Oltman Law & Mediation Blog

Do I need Estate Planning?

Tue, 16 Nov 2021 18:20:22 GMT

What are the life events when you need estate planning?

These are some of the major life events when you should to speak to a trusts and estates attorney, to determine your needs.

· Reaching age 18 – This is a time to do advanced directives for Healthcare (“Living Wills”) – before age 18 your parents or guardian can handle healthcare decisions for you as a minor; once you have reached majority you need to appoint someone to handle these decisions if you are not able to, due to temporary or permanent disability (illness, accident). For a disabled adult who is mentally unable to handle their own affairs, this is a time to for family members to apply for Guardianship (a little before the 18th birthday is best) so they can go on caring for an adult child after 18.

· Marriage – Powers of Attorney (“POAs”), Living Wills, Wills – Some people assume that getting married automatically gives the spouse certain roles, but there is no automatic appointment of a spouse to any of these roles for the other spouse: to handle legal affairs if the other spouse is unavailable, to handle healthcare decisions if the other spouse is incapacitated, or to administer the estate of a deceased spouse.

· Cohabitation in a committed relationship – POAs, Living Wills, Wills – Lots of people don’t get married these days, but may have long-term committed relationships. The need is still there to have someone help with legal affairs, healthcare decisions, or administering an estate, for a life partner who is incapacitated or who dies. Properly drafted POAs, Living Wills, and Wills can provide unmarried partners with many of the same protections available to married partners.

· Purchase of first home or acquiring any other significant asset – POAs, Wills.

· Birth of a child, pregnancy – Wills to provide for guardianship of your child, Living Will in case of childbirth complications.

· Divorce – POAs, Wills, Living Wills – While some inheritance rights of a spouse are cut off when a divorce is filed, it’s important not to inadvertently leave an ex (or soon-to-be-ex) in charge of things when you are divorcing.

· Birth of grandchildren – re-examine Wills.

· Age 65 – 70 – Elder-care planning – will you have sufficient assets to cover your long-term care if you it? Will you need to qualify for public benefits?

· Death of a close family member – Estate administration, POA, Living Wills for a surviving spouse – if the spouse is named as POA, estate executor, or healthcare representative, and that spouse dies, the secondary POA, executor or representative may need to act if the surviving spouse is not up to it for any reason. New documents may be needed, or court actions may need to be filed, to appoint someone appropriate to these roles.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.

The Pearls that Almost Ended a Marriage

Thu, 11 Feb 2021 22:36:31 GMT

Money and Marriages

Money: attitudes towards money, disagreements over lifestyle, spending, and debt; is one of the top three biggest issues leading to divorce.

My mother died at age 88, my dad four years earlier age 84. When Dad died they had been married 64 years, since she was 19 and he was 20. My sister said, while we were going through Mom’s jewelry after her death, “oh, look, those are the pearls that almost ended their marriage.”

Mom and Dad had had some very rocky times in their relationship, financially, and emotionally. It took some years of hard work and scraping to recover themselves. I remember their fights about finances, which often involved Dad spending on things that Mom felt they should live without.

But when the hard times were past, and Dad’s career was on a great path, he bought my mother a beautiful string of pearls for Christmas. It probably cost more than any single jewelry or clothing item Mom had ever had, and she got pale when she opened the package. “Oh my God, how much did that cost? We agreed we weren’t going to spend a lot on each other.”

There was tension, there were raised voices, and tears, before the day was out. Dad promised to return the pearls. Apparently, he didn’t follow through on that, because I have them now. I showed them to my husband; he had been at that Christmas, early in our relationship, and he said, “Hey, he was supposed to have returned those!”

The pearls didn’t really “almost end” my parents’ marriage; by that time they had survived worse threats to their relationship, and had valuable experience in working things out. But the pearls remind me of the importance in a marriage, and in a divorce, of talking about the hard issues.

In divorce mediation, sometimes these issues surface, and people learn to listen, and talk about the issues in a new way. Most often people come to divorce mediation to resolve the issues in their divorce, and move on. Once in awhile they discover they can work out the very issues that caused the trouble in the marriage, and they stay together.

