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Driving while suspended. (N.J.S. 39:3-40 et. seq.)

May 7

Posted by admin in DWI, Municipal Court, Traffic Law | No Comments


The following article was written by E. Gregory M. Cannarozzi, Counselor-at-Law, L.L.C. and can be found on New-Jersey-Lawyers.com

Municipal Court

Driving while suspended. (N.J.S. 39:3-40 et. seq.)

One of the most difficult statutes on the books in New Jersey is driving while suspended. In addition to the strict penalties involved, even for a first offense, violation of  a second offense carries with it mandatory jail time which, depending on the circumstances, can sometimes be served under the Sheriff’s Relief Program. However, depending on the nature of the basis for the suspension, this Statute provides for enhanced penalties (such as driving while suspended with no insurance or because of a DWI suspension). In addition, if there is an accident and injuries are involved the penalties are even further enhanced, resulting in added jail time, community service and extended periods of revocation of registration and driving privileges. It is extremely important that a client obtain the services of an experienced trial attorney in these areas because the punishment, under this Statute, is perhaps, the most draconian of any traffic related offense in New Jersey. Unfortunately, unlike certain DWI scenarios, there is no “step-down” provision for driving while suspended, which means that the time elapsed between a first and subsequent offense is of no legal import! It is imperative that the client provide all relevant facts and that a complete analysis of the client’s driving record be examined for any exceptional details which may provide a basis for mitigation under this complicated Statute.

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Business Formations

Apr 30

Posted by admin in Business Law | No Comments


The following article was written by E. Gregory M. Cannarozzi, Counselor-at-Law, L.L.C. and can be found on New-Jersey-Lawyers.com

Obtaining an EIN and Formation of a S/C-Corp/LLC. It is a common misperception that obtaining an Employee Identification Number (EIN) for purposes such as operating a Corporation or an LLC and even for the administration of an estate, is a complicated matter. In reality, with assistance of counsel, an EIN number can be obtained quickly from the IRS. In conjunction with the formation of a C-corporation, S-corporation or LLC, an EIN is readily obtainable once a Certificate of Formation is filed with the specific estate where the business is located. My law firm, customarily, obtains the appropriate EIN and the requisite State certifications for doing business along with the formation of the requested business entity, generally, within 48 hours.

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The Bankruptcy Means Test

Apr 21

Posted by admin in Bankruptcy | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

The Bankruptcy Means Test

A. The Bankruptcy Means Test

Under the old bankruptcy law, almost any citizen of the United States could file for a chapter 7 or a 13. Before the law change, any debtors whose debts were primarily consumer related were only subject to scrutiny by the trustee or the bankruptcy court. Under the old law almost all debtors were entitled to file for a chapter 7 regardless of their income level.

The new bankruptcy law now “lowers the boom” on debtors. The new bankruptcy code now includes a formula test and it is called the bankruptcy means test. This test determines what debtors are eligible to file for chapter 7. The bankruptcy means test applies to debtors whose debts are primarily consumer debts. Consumer debts include credit cards, car debt, and mortgages. Many debtors are forced into bankruptcy because of a failed business or a large business related judgment. Any debtors who have primarily business debts are exempt from the means test and they may file a chapter 7 without completing the means test. The bankruptcy means test evaluates your income. Your income is then compared it to the official median income for households in the State of New Jersey as reported by the Bureau of Census in the most recent reporting year. The median income base increases with the size of your household.

Any debtors with an income equal to or below the New Jersey State median income for families of the debtor’s size are exempt from the bankruptcy means test. For those debtors with income above the New Jersey state median income, then there is a presumption of abuse on the part of the debtor. The debtor has the burden of disproving any presumption of abuse.

The bankruptcy means test evaluates whether your current monthly income is greater or less than the applicable median income. Your monthly income includes income from all sources. The term Current Monthly Income or (CMI) has a special meaning under the new bankruptcy law. CMI is defined as the average monthly gross income received during the six full months prior to your filing for bankruptcy. In applying the bankruptcy means test, the debtor’s average income over the past six months is used, regardless of present actual income. The CMI includes gross income from all sources including income of a non-filing spouse, regular gifts or assistance from family members, and gross income from a wholly-owned business. Any social security income is excluded from the definition of CMI.

