service plan whose goal was the “eventual parenting of [the] child.” She was also to seek work and permanent housing. However, after she failed to sign a revised service plan the placement agency announced its intention to move forward with adoption.