Please reach out if we can help you take care of the tough issues in a relationship.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Estate Planning in the Pandemic

Mon, 19 Oct 2020 00:22:59 GMT

We’re living in scary times, with a global pandemic doubling (or more) the number of deaths we would see in an ordinary year, and some people who catch the coronavirus and recover ending up with life-changing lung or heart conditions. Though it is uncomfortable to face these issues, this is a good time to do your estate planning. For most people, an estate plan will include:

· a Living Will – to appoint someone to make healthcare decisions for you, and give some guidance as to what you want to happen if you are critically ill;

· a Last Will and Testament – to appoint an Executor to handle your estate, and direct who should receive your assets, and appoint a Guardian if you have minor children; and

· a Power of Attorney – to appoint someone to handle your legal affairs for you if you are alive but incapacitated and unable to act for yourself.

Many people are uncomfortable thinking about these issues, and tend to put them off. “There’s no time like the present” is a well-used saying, but maybe more true now, than ever. There is no time like this present, and we hope devoutly this time will pass and not return. But uncomfortable though it may be, creating these documents is a gift you give to your loved ones, to give them some guidance in an emergency.

Wills are very important, but I want to talk more about Living Wills and Powers of Attorney at this time. Anyone over 18 can, and I will say should, have a Living Will and Power of Attorney. If I am unconscious, or otherwise unable to speak or act, I want to make sure someone has the ability to convey my wishes to my healthcare team, and the authority to see those wishes carried out. If I can’t handle my own affairs, pay bills, sign legal documents, I want to know someone is taking care of those issues for me. Without a Living Will and Power of Attorney, my loved ones would have to ask the court to grant them authority, which would be time-consuming, uncertain, and likely expensive.

In the face of the pandemic, I have had college students who worked with me to create Living Wills so their parents could act for them if they become ill. Personally, having now lived through the deaths of all my grandparents, my in-laws and my parents, I know how much difference it makes to give the relatives a road-map. The first of my grandparents to die, died in the 1980’s before Living Wills were a common thing. He was in a coma for over a week, with agonizing decisions needing to be made by the family throughout that time. No one needs that added burden, on top of the grief they will be feeling.

Please reach out if we can help you take care of your planning.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Remote Will Signing

Wed, 20 May 2020 17:27:34 GMT

The past and the future meet in our pandemic present.

A global pandemic is likely to make most of us think about our mortality, and to have us wonder if our families would be properly protected if we were to die. It's also a time when we face shut-downs of most face-to-face business. Luckily the New Jersey legislature has passed a temporary remote notarization law, enabling attorneys and notaries to attest to oaths (notarize documents) remotely, as long as the signing is witnessed by the attorney or notary through a recorded video conference. When you make a will, there must be two witnesses to your signing, who state by way of affidavit that they saw you sign the will, that you stated you were signing it voluntarily, that you are of legal age and capacity to make a will. The notary must attest that you and your witnesses are who you say you are.

Will signing conjures up images of quill pens and ancient documents. These legal documents are one of the last stands of the original, wet-ink signature. In ordinary times I would have you come into the office and sign in front of witnesses, and then I would sign to attest to that you and the witnesses are who you say you are. What the remote notarization statute makes possible is that I can watch you sign remotely through video-conference, and notarize (attest) after the fact.

Your will leaves your directions for how your assets should be distributed on your death, as well as making provision for the guardianship of minor children. When we prepare a will for you, we generally also recommend that you make two other documents. First, we recommend a power of attorney, to give your spouse or some other trusted person the power to handle your legal affairs if you are alive, but not able to handle them yourself. Second, we recommend a living will, or "Advanced Directives for Healthcare," to give someone the power to make medical decisions for you if you can't make them yourself, and to leave your instructions for how you want to be treated in an end of life situation (under what situations would you want to be on artificial life support).

It's never easy to think about what will happen when we die, or if we are incapacitated, or near death. For most of us, those worries are closer to the front of our minds than usual. Preparing these documents can't relieve all the worry of living through a pandemic, but I'd like to help you relieve some of it.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Mediation - the Easier (Hard) Way to Divorce

Wed, 23 Oct 2019 16:10:18 GMT

Let’s face it, there is no really easy way to divorce. It will be an emotional experience even for couples who are determined to remain friends and settle things in an amicable fashion. Sadness, grief, frustration, and anger are common experiences while going through this transition. When a marriage ends, it is the end of an era in your life, a death of many aspects of a relationship, of a shared vision and hope. Facing that end will have both partners going through a grieving process, though each may very well be at different stages in that process at any given time.