If your CMI exceeds the State of New Jersey median income, then the bankruptcy means test applies a more complicated expense formula to determine your eligibility to file for chapter 7 case. The formula starts with your CMI and then it deducts several categories of allowed expenses to calculate your “net monthly income” which is presumed to be available to pay general unsecured creditors. The bankruptcy means test deducts certain expense categories from “current monthly income” to arrive at your “disposable income.”

B. Most debtors income levels are under the median income levels, and they are not affected by the means test.

The majority of debtors who consider filing for bankruptcy are under the median state income level. Therefore, most debtors pass the means test, and can file for a chapter 7. Any debtors who are over the State of New Jersey median income may have a more difficult time filing a chapter 7 case, and they may be forced to file for a chapter 13 case. The bankruptcy means test will not bar a debtor from filing a bankruptcy. Instead, the means test will only help determine what type of bankruptcy the debtor must file.

C. Bankruptcy Means Testing and Business Bankruptcy Cases

The bankruptcy means test does not apply in a business bankruptcy case. Business bankruptcy cases are the most significant exception to the new means testing requirements. Means testing only applies if the debts are “primarily consumer debts.” The “means test” does not apply to cases wherein a debtor incurs most of their debt in connection with the operation of a failed small business. Business bankruptcy cases are completely exempt from the means testing requirements. It is readily apparent that the new bankruptcy code favors business bankruptcy cases over consumer bankruptcy cases. Therefore, a bankruptcy court can’t dismiss a business bankruptcy case under the abuse standards that only apply to consumer cases.

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New Jersey Intoxicated Driver Resource Center

Apr 14

Posted by admin in DWI | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

New Jersey Intoxicated Driver Resource Center

If a driver has been convicted of an alcohol or drug related traffic or boating offense in New Jersey, then he must satisfy the requirements of the Intoxicated Driving Program (IDP) and the Intoxicated Driver Center (IDRC).

The Intoxicated Driving Program is a unit of the Division of Addiction Services of the New Jersey Department of Health and Senior Services. The IDRC’s are units of, or contractors to, the 21 counties. IDP schedules you for the 12- or 48- Hour IDRC program and notifies Motor Vehicle Commission (MVC) when you have completed or failed to comply.

If a driver is sentenced as a first offender, he will be detained, educated, and evaluated for at least six hours each day on two consecutive days — a total of 12 hours – in the county IDRC facility. If the driver is sentenced as a second offender and he is not sentenced to jail or inpatient treatment, he will be detained, educated and evaluated during a period of 48 consecutive hours in a regional facility.

If a driver is sentenced as a third offender, then the municipal court may sentence the driver to jail or to an inpatient alcoholism treatment program or both. Nonetheless, the IDP will schedule the driver to appear at the 12 hour IDRC for a follow-up evaluation. The driver may also be required to participate in additional treatment or self help. In all cases you must satisfy the program, fee and treatment requirements of IDP/IDRC before any type of driver’s license is restored.

The Motor Vehicle Commission (MVC) will also send the driver a notice confirming your license suspension, and they will also bill the driver $200 for the MVC restoration fee ($100) and the IDP administrative fee ($100). The IDP fee is required for each alcohol-related conviction. The combined fee of $200 is payable immediately to the DMV upon confirmation of the suspension at a 12-hour IDRC or $200 at a 48 hour IDRC. If the driver is referred to a treatment program then they are also responsible for these costs.

If a driver does not live in New Jersey, then he/she still will have to comply with the program requirements. The driving privilege restoration and IDP fees $200.00 still must be paid to Motor Vehicle Commission. If you live within driving distance of an IDRC in New Jersey, then you will be scheduled to appear there. If not, you will be given an opportunity to satisfy the requirements in your home state.

If you fail to appear at the IDRC or if you do not satisfactorily complete a prescribed treatment or self-help program, or pay the fees on time, your license suspension will be extended, and you may also be jailed two days for non-compliance. The IDP/IDRC program completion will still be required.

What happens at the IRDC?

