Credibility is everything

Posted on February 3, 2016 by Sandy Durst

As part of my practice I handle domestic violence cases.  I have represented both sides: the alleged victim and the alleged abuser.  While I abhor domestic violence, everyone is entitled to their day in court and has a right to zealous representation and and fair process.

In many domestic violence situations there are no witness other than the parties.  There may not be physical evidence such as photographs, audio or visual recordings, medical records, or police reports.  When this is the case, it is a true “he said, she said” situation and the judge will rely heavily on the credibility determininations she or he may make about the litigants.

Credibility can be conveyed in many ways such  demeanor when in the courtroom, the manner in which questions are answered, and body langauge.  I work with my clients as we prepare for trial on these qualities.  Being truthful is the paramount goal.  Being convincing is a close second.  Recently, a client was successful in obtaining a final restraining order and obtaining more parenting time than was previously ordered or offered because the judge found them to be credible.

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Divorce and Taxes

Posted on February 2, 2016 by Sandy Durst
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As we enter what my accountant friends call “Tax Season”, I thought it might be helpful to offer some thoughts on divorce and taxes.  Nothing in this post is tax advice and I would certainly defer to teh recomendations of your tax preparer.
Do I have to file a joint return?

If you are married at the end of the tax year (December 31st) you always have the option of filings joint return or an individual return.  If you are divorced at any time during the year, you can longer file a joint return.  Generally, there are advantages to filing jointly when possible.  

Do I have to declare my alimony payments?

Failing to declare your alimony payments as taxable income is a sure way to draw the scrutiny of the IRS.  Remember, alimony is tax deductible to the payor.  He or she will list it as a deduction and in doing so, needs to include the Social Security Number.  I have to imagine that one of the first things the IRS does in reviewing returns is cross check the social security numbers.

Who can claim the kids as dependent so?

If you are filing joint returns, this is not an issue.If you are filing separate returns, you need to coordinate who claims the child(ren).  In the settlement agreements I prepared for clients this is spelled out so that each party knows what to expect and can tax plan accordingly.

Are legal fees tax deductible?

Generally, legal fees for a divorce are not entirely tax deductible.  However, fees incurred in dealing with alimony may be deductible.  SPEAK WITH A TAX PPROFESSIONAL ON THIS POINT before making any submissions to the IRS>

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The Super Bowl isn’t all fun and games

Posted on January 29, 2016 by Sandy Durst

The Super Bowl has become an unofficial American holiday.  For many, it is a day full of friends, food, and excitement while watching the big game.  However, for many, the Super Bowl is a day of fear.
It is often reported that incidents of domestic violence spike on Super Bowl weekend. It is unclear as to why, but drinking and gambling can lead to bad decisions and tragic consequences.  Your team may lose, money may be lost, but there is no justification for committing domestic violence.  None.

If you are concerned about being the victim, take steps to protect yourself.  Keep the DV Hotline phone number at hand, make sure you have your phone, cash, and anything else you may need in order to make a quick escape.  Don’t be afraid to call the police.

This year, let’s keep the violence on the field.

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Can past acts of domestic violence be considered at my FRO hearing?

Posted on January 25, 2016 by Sandy Durst

New Jersey takes protecting victims of domestic violence very serious.  But in doing so, the law must also protect the due process rights of the alleged abuser.  When seeking a Temporary Restraining Order or a Final Restaining Order, the victim must identify and prove beyond a preponderance of the evidence that a predicate act of domestic violence.  As for the acts that may constitute domestic violence, that is a topic for another post.  In addition to establishing the predicate act which is the basis for the restraining order, the victim may also testify as to past acts of domestic violence regardless of whether a restraining order was obtained.
Why is testimony of past acts allowed?

Testimony of past acts of alleged domestic violence are allowed in order to provide the court with a full picture of the relationship.  It is generally accepted that domestic violence is a cycle and that a victim may not seek protection at the beginning.  Establishing this cycle is important.  Also, many DV cases rely heavily on the testimony of the parties.  Photos, recordings, witnesses, medical reports, and other similar evidence are not always available.  Reviewing the history assists the court in determining the credibility of the parties.
The proper way to use past acts

In order to use past acts, the victim must adequately identify the alleged acts in the Domestic Violence Complaint.  This requirement is broadly interpreted by difference courts, but the recent Appellate Divison decision in M.K. v.  A.K reaffirms the requirement that if the victim intends to use, and the court intends to rely upon, past allegations of domestic violence, than those allegations must be included in the Complaint.  This allows the defendant to have adequate notice of the claims so as to prepare their defense.  

In the M.K. case, the appellate court reversed the trial court’s entry of a FRO because the “plaintiff was allowed to testify extensively about prior history not included in the complaint” and the court’s reliance on this testimony resulted in a “violation of the defendant’s due process rights”.
Conclusion 

The use of allegations of past acts of domestic violence can greatly affect the outcome of a domestic violence cases for both sides.  Whether you are the victim or the defendant, working with an experienced attorney who understands these rules can be a great benefit.

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My child just turned 18. Can I stop paying child support?

Posted on January 15, 2016 by Sandy Durst
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There is a great deal of confusion about child support in New Jersey.  Some of this confusion comes from misinformation that is readily available and some of the confusion comes from the different ways some of our neighboring states deal with child support.  Once question I frequently get from those paying child support is “when can I end my payments?”

  
What is child support/

Child support represents the financial contribution of the non-custodial parent towards the day-to-day expenses of the child.  Although received by the cusotdial parent, child support is a right of the child.  In New Jersey, child support is determined using the NJ Child Support Guidlines.  It is primarily an income driven calculation.  Future posts will discuss child support calculations in greater detail.  

How long do child support payments continue?

Some states have set an age at which child support either terminates or a presumption that it should terminate is established.  Such an arrangement may provide certainty, but may not always be in the best interests of the child.

In NJ, the obligation to pay child support continues until such time as the child is deemed to be emancipated.  This is not entirely an age-based decision.  Factors to be considered may include the age of the child, their educational plans, the relationship with the parent paying support, military status and marital status.
What do I do if I believe my child is emancipated?

If you believe that your child is emancipated, consult with an experienced NJ family law attorney to review the facts and develop a strategy.  DO NOT simply stop paying your child support.  If the other parent does not agree with your position that the child is emancipated, it will be necessary to file a motion with the court seeking a determination that your child is emanciapted, that child support should terminate, and that any support paid after the date of emanciaption be refunded to the payor.

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