When a couple mediates a divorce settlement, they are working with an impartial third party who can facilitate their discussion to settle all the issues that need to be agreed upon – how property is to be divided, who will live where, whether either partner needs financial support from the other, if there are children, who will care for them, how much time each parent will spend with them, and how the children will be supported financially. Any one of these issues can raise fear for the future, fear of change, insecurity, anger, lack of trust, or resentment; all the specters of past arguments and disappointments.

If a couple is divorcing but using attorneys to do the negotiation, all these feelings will likely still arise, but there is a certain amount of insulation between each partner and the other. Over the long run, mediated agreements produce better outcomes, and fights in court are uglier and much more costly than the disagreements that come up in mediation. But in mediation the partners are committing to spending time together, with the mediator, and are courageously facing whatever feelings that brings up.

Now if you’re a former mediation client of mine, and you think back on your mediation, courage may not be the word that comes to mind. But I say you are courageous – I salute the courage of couples who choose to mediate. It is the easier way to divorce because you can resolve all the issues in a shorter time, with less expense, and with more flexible and creative solutions available to you, than if you litigate. Mediation tends to produce more lasting agreements, that the partners both feel some ownership in. But even though it’s the easier way, it can also feel like the harder way, in the moment, as you mediate and face everything that brings up. Easier, harder, and worth it.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Will You or Won't You?

Wed, 11 Sep 2019 20:29:26 GMT

Why hire a professional for estate planning? Can't I do it myself?

"Why should I hire a professional to write my Will, when I can do it myself on (fill in your DIY legal document web site name here) for much less money?" I do get this question, and here's what I tell people. You can get do-it-yourself Wills on a number of web sites these days, and pay a fraction of what a professional, customized set of estate planning documents will cost you. Even before the web, you could go to a stationery store and buy a fill-in-the-blanks Will for a few dollars. After all, the do-it-yourselfer in the the photo above used a few cents worth of duct tape to save $15 - $50 on a new garden hose. And that may just be okay as long as the leaks don't end up destroying the floor. In the case of a Will, you won't be around to discover what your DIY job may destroy. Your estate plan is what you do for the people who come after you, those who you want to be able to enjoy the fruits of your labor when you're gone. Do you want your DIY job to cost your heirs a significant chunk of your estate, before they can collect their inheritance?

When I do estate planning, we look at: handling your affairs while you're alive, in case you're incapacitated; handling end-of-life choices; planning you may need to do to qualify for nursing care; whether you need to plan for estate tax consequences; as well as creating a Last Will and Testament to care for your loved ones after you're gone. I can tell you I would make a lot more money sorting out the mess of an estate where proper planning was not done, and appropriately customized documents were not prepared, than I do in creating an appropriate estate plan now. A new garden hose is a lot cheaper than fixing water damage.

DIY websites may not be run by attorneys, and cannot give legal advice. They have no ability to ask the right questions and provide customized solutions - if your life doesn't fit the blanks in their form, you're out of luck. If there's a problem, they have no ability to go back and fix it. "But all I want is a simple Will," is another thing I hear. Most people think their life situation is simple, but whether you need a simple Will or a more complex one, depends on what you need to accomplish. A professional consultation will help you determine what you need. At Oltman Law & Mediation we are happy to help. Please give us a call at (609) 924-2044.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Sorting Out Your Finances

Thu, 22 Aug 2019 16:44:22 GMT

Tips to Help Parents Organize a Savings Plan: A Guest Post by Sara Bailey

Something weighing heavily on my mind lately is the fact that more than 75 percent of Millennial parents don’t have life insurance and that barely half of these have a will. As a now-single mother and widow, I found out the hard way why having a solid financial plan in place is crucial, regardless of age. Part of the healing process for us was to regain financial traction, but it was hard, and there were times when I was angry that it wasn’t taken care of before. I hope that the following advice will save someone else the heartache we endured.

For many parents, thinking about finances and saving money might induce stress and anxiety; it’s hard to think about the future when there are so many other important things happening in the present. Raising a child is a huge job, and for new parents , there are lots of details and new experiences that come along with it that override thoughts of money.

However, it’s important to start planning as early as possible for your financial comfort, as life will throw many curveballs your way over the years. From home maintenance to school expenses, there are many things that could drive up your debt and derail your savings plan.