The driver will have to pay the IDRC a program fee and also complete a questionnaire. The driver will attend a series of educational sessions and discussions about DWI and the effects of drinking and driving. Most often, the drivers will have to watch numerous videotapes of bad accidents involving DWI. The driver will also meet with a counselor for their own personal evaluative interview.

The education program, which is part of the 12 and 48 hour IDRC, contains information on social and problem drinking, stages of alcoholism, the family and other relationships, alcohol and drugs and their effects on driving ability, and the New Jersey Intoxicated Driving Law.

After the education program, the driver may be referred to a treatment program or self-help group for alcohol or drug problems. If the driver is referred to treatment, it will be for a minimum of 16 weeks. The IDRC may require monitored treatment or self-help group attendance for a maximum of one year. You must complete treatment as part of your sentence.

A person’s driving privilege will only be restored when they have served all court- and MVC-imposed suspensions and if they are in compliance with all of the Intoxicated Driving Program and Intoxicated Driver Resource Center requirements.

INTOXICATED DRIVER RESOURCE CENTER – FAQ’S

1. How does the program apply to me?

If you have been convicted of an alcohol drug-related traffic or boating offense in New Jersey, then you must satisfy the requirements of the Intoxicated Driving Program (IDP) and the Intoxicated Driving Center (IDRC). These programs have two purposes; (1) to make our highways and waterways safer by educating drivers and boat operators about alcohol, drugs and their relation to motor vehicle and boating safety; and (2) to identify and treat those who need treatment for an alcohol or drug problem.

2. What program must I attend, and where is it?

If you are sentenced as a first offender, you will be detained, educated and evaluated for at least six hours each day on two consecutive days – a total of 12 hours – in your county IDRC. If you are sentenced as a second offender and not sentenced to jail or inpatient treatment, you will be detained, educated and evaluated during a period of 48 consecutive hours in a regional facility…… to read the balance of this article click here

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When Should I Contact a Bankruptcy Lawyer?

Apr 7

Posted by admin in Bankruptcy | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

When Should I Contact a Bankruptcy Lawyer?

Are you behind on your bills? Are you up to your neck in debt? Do bill collectors call you at morning, noon and night? Do you receive collection calls at work and then have panic attacks? Do you cringe when you open the mail? Is all of your mail the color red? Do you fight with your spouse over your unpaid credit card bills!

If this description sounds like your life, then it is important that you consider filing for bankruptcy now? Getting control of your debt and of your life is entirely possible. If you simply ignore or avoid your financial problems then this will only exacerbate your debt problems. The interest and late fees do not stop on your credit cards, and they go on and on like the Terminator. Knowing when you need to contact a bankruptcy lawyer is a very critical decision. Don’t wait until it’s too late!

Knowing When to Consult a Bankruptcy Lawyer Could Make All of the Difference

* If you are facing foreclosure or repossession, then contact a lawyer immediately.

* If you have been sued or about to be sued, then contact a lawyer immediately.

* If you have an IRS levy, a tax lien or a tax problem, then contact a lawyer immediately.

The above financial disasters are clear events that demand that you seek the assistance of an experienced bankruptcy lawyer. However, there are some debtors who just don’t take the above type of financial disasters seriously. For whatever reason, some New Jersey-ites will avoid dealing with their debts until they are sued, their paycheck is garnished, their bank account is frozen from a bank levy, or the repo man has snatched their car…..to read the balance of this article click here.

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DWI MVS Surcharges

Mar 27

Posted by admin in DWI | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

DWI MVS Surcharges

The New Jersey Merit Rating Program, created by N.J.S.A. 17:29A-35 requires Motor Vehicle Services to collect insurance surcharges from motorists whose driving records include certain motor vehicle offenses. The surcharges are in addition to any court-imposed fines and penalties, or any premium or surcharge fees assessed by insurance companies.

Surchargeable events include alcohol and drug related offenses, regulatory offenses such as driving without a license, driving without valid insurance or driving while suspended, and accumulating six or more points in a period of three years or less. These surcharges are assessed each year for three years. (Please note that point credits are not considered when assessing surcharges). All surchargeable offenses are billed as they appear on your motor vehicle record. Motor Vehicle Services does not have the authority to reduce your surcharge payments or change any court-reported violations.

