Monthly Archives: March 2014

Can I back out of divorce/separation agreement?

An agreement isn’t binding until a judge signs and enters it. If you find, after consideration and possibly advice of independent counsel, that the terms and conditions enclosed in the Agreement are not tolerable or include things you feel you can not live with, then do not passively allow it to happen to you.  Once the Agreement is entered into the court and made into an Order, you are bound by it. But, you can stop it at any time before that.  (There are ways to open the Agreement and modify certain terms and/or conditions, but they are difficult and costly.)

An Agreement memorializes the things the parties want and agreed to.  If you don’t agree, then its pointless.  Step back from an Agreement that does not represent what you agree to.  Don’t be bullied or coerced into signing.  If you signed it already, you have a last chance at the final hearing to express to the Court that you did not willing sign the Agreement.

torn curtain

Whether you live in an equitable distribution state or a community property state, property (personal and marital) can be put on the chopping block for distribution. The time and money and effort you put into the marriage  has a quantifiable value. I think every party should fight for their fair share.

You should retain a lawyer and fight for the things you are entitled to receive. The short answer to your question is: YES.

 

3 Siblings Made Up a Will after Father Died. What is the Possible Penalty?

Forgery and fraud are crimes–serious crimes, and they carry serious criminal penalties. Lying to the tribunal, by submitting falsified papers, can give rise to civil and criminal contempt charges as well as subject one to fines, and/or incarceration.

scales of justice 2
When a person dies without a Will, they are deemed to be “intestate” (without a ‘testament’).  The courts have devised a “scheme” or plan for distribution of the assets of an intestate decedent predicated upon the surviving relatives. This is called the “Intestate Distribution Scheme”: A wife, if she survives the Husband is first to “take” (a legal expression that means when an heir can convey property from the decedent’s estate to the heir’s, with the permission of the Court.).  Wife will get the entire estate, if there are no children.  If children, then Wife gets the first $50,000 and one half of everything else; the children get the remainder of the estate divided equally among them.  The plan goes on: if no children or spouse, then grandparents, then nephews and nieces, and so on. It should be noted that a person must be alive and survive the decedent to be eligible to “take” ; a divorce severs all rights of the ex-spouse to any claim to the estate,

The irony, under the facts your question included, is that the 3 siblings who conspired to forge their father’s Will would, under the intestacy distribution plans, have inherited in equal part the whole of the estate–legally–without risking recriminations. Crime doesn’t pay.  Don’t be tempted.  A Will is an inexpensive way to assure that your wishes for distribution of your property after death are reasonably observed.

Everyone has an “estate”–it may be large or small.  Simplify the life of your survivors by getting a Will done sooner, rather than later. Don’t tempt your children to forge one.  Consult with an attorney about having a Will drafted today!

 

What is the Difference Between Guardianship and Custody?

Custody is the exclusive purview of a parent.  A parent is the natural guardian of a child. When a child is born there is a presumption of legal and physical custody of the child to the biological parent(s).  However, for every rule of law there are exceptions.

father holding hands with child 2

If a child is born to a married couple, the presumption of legal and physical custody is in both parents.  If a woman has a child within 300 days of a marriage, the husband is presumed the father. But that can be challenged.  If a child is born out of wedlock, the father must establish paternity.  The father may voluntarily sign an acknowledgment of paternity at the time of birth, but that will only go so far in a legal dispute.  The courts usually will require a DNA test to conclusively establish paternity when a child is born out of wedlock and the father chooses to exercise parental rights. The presumption of legal and physical custody remains with the mother unless and until challenged in court. This can happen any number of ways: either through a custody dispute during a divorce, a challenge for custody from a father who has established paternity or if the state intervenes.

“Guardianship of a minor” on the other hand is by court order to a non-parent. Any competent adult can seek guardianship of a minor.  The burden is on the moving party (the applicant) to prove why they should be appointed and empowered with the “parental” rights over a child.  The rights and obligations conferred through the award, appointment or nomination of guardianship are almost identical to those of a parent; however, the guardianship and its powers and rights can be terminated relatively easily as compared to the termination of parental rights.  The guardian is entitled to child support either from a capable parent by direct payment from a parent or parents or from the state in the form TANF, Aid for Families with Dependent Children or any other cash award programs a state provides, as well as medical coverage and food assistance.

The appointment of a guardian does not necessarily terminate the biological parents’ “parental rights” though they may not exercise certain powers while the child is under a guardianship. The court may preserve the parent’s rights of visitation; the biological parent may, in certain circumstance, have accesses to information about school and medical decisions, though they do not have the right to make those decisions for the child while under guardianship.  The biological parent may petition the court for reunification with the child, unlike an adopted child.

Dad Must Pay Half of Daughter’s Law School Costs

Reprinted by Permission – American Bar Association Journal

A Rutgers University history professor will have to pick up half the cost of his daughter’s education at Cornell Law School, which will cost him about $112,500, according to a New Jersey appeals court.

James Livingston is required to pick up the tab because of terms in his divorce settlement agreement, according to a decision (PDF) last month by the New Jersey Superior Court, Appellate Division. The New Jersey Star-Ledger and the National Law Journal (sub. req.) have stories.

The divorce agreement said Livingston would pay half the expenses for his daughter’s post-college higher education, according to the opinion. The agreement also said the daughter would provide Livingston with a copy of her class schedule, grades and financial aid information within five days of receiving them. Both Livingston and his ex-wife were not obligated to make any financial contribution, however, if the daughter did not maintain a C grade point average.

Livingston initially offered to pay $7,500 a year for his daughter’s legal education, provided that she attend Rutgers Law School, live at home with her mother, and provide him with progress reports, according to the opinion. He claimed his daughter should have informed him of financial aid offers from other law schools, and he should have been allowed to jointly decide with his daughter which law school she would attend. He also argued that his continued estrangement from his daughter was a changed circumstance that relieved him of his obligation.

The appeals panel rejected those arguments. A frequently used provision in divorce settlements gives fathers the right to participate in school selection, but Livingston’s agreement didn’t have such a clause, the court said. The court also pointed out that Livingston was already estranged from his daughter when he entered into the divorce agreement.

“If a relationship and a voice in the planning and selection of a school were his expectations,” the court said, “such terms could and should have been included in the agreement. They were not.”