Also, start thinking about a plan for your family after you’re gone. While no one wants to think about end-of-life preparations, doing so now will help your loved ones immeasurably in the event of your death, giving you peace of mind that they’ll be taken care of no matter what happens. Keep reading for some of the best tips on how to start stress-free financial planning.

Educate yourself

It can be difficult to know where to begin with planning if you’re unfamiliar with certain terms or the best way to save, so do some research . Talk to your bank about the best savings accounts for college and exactly what they entail. For instance, one plan may require that all the money in the account be used within a certain time frame, or that it only be used for college, meaning that if your child decides to travel the world instead, he can’t withdraw the money and use it to fund his trip. Getting educated about your finances will not only help you have a better understanding of how to prepare, but it will also help reduce your stress throughout the process.

Update your insurance

Being a new parent is scary because it’s so easy to think about all the things that could happen, from car accidents to illness. Updating your health and life insurance policies will ensure that your loved ones are taken care of no matter what happens, and you will be covered in the event of an accident or illness. During this time, you should also decide whether a pre-paid funeral plan is something worth looking into; considering that the average funeral in the US costs around $8,508 , taking care of this expense ahead of time will take some of the burdens off your family’s shoulders. Additionally, it’s also a good idea to look into creating a living will .

Calculate your worth

All good financial planning starts with a basic rule: Know your worth. Adding up all of your investments and assets will give you a good idea of where to begin when you start thinking about college funds and retirement, and since one of your biggest investments is your home, you’ll want to find out how much it’s worth .

Create a savings plan

Not only is it important to figure out how to save in the long-term--for college, for instance--it’s a good idea to start learning how to save money in the short-term and on a daily basis. You might start cooking more often than you eat out, carpool to save money on gas and supplement your income by selling gently used clothing and accessories on apps such as Vinted and Poshmark. While it may seem like these saving tactics aren’t doing much, they can help you save quite a bit of money if you stick with them.

Figuring out your finances and learning how to save will give you peace of mind, both now and later in life. With a good savings plan, you and your loved ones will feel secure and safe no matter what comes your way.

 Sara Bailey

From time to time we will bring you guest posts on topics of interest.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.

CASA Volunteers help New Jersey’s Neediest Children

Tue, 18 Jun 2019 19:31:20 GMT

A guest post by Helen L. Davis

New Jersey’s State child welfare agency placed Lucy (not her real name) and her younger sister in the State’s care after allegations of physical abuse by their mother were substantiated. The Family Court Judge asked for a Court Appointed Special Advocate (CASA) for these sisters and Abbey a CASA volunteer accepted the assignment.

Abbey visited with the sisters every few weeks and worked with the foster parents and the child welfare agency to determine if there was a home that could accommodate both children. The sisters were eventually placed with their grandmother after receiving the necessary educational support services and occupational therapy that was so desperately needed.

CASA volunteers like Abbey help children like Lucy and her sister find stability, permanency and loving, stable homes. Since 2000, CASA of NJ, Inc. part of a national network of non-profit programs that advocate for children removed from their families because of abuse or neglect, has been successful in its mission.

CASA of NJ promotes and supports a statewide network of local CASA programs (Affiliates).CASA programs operate in all 21 counties in New Jersey. CASA Affiliates recruit and train community volunteers to be a "voice in court" for children. These advocates "speak up" for these children, helping them get the services they need and ensuring that they find safe, permanent homes. All that’s required to become a CASA volunteer is a bit of time and training to make a difference in the life of a child in foster care.

CASA volunteers visit the child approximately once a month. They work as facilitators to secure resources and services such as therapeutic evaluations for a child and family, tutoring services, educational resources, medical services, etc. CASA volunteers provide consistency and facilitate a strong foundation for a child’s growth and development. The CASA volunteer remains on the case until it is permanently resolved.

The CASA volunteer meets with the child, parents, family members, social workers, school officials, health providers and others who are knowledgeable about the child’s history. They also review all records pertaining to the child’s case including education and healthcare. Then the volunteer is able to prepare reports and make recommendations to the court on the child’s status and needs.

For additional information, and to find out the steps to become a CASA volunteer, visit: www.CASAforchildrenNJ.org , or contact Helen Davis, CASA Statewide Volunteer Sourcing Coordinator at hdavis@casaofnj.org - (973) 975-8050

"The Court Appointed Special Advocate (CASA) Programs have a record of public service protecting the safety and well-being of New Jersey's abused and neglected children, defending them from harm and ensuring that they are provided with the court-ordered services they need."