Revenue generated is used to repay $705 million in bonds sold to eliminate the debt of the Market Transition Facility (MTF). The MTF provided auto insurance to those unable to obtain coverage in the voluntary market. Part of the revenue is also designed for alcohol rehabilitation for drunk drivers.You are responsible for paying the surcharge even if you move out of NJ. The surcharge is imposed regardless of your current license, registration and/or insurance status.

SURCHARGEABLE EVENTS

DRUNK DRIVING – A drunk driving charge costs a driver a significant amount of money in surcharges. The surcharge for a drunk driving violation is $1,000 a year for three years. A surcharge of $1,500 a year will be charged for a third or subsequent violations……Read the balance of this article here.

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Child Custody and Religion

Feb 22

Posted by admin in Divorce and Family Law | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

1. When parents of different faiths separate, how do courts decide whose religion the children will follow?

In today’s world, there are more interfaith marriages than ever before. New Jersey is becoming more multi-cultural each and every generation. As a consequence, our citizens often fall in love and get married to people from different religions. In many interfaith couples if they should separate and divorce, they often have very nasty and difficult issues regarding custody and religion. When parents of different faiths separate, they don’t always agree on whose religion the children will follow. With the increasing numbers of interfaith marriages and the high divorce rates, this topic is frequently argued in family courtrooms all across the Garden State.

The choice of the child’s religion is a “major” decision. New Jersey courts have consistently held that if there is a dispute over the religion under which a child will be raised, then the primary caretaker has the final say. New Jersey case law is clear that the primary caretaker has the sole authority to decide the religious upbringing of his or her children. The courts will not interfere with the primary custodian’s section of any religious training or upbringing. The primary caretaker has this authority even where the parties share joint custody. However, the non-custodial parent may take the children to religious services of his or her choice during parenting time.

In summary, New Jersey case law consistently provides the primary caretaker the sole authority to determine the religious upbringing of the children. The rationale is that the courts don’t want to create any additional conflicts and pressures for the children to choose between separate religions. Unfortunately, the case law often conflicts with the parties’ PSA. Most PSA’s grant both spouses joint custody of the children, and also provide that both parties will jointly make the major decisions regarding the upbringing of the children. Most litigants reasonably believe that joint custody means that both parents have equal responsibilities and duties to choose the religious upbringing of the children. Therefore, in many family law disputes over the children’s religious upbringing, the parties’ PSA agreement often conflicts with the holdings of New Jersey case law……

Read the balance of this article from New-Jersey-Lawyers.com here

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Asset Tracing

Feb 15

Posted by admin in Divorce and Family Law | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

1. What role does asset tracing have in a divorce case?

In most divorces the couples come to court with all sorts of assets. Some of the assets are titled jointly, some are shared, and are never intended to be shared. Asset tracing is simply the process of the documentation and supporting of a claim that a marital asset is exempt property. In the majority of divorce cases the equitable distribution of marital property is the most grinding aspect of the process. Earning money and saving it is no easy task in today’s world. Moreover, as people get older it is not easy to replace assets that are lost to the other spouse in a nasty divorce case. The task of determining what assets is subject to equitable distribution is often an extremely arduous task. All property that is owned by one spouse individually or jointly is presumed to be marital property subject to distribution unless it can be shown that it is exempt from distribution. See, Painter v. Painter, 65 N.J. 196 (1974). The burden of proof for the exemption claim is on the party seeking it.

In summary, in many divorce cases it is very often unclear what assets are subject to equitable distribution. Many divorce clients only come to court after they have lived together for a longer period of time. The longer the marriage then it is more difficult to separate non-marital and marital assets. It is extremely important to keep exempt assets separated once a person gets married. If a spouse has a prenuptial agreement then it does not have much value if he mixes his exempt assets with his wife. If a spouse has property that he inherited then these assets should be only titled in his name. The spouse should not add his wife on the mutual fund account, bank account, or brokerage account that originally only contained exempt assets. In summary, it is critically important to keep exempt assets separate from the other marital assets. If a spouse mixes exempt assets and marital assets then it may be impossible to determine what percentage of the “marital pot” actually consists of exempt assets. A prenuptial agreement is useless unless the exempt assets are kept separate from the marital assets.

