NJ LAWS EMAIL NEWLETTER E433
Kenneth Vercammen, Attorney at Law
January 7, 2014
1. New Year's Resolution - Put your Estate Planning in Order.
You need a Power of Attorney and Living Will / Advance Directive. Modern medicine and machinery can keep a person alive for long periods of time.
Unfortunately, a person is often kept alive in great pain or under circumstances that render him or her unconscious to everything around them, while causing pain and anguish to the family.
Our state has passed a "Living Will" law, often called a "Death with Dignity" law, which allows a person to direct that heroic measures not be taken to prolong life in these unhappy situations.
This "Living Will" is not a substitute for a regular Will, which affects property rights. The "Living Will" is an independent document to be signed in addition to your regular Will.
Please let us know if you want a Living Will / Advance Directive prepared.
I would like to thank my friends for another good year, despite the bad economy. This year was our single best year for referrals. So many of you were kind enough to tell others about our services and recommend us. Since 1985, I have helped individuals and businesses with legal matters. With changing laws, it is important that your estate planning documents are updated to reflect your most valuable investments. As you know, all businesses must grow, and one of the safest ways to grow is to get referrals from satisfied clients. Thank you for referring friends and family. May the New Year bring happiness and good health to you and those you love.
2. You are invited to 2014 update Wills and Estate Planning; Free Seminars: Tuesday, Jan 14, 2014 at 12:15-1:00 PM & also Wed Jan 15, 2014 at 5:15pm-6pm
Invited: Clients, Friends, Accountants, Business Owners, HR staff, Financial Planners, Insurance Agents, Nursing Home Staff, Hospital and Nursing Home Social Workers, Office on Aging Personnel, Senior Club Presidents, and Medicaid Workers.
Location: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817
COST: Free if you pre-register. Complimentary materials provided at 12:00PM sharp. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.
SPEAKER: Kenneth Vercammen, Esq.
(Author- Answers to Questions About Probate)
The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.
1. The New Probate Law and preparation of Wills
2. 2014 changes in Federal Estate and Gift Tax exemption
3. NJ Inheritance tax $675,000
4. Power of Attorney
5. Living Will
6. Administering the Estate/ Probate/Surrogate
7. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
To attend or for Information: Mike McDonald 732-572-0500
or email VercammenLaw@Njlaws.com
Can't attend? We can email you materials
Send email to VercammenLaw@Njlaws.com
3. DOMESTIC VIOLENCE DEFENSE
by Kenneth A. Vercammen, Esq.
New Jersey domestic violence laws are very strict. A spouse or girlfriend could call the police and if there are any signs of physical injuries the police must arrest the man. Even without independent witnesses and no physical injuries, police may arrest the man. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report. For example, O.J. Simpson would not have gotten away with abuse in New Jersey. Police are automatically required to arrest an abuser if they see any evidence of abuse or assault.
Even during the evening, your town Municipal Court or Superior Court can issue a Restraining Order, which is a legally enforceable document. The Temporary Restraining Order (TRO) will prohibit the defendant/abuser from any contact with the victim or entering the residence.
Unlike a criminal case where a person is provided with lengthy due process rights, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far-reaching orders. A domestic violence hearing is usually held within only ten (10) days after the filing of an ex parte complaint and temporary restraining order. After a hearing, NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant.
Our Supreme Court has already found that the ten-day provision comports with the requirements of due process, but can be delayed.
In H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003), the Court held: "the ten-day provision does not preclude a continuance where fundamental fairness dictates allowing a defendant additional time. Indeed, to the extent that compliance with the ten-day provision precludes meaningful notice and an opportunity to defend, the provision must yield to due process requirements." [Internal quotations and citations omitted.]
Discovery not mandatory in Domestic Violence family cases
Domestic violence actions are "summary actions," a fact that inherently precludes the right to discovery. See, e.g., H.E.S., supra, 175 N.J. at 323. However, the Appellate Division in Crespo v Crespo 408 NJ Super. 25 (App. Div. 2009) noted that one trial court has determined that, in accordance with Rule 5:5-1(d), a defendant may seek leave to obtain discovery in such a matter upon a showing of good cause. Depos v. Depos,307 N.J. Super. 396, 400 (Ch. Div. 1997). The Appellate Court agreed with the opinion of Judge Dilts in Depos that in compelling circumstances, where a party's ability to adequately present evidence during a domestic violence action may be significantly impaired, a trial judge may, in the exercise of sound discretion, permit limited discovery in order to prevent an injustice. Judges are not required to be oblivious to a party's claim for discovery in compelling circumstances even though the court rules do not expressly authorize relief. See, e.g., Kellam v. Feliciano, 376 N.J. Super. 580, 587 (App. Div. 2005).
The Crespo court held "Here, the record reveals that at no time did defendant seek leave to conduct any discovery proceedings." Therefore, it is important for defense counsel to demand discovery.
In Pepe v Pepe, 258 N.J. Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record keeping under the Domestic Violence act applies to the records kept on file with the Clerk of the Superior Court.
The Family Judge Powers:
At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:
(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.
(2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties. This order shall not in any manner affect title or interest to any real property held by either party or both jointly. If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim's rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.
(3) An order providing for parenting time.
(4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Board for any and all compensation paid by the Victims of Crime Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine. Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney's fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages.
(5) An order requiring the defendant to receive professional domestic violence counseling from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling. The court may order the defendant to pay for the professional counseling.
(6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.
(7) An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.
(8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.
(9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.
(10) An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law.
(11) An order awarding temporary custody of a minor child....
(12) An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued. This order shall be restricted in duration..
(13) An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.
(14) An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.
(15) In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.
(16) An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.
(17) An order requiring the defendant to undergo a psychiatric evaluation.
Despite the substantial financial burden and life restrictions (often referred to as penalties), the burden of proof in a DOMESTIC VIOLENCE hearing is only "by a preponderance of evidence" and not "beyond a reasonable doubt."
Too often lawyers throw up their hands when a client presents a complaint involving domestic violence and related criminal charges. While defense of the complaint may become an involved process requiring commitment and persistence, there are a number of viable defenses and arguments that can achieve a successful result. Rather than simply suggest that a client plead guilty and avoid trial, an attorney should accept the challenge and apply his best legal talents to protect the client's rights.
We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses.
Sometimes a family friend can act as a go between for the parties and convince the complaint to dismiss the charges. A DOMESTIC VIOLENCE complainant can be withdrawn. However, if a criminal complaint is signed by the police, only the prosecutor can make a motion to dismiss. More information to be provided in next week's edition.
Editorial assistance provided by Winne Chen who attends New York University and is majoring in English. Ms. Chen is currently participating in Kenneth Vercammen's Winter Break Internship Program.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
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