Philip D. Murphy, Governor of the State of New Jersey CASA Child Advocate Day Proclamation, April 6, 2018

From time to time we will bring you guest posts on topics of interest.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.

Living Wills for Young Adults & Their Parents

Thu, 21 Mar 2019 15:49:51 GMT

A gift you and your parents/kids can give one another

A Living Will, more formally known as a Health Care Proxy and Advanced Directives for Healthcare, is not actually a will at all. An actual will (“Last Will and Testament”) becomes effective when you die, and primarily gives your instructions as to what is to happen to your property after you die. A living will is used while you are still alive, and gives directions as to how (and by whom) you would like your medical care to be handled, if you are unable to make your own medical decisions, and what kinds of interventions, if any, you would want in an end-of-life situation.

All of which sounds rather grim, and not likely to be on the gift-wish list of young adults and their parents. From my own experience, having been through the deaths of 4 grandparents, two parents-in-law, and a parent, I feel that a living will is a gift that a person gives to their loved ones, who will have to make medical decisions for them if they are severely ill or injured. It can be devastating to operate without these kinds of instructions when you need to make life or death decisions for a loved one.

I find that people’s feelings about end of life decisions fall along a spectrum, from the “keep me alive if there’s any glimmer of hope” at one end, to the “aid me in having a peaceful and pain-free death” at the other.

Do we know how our loved ones feel about these issues, and what they would want to have happen in an end-of-life situation? What if a young adult, just turned 18, is in a catastrophic accident? Because an 18 year old has reached their majority, parents will not automatically be permitted to direct medical decisions if the young adult is unconscious or otherwise unable to make their own decisions. On the other hand, once a young adult turns 18, they might be called on to make medical decisions for their parents if the parents are unconscious or incapacitated. A living will prepares for these situations, and gives loved ones guidance in a moment of crisis. While I offer this advice with a heaping measure of “Gods and the fates forbid,” and hope no young adult or parents of a young adult will need to make use of a living will for many years to come, being prepared brings peace of mind.

Parents can give peace of mind to their young adults by making their own living wills, and young adults can give a gift peace of mind to their parents the same way. New graduation/coming of age gift idea? At Oltman Law & Mediation we are happy to help. Please give us a call at (609) 924-2044.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

What's in YOUR Marriage Contract?

Tue, 26 Feb 2019 18:56:18 GMT

Using a Pre-Nup to create the marriage you want.

How many of us can answer that with much certainty? In fact, marriage is the most major and significant legal contract that you are ever likely to enter into, without knowing the terms of the contract. Sure, if you’ve bought real estate, you may not have understood all the terms of the purchase contract, or all the terms of the mortgage you agreed to, in order to finance your purchase. But regardless of your level of understanding, the terms were all laid out on paper (though perhaps in tiny print and obscure legal language), where you could study and consider them. With any luck, you had an attorney helping you with the transaction; with any luck that attorney answered your questions and explained the things you did not understand. Ultimately, you could have decided not to buy the real estate, if you weren’t prepared to agree to the terms. The same goes for other commercial transactions; there was a document setting out the terms of the transaction, and you had to sign to signify that you understood and agreed to the terms.

Not so with marriage, where you are entering into a legal status and set of rights and obligations that you may not be aware of, and they are not spelled out for you, not even in tiny print and obscure legal language. Most likely you promised something in your marriage ceremony, whether in the traditional Anglo-American formulation, to love honor and cherish your spouse, in sickness and health, for richer or poorer, as long as you both shall live, or whether in your own words, or in the formulation of your cultural or religious tradition. A contract is defined as an agreed-upon exchange, where each party is giving something up (money, or the house, in the real estate example), and each party is gaining something. When you mutually promise to take care of each other, to care for each other no matter what, that in itself could form a contract, because each is giving the promise of future care, in exchange for the same from the other spouse. But if that was all that the marriage contract contained, our society would look very different than it does now, and a divorce would be a matter of proving the other person breached the contract, and awarding damages for that breach. In this day of no-fault divorce, only an allegation of irreconcilable differences is needed, and it is rare for fault to have any effect on the financial outcome of the divorce.