2. What does the term transmutation mean?

Transmutation is the process of turning separate property into property subject to equitable distribution. Some typical examples include the gifting of property from one spouse to another, the commingling of property by joining of assets, and the use of joint property. The term transmutation refers to the situation where non-marital property is slowly converted into marital property during a marriage. Therefore, the spouse who originally owned the non-marital asset loses his right to claim that the asset is exempt from equitable distribution.

The documentation and support of a claim of exempt property are typically done by using a process called asset tracing. Unfortunately the tracing of assets is often very difficult. In many high dollar cases, it is necessary to engage a CPA to assist in proving or disproving the separate nature of the property through an asset tracing accounting. The resulting documentation should demonstrate that at the date of complaint the asset is either exempt, marital or a combination of the two.

The asset-tracing process can range from the examination of documents that existed at the time of marriage to creating schedules that detail years of financial transactions involving the asset in question. The methods used are designed to demonstrate that the asset qualified as exempt property at the date of marriage and then to trace the exempt ownership and/or all transmutations of that asset up to the date of complaint. To establish this claim it is often helpful to retain the services of a CPA. Moreover, the client must obtain paper proof through discovery to prove that the asset is exempt. For instance, in the case of real estate, the gifting documents such as gift tax returns, the will, the letter of a gift, the deed and checks that would be critical evidence of the payment of consideration and of the source of those funds.

A common example of transmutation occurs when a newly married couple purchases a home. Quite frequently, one spouse purchases a house just before the marriage. Quite often the new husband uses his money and then purchases a home so that the couple has a place to live. Thereafter, the husband then makes all the mortgage payments over the next twenty years. If the couple eventually gets divorced, a key issue is whether the marital home is an exempt asset or whether it has been transmuted into a marital asset.

An argument can be made that the marital home is a non-marital asset, and that it is exempt because it was purchased by the husband before the marriage. In all likelihood this argument will not be successful. Even though the house was purchased prior to the marriage, only a small portion of it is really a non-marital asset. All of the mortgage payments, and the corresponding increase in equity, were made during the marriage with, presumably marital property. As these marital funds were applied to a non‑marital asset, the asset slowly took on a marital character with each monthly payment. The home in this example was transmuted from non‑marital property into marital property.

3. I purchased my home before I got married to my wife. We are now getting divorced, and my wife’s lawyer is now trying to claim that my home and my other financial investments were transmuted into marital property. How can I assist my lawyer to refute my greedy wife’s claims?…..

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Social Security Income and Bankruptcy

Feb 1

Posted by admin in Bankruptcy, Social Security | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

If you are receiving social security income, and if you need to file for bankruptcy, then contact the New Jersey Bankruptcy Center. We can answer all of your questions about bankruptcy and social security income at a free bankruptcy consultation. Moreover, many New Jersey-ites who receive social security income, and who need to file for bankruptcy are often scared that their creditors may be able to garnish their income.

Social security income is considered exempt in bankruptcy. In simpler terms, your creditors cannot take your social security income benefits in a bankruptcy. Since social security benefits are exempt under 11 U.S.C. 522 (d)(10)(a) no creditor and even the bankruptcy trustee can take your benefits. Federal law provides that social security benefits are exempt from garnishment, levies, or assignments by most creditors, and it is likewise exempt from the trustee in a bankruptcy case .

Now even though Federal Law and New Jersey law allows an exemption of social security income in bankruptcy. There are instances where certain kinds of taxes, student loans, social security over payments, or debts due to Federal agencies may attach to social security income outside of bankruptcy. These types of attachments may be in effect when someone files for bankruptcy or may even be the motivation behind filing for bankruptcy. In these cases the automatic stay of bankruptcy will temporarily stop such action but after the case is filed things can change.

