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.,%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. 

Friday, June 3, 2016

Updates on Expungement Law Changes

As people may know, expungement is a tool that permits people to erase criminal histories in state and local criminal history records. It is available mostly to those who have been either charged but never convicted, or convicted of relatively low level offenses like shoplifting, simple assault rather than aggravated assault, defiant trespass and the like. One warning for people who have immigration issues, the Federal government does have access to records that may have been blocked by state or local authorities, so you should consult with an immigration attorney to see whether an expunged offense needs to be reported or not.
Under prior law, ten years must have passed from the date of completion for your conviction (not the date of conviction) while only five years needed pass for convictions in municipal court. This means if you were convicted in 2004, finished jail in 2006, and completed parole and paid off all fines in 2007, then you would wait ten years from 2007, not 2004, if this were an indictable offense.
 Now, you need wait five years for indictable offenses (those that occurred in Superior Court) or three years for municipal court convictions. If it was an ordinance violation, then only two years wait is necessary. Another important change is that the municipal courts are to order records expunged without the required filing of an expungement complaint for $75.00 once a person has completed the terms of a conditional discharge or dismissal or has completed the terms of drug court.
If you were arrested but never convicted, and the charge dismissed, then you can apply immediately. Some grave crimes like murder, kidnapping, child exploitation, child pornography, terrorism and some other listed crimes are not subject to expungement, but other indictable offenses can be expunged. This does not prevent the petition from being denied. Motor vehicle charges such as DUI convictions are also not subject to expungement. Similarly, if you were charged for domestic violence, any charges in criminal court or in municipal court may be expunged, however, if a final restraining order was granted as a civil penalty, that is NOT subject to expungement.

In addition to shortening the period of time one has to wait for an expungement, the new law permits a person to file an expungement petition for an indictable offense and any disorderly persons that may have been included in the charges, at the same time. These offenses must have arisen from the same event however.

Where a charge is brought but there is no conviction, municipal courts will be required to notify defendants that the charges can be expunged without opposition AND without filing a fee for the petition for expungement. Even those people who have had arrest records from before the law takes effect will be permitted to file petitions for expungement without the usual $75.00 fee.

Those people sentenced to drug court may have their entire record expunged after completion of a special probation, provided they have not been convicted of some offense that is non-expungeable as defined under NJSA 2C:52-2(b).
Again, expungements are a one time "get out of jail free" card and cannot be used again. If you were convicted of a crime in a different state or under federal law, this would count against your ability to expunge a New Jersey offense. Also, the Federal government can access these expungements, so for instance, if you expunged a crime for shoplifting, you may still need to explain to a hearing officer the circumstances of the crime if you are filing for any change of status with immigration. Similarly, as mentioned, if you apply for a position in law enforcement or corrections you will still need to explain the circumstances behind the expungement as was mentioned above. However, while it may be considered, it should still be considered as evidence of rehabilitation if the request was granted.

Questions regarding those who are considering careers in law enforcement or corrections
For those who are thinking of entering law enforcement or corrections, you are still legally required to inform the potential employer of an arrest or conviction even when it has been expunged.  See NJSA 2C:52-27. One legal case that concerned an applicant for a police position who had been arrested but never convicted led the Appellate Division to remand a denial of employment based upon an arrest in the applicant's background. In re J.B. 386, N.J. Super. 512 (A.D. 2006) held that, while a police applicant was required to report an arrest that did not lead to a conviction when seeking employment, and such an arrest could be considered a "disability" in hiring, as described in the statute under N.J.S.A. 2C:52-27, the Appellate Division found that the Merit System Board failed to treat the expungement as evidence of the applicant's "rehabilitation" as required under N.J.S.A. 11A;4-1. This meant that, while a person who has been convicted of a crime must make a showing that he or she has rehabilitated him or herself when seeking employment, the expungement for an arrest where there was no conviction should be treated as the required evidence of rehabilitation for purposes of employment. In this case, the Appellate Division did mention that the Merit System Board could weigh other factors, but that they could not consider "rehabilitation" in terms of the expunged arrest, since the application for expungement requires the applicant to show that they have rehabilitated themselves.

Saturday, March 12, 2016

One fact to be aware of when taking a plea on a speeding offense in New Jersey Municipal Courts

When taking a plea on a motor vehicle charge in Municipal Court, people are usually unaware that they face: 1) fines imposed by the municipal court including surcharges; 2) additional surcharges that may be imposed by Motor Vehicles separate and apart from the Municipal Court, which for cases like DUIs can be very steep; the points that are issued by Motor Vehicles as well as points that are issued by insurance companies.

When pleaing to a lesser motor vehicle charge, for instance downgrading a speeding violation, people are aware that they may have an option for a 0 point offense. The most common is the unsafe driving offense, but that is an expensive proposition where you will wind up paying about $439.00 with surcharges. There are other 0 point options available in some counties and in some municipalities but they are not always offered. Local counsel will know best whether there are choices for a 0 point plea other than unsafe driving. And if you do plea to an unsafe driving make sure you have not had two prior unsafe driving convictions in the past five years, otherwise you will face four points, not 0.

Depending upon your driving history a 2 point conviction but be an option. While I have not heard many attorneys discuss this, under New Jersey law, if you have a speeding charge under 15 mph, which is a 2 point offense, the insurance company is not to impose its own surcharges unless you have had a prior conviction within the past three years. If your record is clean, you may wind up paying less than for a 0 point unsafe driving.

The tricky part is the regulation seems to only apply to a 2 point speeding charge. It does not indicate that it applies to other 2 point convictions such as careless driving. Therefore, I would limit using this only in the face of accepting a 2 point speeding charge. Below is the actual citation.

§ 17:33B-14.1. Speeding violations, certain; surcharge unaffected

  • a.  In calculating a surcharge or other differential in rates based on motor vehicle penalty points promulgated by the Director of the Division of Motor Vehicles pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5), including any surcharge or differential based on the schedule of automobile insurance eligibility points promulgated by the Commissioner of Insurance pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14), an insurer shall not consider any points assessed for a violation of any lawful speed limitation where the violator exceeded the speed limitation by less than 15 miles per hour, except that, the insurer may consider any such violations, in excess of one violation, of which the insured has been convicted in the three-year period immediately preceding the issuance or renewal of the policy. This section shall only apply to violations that occur on or after the effective date of this act, but shall in no case apply to a violation of subsection a. of R.S.39:4-98.
  • b.  As used in this section, “insurer” means and includes an insurer writing private passenger automobile insurance in the voluntary market and any insurance plan established to provide private passenger automobile insurance pursuant to section 1 of P.L.1970, c.215 (C.17:29D-1)

N.J. Stat. § 17:33B-14.1