Here’s some of the main components of your marriage contract if you were married in the State of New Jersey, or even if you married elsewhere and then moved to New Jersey while married.

· A promise of mutual financial support.

· A right to share in the products (money, goods) of one another’s labor during the marriage.

· A right to open joint bank accounts.

· A right to file joint tax returns at the more favorable married rate.

· A right to inherit at least a third of your spouse’s property upon their death.

· A right to sue for your spouse’s wrongful death or for loss of their companionship and care (“loss of consortium”) if they are wrongfully killed or injured.

· An equal right to continue after divorce, as much as possible, the same lifestyle you had during the marriage.

· A duty to treat your spouse with respect (this is hard to measure or enforce, but the fact that fault-based grounds for divorce are still on the books, such as cruelty, abandonment, or adultery, show that failure in this obligation can lead to breach of the marriage contract).

· A fiduciary duty to your spouse – this is a higher duty of care and honesty than we are held to with other persons – we are not to defraud a spouse, to hide funds, waste marital assets (remember that includes everything earned by either of you).

· A duty to keep confidential communications private – neither spouse can be forced to testify against the other.

You can further define your marriage contract, including opting out of some of the provisions above, if you enter into a pre-nuptial agreement (pre-nup). This is an agreement between spouses that can include how they will treat their finances, what the support (alimony) provisions will be if they divorce, how pre-marital property will be treated, whether or not the spouse will take the statutory share of an inheritance if the other spouse dies, and other additional terms the spouses may desire. In New Jersey the agreement must be entered into before marriage in order to be valid – the promise to marry is part of the exchange that forms the basic contract.

Pre-nups are most common when one or both spouses has either been married before, or has children prior to the relationship, or has significant separate property before the relationship begins. However, you can also use a pre-nup to define other terms of your relationship – set up a structure for joint financial decision-making, for instance, discuss division of household labor, or define ways to compensate a spouse who takes time out of the workforce to raise children. Although it may be uncomfortable to discuss the topic of a possible divorce, you will be going into a stronger marriage if you are both clear in your expectations.

If you would like to talk about how to use a pre-nup to create the marriage you want, please give us a call at (609) 924-2044.

- C. Megan Oltman, Esq. 2/25/19

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates, or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.

But who's going to pay taxes on the alimony?

7051980283 — Tue, 14 Nov 2017 23:11:53 GMT

The GOP tax plan's impacts on divorcing families

The Republicans in Congress have proposed a tax bill that clearly benefits only the wealthiest individuals. There has been much written about the elimination or reduction of deductions for state and local taxes, for mortgage payments, for teachers who buy school supplies, for high medical expenses. All of these are real problems, and if the hideous bill passes, will increase taxes on many middle class families, all to give even bigger tax breaks to corporations and the wealthiest Americans. We can all hope that with the wave of popular sentiment against this bill, it will never pass, or not in the current form.

There are some lesser known provisions of the bill that will disparately impact divorcing families and single-parent households. The elimination of Head of Household as a filing status will cause a significant increase in the tax burden on single parents, further undermining the well being of a struggling sector of our society. Child support awards, based on net earnings of the parents, are usually calculated assuming Head of Household status for the parent of primary residence. These parents will need to petition for a modification of their child support awards to take into consideration a higher tax burden on the parent receiving support.

The bill also proposes to eliminate the tax deduction on alimony paid, a provision which is as confusing as it is senseless. This shifts the burden of paying tax on alimony payments from the recipient of the alimony to the payor. This will certainly generate more tax overall, as the higher earner, who may be in a higher tax bracket, will be paying the tax on those dollars, instead of the lower earner. This will be of some advantage to the recipient spouse but will usually mean less money available to the family overall. If this bill passes any current rules of thumb, used to negotiate alimony, will have to be adjusted to allow for the higher cost to the payor and decrease in the payor's available income. What happens to existing awards? The bill states it will apply to agreements entered into after December 31, 2017. Will the IRS be able to cope with the continued deductibility for older agreements, with no deductibility for newer ones? Will taxpayers have to attach their divorce settlement to their annual tax filing?

For people who are negotiating a divorce now, with the outcome of this legislation unknown, think about including the possible passage of this bill as a significant change of circumstances which would trigger a modification of alimony.

C. Megan Oltman, Esq.

Please contact Oltman Law & Mediation at (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.

Get out and Vote!