Generally almost all income payments you may receive under the Social Security Act are exempt in a bankruptcy proceeding. These also includes social security retirement income, SSI or supplemental security income, SSD or social security disability insurance benefits. Many New Jersey-ites who receive social security not only live on a fixed income, but they often have no other source of income to live on. Filing for bankruptcy can provide many benefits to those on social security and who are in desperate need of debt relief. If you are facing financial problems such as foreclosure, repossession, or loss of property, we may be able to help. Bankruptcy was designed to help honest debtor’s who need debt relief and a fresh start. If you are receiving social security income and if you need to file for bankruptcy, then contact the New Jersey Bankruptcy Center. We would like to help you wipe out your debt and get a fresh start. We can explain how your social security income will be treated in a bankruptcy case. There is no charge for your first consultation. Therefore, don’t delay.

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A Guide For Living Wills

Jan 25

Posted by admin in News, Wills | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

A LEGAL GUIDE ON LIVING WILLS

The information below describes your legal rights concerning health care decisions and living wills. It explains your legal right to make decisions about your own health care under New Jersey law, and it tells you how to plan ahead for your health care if you become unable to decide for yourself because of an illness or accident.

1. Why should I consider writing a living will?

A serious injury, illness or a mental incapacity may make it impossible for you to make any health care decisions for yourself. In these real life situations, those responsible for your care will be forced to make these decisions for you. A living will is simply a legal document that which provides information for your treatment preferences to those caring for you, helping to insure that your wishes are respected even when you can’t make decisions yourself. A clearly written living will help prevent disagreements among those close to you. Moreover, a living will can reduce some of the burdens of decision making which are often experienced by family members, friends and health care providers.

2. What happens if I’m unable to decide about my health care?

If you should become unable to make treatment decisions because of an illness or an accident, then those caring for you will need to know about your values and wishes in making decisions on your behalf. Therefore, it is critically important to have a living will in this day and age. If you don’t have a living will then you could be forced to live as a vegetable for many years.

3. Where should I keep my living will?

In addition to the client keeping a copy of the living will, copies should be distributed to the health care representative and the alternate. Moreover, a copy should be given to your personal physician. Family members, friends, or anyone else who is likely to be involved in your health care treatments should also be given a copy.

4. Will the terms of my living will be followed?

Yes. Everyone responsible for your care must respect and comply with the directives and wishes that you have specified in your living will. However, if your doctor, nurse or other professional has a sincere objection to respecting your wishes to refuse life-sustaining treatment, then he or she may have your care transferred to another professional who will carry them out.

5. Does New Jersey recognize living wills as legally binding documents?

Absolutely. In 1990, the Supreme Court of the United States confirmed that a person’s rights to make choices about medical care are protected by the Bill of Rights. Under New Jersey law a living will are clearly legal and binding legal documents. Moreover, hospitals and physicians must also honor your living will.

6. What happens if I regain the ability to make my own health care decisions?

If you should regain the ability to make your own health care decisions, then you will have the legal authority to make any decisions regarding your health care and treatment. Thereafter, the person who holds holding your medical power of attorney will not be able to make these decisions for you.

7. What if I don’t have a living will?

If you should become unable to make treatment decisions and if you do not have a living will, then your close family member(s) will talk to your doctor and make these decisions on your behalf. However, if your family members or physicians disagree about your medical care, then it may be necessary for a court to intervene and to appoint someone as your legal guardian. This also may be legally required if you do not have a family member to make decisions on your behalf. That is why it is very important to put your wishes in writing to make it clear who should decide for you, and to help your family and doctor know intentions.

8. Will I still be treated if I don’t have a living will?

Yes. You will still receive medical treatment even if you do not have a living will. Your health insurance company also can’t deny coverage based on whether or not you have a living will.

9. How are living wills executed?

A competent adult may execute a living will at any time. The living will must be signed by the declarant and witnessed by either two adult witnesses or a notary public or lawyer. The witnesses must also attest to the sound mind of the declarant, and that the living will was executed free of duress or undue influence. The health care representative or the agent as listed in the living will is ineligible to act as a witness. In New Jersey the agent is also referred to as a health care representative. New Jersey recognizes living wills executed in other states as long as they comply with the laws of New Jersey.

10. How can I make any changes to a living will?

A living will can be modified at any time, as long as the declarant (the person who makes the living will) still has the ability to make sound decisions. If there are any changes to the living will, they should also be witnessed and dated.

To balance of this article can be found here on  New-Jersey-Lawyers.com.

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