7051980283 — Tue, 07 Nov 2017 14:58:06 GMT

Election Day 2017 - NJ Gubernatorial Election

Please participate! We can only impact the world when we do. Get out and vote today - if you already voted thank you!

Mediating in Light of Bisbing v. Bisbing

7051980283 — Tue, 24 Oct 2017 02:07:08 GMT

New Jersey's New Standard for Parental Relocation

by C. Megan Oltman, Esq.

A couple divorces with the children spending time with both parents. Then, one parent announces that they will be relocating and want to bring the children with them. This will severely limit how often the children will be able to spend time with the other parent. Until recently, New Jersey’s standard for relocation was lenient towards the relocating parent – allowing the relocation of the children as long as there was a good faith reason, and the move was not “inimical to the interests of the children”.

On August 8, 2017, the New Jersey Supreme Court decided Bisbing v. Bisbing, (A-2-16; 077533, 8/8/17), abandoning the standard it set 16 years ago in Baures v. Lewis, 167 N.J. 91 (2001), and deviating significantly from over 30 years of law which started with Cooper v.Cooper, 99 N.J. 42 (1984) and Holder v. Polanski, 111 N.J. 344 (1988).

The Bisbing decision means that where parties share joint legal custody, and a parent wants to relocate the children over the other parent’s objection, the courts will apply a best interest of the child analysis, as they would with any request for a change of custody.

Following their divorce, the Bisbings shared joint legal custody of their children, with the mother as the Parent of Primary Residence and the father as Parent of Alternate Residence. In addition to holiday and vacation time, the father’s parenting schedule incorporated "every other weekend and on one weeknight during the weeks when he does not have parenting time".

The Bisbing appeal arose from a trial court’s post-judgment determination authorizing the mother, Jaime Taormina Bisbing to permanently relocate from New Jersey to Utah due to her remarriage, bringing with her the twin girls born November 2006, notwithstanding the father, Glenn R. Bisbing, III’s, objection to the children’s move.

Historical Perspective

Beginning in 1984, New Jersey ranked as one of the most permissive states for parental relocation. Bisbing brings us back into the mainstream on this issue. In Cooper (1984), and Holder (1988), the New Jersey Supreme Court greatly liberalized the standard for removal, permitting a custodial parent with a “good faith reason” to move with the children as long the move was not inimical to the children’s interests and would not adversely affect the other parent’s visitation.

The Cooper-Holder standard relieved the relocating parent of the burden of proving best interests, and left it to the non-custodial parent to try to prove that the move would actually be harmful to the children.

At that time, a traditional model of a divorced family was common, with the mother designated as the custodial parent, and the children typically spending every other weekend with the father.

In Baures v. Lewis (2001), the Court eased the burden on a custodial parent by creating a two-prong test, first to determine whether the relocating parent was the primary custodial parent. If court determined that they were the custodial parent, then the test was to prove good faith and that the move will not be inimical to the child’s interest. The Court outlined twelve factors to be considered in determining whether the move was in good faith and not harmful to the children. If there was a shared custody setting (no one “custodial parent”) then the court would treat the application as one for a change of custody based on changed circumstances and apply a best interests analysis.

Bisbing eliminates this two-tiered analysis and applies a best interests standard across the board. The Court in Bisbing rejected the discredited social science research, with its emphasis on the importance of the “custodial parent,” that they had relied upon in Baures.

Mediation and Relocation

The world has changed significantly since 1984. Shared parenting is now the norm in divorced families, and the term “custodial parent” is not much in use. The courts are committed to treat mothers and fathers equally, and Bisbing clearly reflects that commitment.

As almost anyone involved with actual custody litigation can attest, custody fights are expensive and time-consuming. One or more psychological experts will be needed to prove best interests.

While the Bisbing decision should promote fairness between divorcing parents, a relocation case has just gotten much harder to prove in litigation. In light of the Bisbing decision, divorce mediators may want to spend more time with couples in crafting solutions to a potential parental relocation.

- Reprinted from NJAPM Mediation News, Vol. 22, Issue 1, Fall 2017 .

Please contact Oltman Law & Mediation (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.

Child Support Modification

7051980283 — Fri, 15 Sep 2017 18:32:35 GMT

Hang onto your Divorce papers!

Did your lawyer tell you to keep all your divorce papers in a safe place so you can find them again easily? I realize that your divorce papers are probably not so old they were written with a quill pen, but they can be just as precious. Here’s one of the reasons for it: If you need to make a motion to modify a support obligation later on, you can’t do so without filing both a current case information statement and the original case information statement filed in your divorce action, under NJ Rules of Court Rule 5:5-4(a). This requirement was underlined in the case of Palombi v. Palombi (N.J. Appellate Division, 2010) where the court held a motion deficient on its face, that sought a modification of financial obligations without providing a current and a prior case information statement. The deficiency was evidentiary, the court said, and could not be cured at oral argument. In other words, only the original case information statement would be considered sufficient evidence.

- C. Megan Oltman, Esq.

Please contact Oltman Law & Mediation (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.

Time for Gestational Surrogacy Contracts in NJ?

7051980283 — Wed, 05 Jul 2017 16:35:14 GMT

30+ years past Baby M

Before its summer recess, the New Jersey Senate passed S-1238, which would permit legally binding gestational carrier agreements. Couples who cannot conceive and carry a baby in the usual way may wish to hire a surrogate to carry another woman's fertilized egg to term. At present there are no laws which permit such an arrangement in new Jersey, and agreements for gestational surrogacy will most likely not be upheld by the courts. For practical purposes, this does not prevent surrogacy from happening, but it does mean that the parties may not be protected in the rights they bargained for. The bill's sponsor, Senator Joseph Vitale reports that there are 12 states, plus the District of Columbia, which permit and regulate gestational surrogacy contracts: Arkansas, Delaware, Florida, Illinois, Nevada, New Hampshire, Tennessee, Texas, Utah, Virginia, Washington state and Wisconsin, along with the District of Columbia.

On June 27, the New Jersey Law Journal quoted Senator Vitale's statement:
"For men and women who are looking to start or expand their families but have struggled to do so through traditional means, surrogacy
offers an alternative path to having children. As science advances, and more couples turn to surrogacy, gestational carrier agreements are
imperative to protect the interests of all parties involved, including the carrier, the intended parents and the child."

Governor Chris Christie has vetoed similar legislation twice, and may do so again. Governor Christie stated that he felt more study was required into the legal and ethical ramifications of surrogacy.

In the Baby M case, In re Baby M , 109 N.J. 396 (N.J. 1988) the NJ Supreme Court invalidated a surrogacy contract, giving the surrogate/birth mother parenting rights with the child. Baby M's birth mother was in fact also the biological mother, since it was her egg that was fertilized with the father's sperm. In a later case, a NJ Court upheld parental rights for a gestational carrier even where a donated egg was used.

The NJ Law Journal reports that under the bill
"the gestational carrier must be at least 21 years old, have already given birth to at least one child, and have completed both medical and
psychological evaluations. The intended parents would be required to have completed a psychological evaluation to determine their
suitability to enter an agreement, and to have retained an attorney to advise them about the terms and potential legal consequences of
entering into an agreement. The agreement would have to clearly state that the gestational carrier would agree to undergo pre-embryo
transfer, to attempt to carry and give birth to the child, and to surrender custody of the child to the intended parent immediately on the birth
of the child. The agreement would allow for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and
postpartum care. The agreement would not be considered an adoption, a surrender of custody, or a termination of parental rights."

States that do provide for surrogacy by contract often forbid compensation for the surrogacy, beyond payment of expenses of the pregnancy, birth, medical care, although some, like Florida, provide that the surrogate's living expenses may be covered. In Virginia a surrogate contract, to be valid, has to be approved in court, with a law guardian appointed for the potential child, and a home study done on the home of the intended parents, similarly to an adoption proceeding.

The concern, widely raised at the time of Baby M, that surrogacy might lead to exploitation of women's - and especially poor women's - child-bearing capability, appears to have been dealt with in the drafting of the surrogacy statutes around the country. A carefully drafted statute seeking to balance and protect the rights of the parties involved, seems to me far preferable to surrogacy happening without any regulating laws, as it is today.

- C. Megan Oltman, Esq.

Please contact Oltman Law & Mediation (609) 924-2044, if we can help you with your family law, elder, trusts and estates or mediation needs in New Jersey.

Please note that blog posts do not constitute legal advice, but are intended for informational purposes only. They cannot substitute for an in-person consultation with a lawyer. Your use of this site does not create an attorney client relationship.