The following article is part two of an article written by Theodore Sliwinski. ESQ about New Jersey Divorce and is featured on New-Jersey-Lawyers.com The balance of this article will be published in proceeding days. Or you can read the entire article on New Jersey Lawyers.

5. For equitable distribution purposes, does the court take into consideration if only one of the spouses worked during the marriage?
The fact that one spouse may not have worked during the marriage is not particularly important. The whole concept of a marriage in New Jersey is that it is an economic partnership. Unless proven otherwise, the court will presume that both the husband and wife both made substantial financial and/or non-financial contributions to the acquisition of income and property during the marriage.
In a traditional marriage, if the wife did not work during the marriage, the court will then emphasize her marital duties and homemaking chores that she contributed to the marriage. The court will not try to put an economic value on the wife’s contributions to the marriage. The most important aspect in an equitable distribution case is to determine what assets were acquired during the marriage. The court will not try to put a value on each person’s individual contribution to the marriage
6. What assets are considered part of the marital estate for equitable distribution purposes?
Only assets that are “acquired during the marriage” are considered to be part of the marital estate. Any property that was acquired before the marriage is considered to be premarital property, and it is not subject to equitable distribution. “During the marriage,” is frequently interpreted as beginning the day the marriage ceremony took place, and ending the day when the divorce complaint was filed.
The concept of a marriage is that it is an economic partnership.
Therefore, if the parties have a separation agreement before the complaint for divorce is filed, then the partnership died on the date of the separation agreement, rather than the date when the complaint was filed. Any assets acquired during the marriage would be considered under equitable distribution up to the date of the separation.
In summary, only property that is acquired during the marriage is subject to equitable distribution. However, property that is acquired by one party in contemplation of their marriage before the marriage is also still subject to equitable distribution. The courts recognize that the “partnership” of marriage may begin even before the actual marriage ceremony through the purchase of an assets, such as a home. The spouse who does not have his/her name on the deed may be required to show that they were actively involved in making improvements to the home before and after the marriage.
Additionally, all property that is acquired during the courts of the marriage is subject to equitable distribution. This includes real estate, homes, pension proceeds, and any other tangible or real property assets. Even if the property was acquired in one spouse’s name, it is subject to equitable distribution as long as it was acquired during the marriage.
7. How will the marital property be distributed?
All property acquired by the parties during their marriage is subject to “equitable distribution.” The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage.
“Equitable” does not necessarily mean that the property will be divided one-half to each of the parties. New Jersey is not a so-called “community property” State, where this would necessarily be the case. In New Jersey, there is no initial presumption in favor of an equal division.
The theory is based upon viewing the marriage as a partnership or joint enterprise, so that even if one party technically acquired all of the assets through earned income, while the other was at home and not working outside the home, the court would still recognize that the marriage was, in fact, a partnership and that, but for the fact that the unemployed spouse was at home keeping the household for the family, the employed spouse would not have had the opportunity to earn the income for the marital partnership.
Thus, the identity of the person who actually earned the money becomes largely immaterial and, unless the parties can agree upon a fair distribution, the court would distribute all property in a manner that it deems “equitable.”

If you help with a Divorce or Family Law matter in New Jersey and are looking for a attorney to assist you visit www.New-Jersey-Lawyers.com

The following article about New Jersey Divorce is featured on New-Jersey-Lawyers.com The below article has 21 topics. Due to the length we are listing only the first 4 in today’s posting. We will publish the balance of topics in proceeding days. Or you can read the entire article on New Jersey Lawyers

Equitable Distribution FAQ’s
BY THEODORE SLIWINSKI, ESQ.

1. How does property get divided in divorce?
New Jersey is an “equitable distribution state.” This means that in a divorce in New Jersey, any property that is acquired during the marriage must be divided in an equitable manner. Therefore, any marital property must be distributed either by a voluntary agreement of the parties or by an order of the divorce court.

2. What does equitable distribution mean?
Equitable distribution basically is the process as to how marital assets will be distributed. The distribution of marital assets is always very hotly contested and emotionally charged. In many cases, the parties actually become violent when they try to reach an agreement as to how to split up the marital assets.
The main theory of equitable distribution is that a marriage is an economic partnership. Therefore, each spouse is entitled to a share of the marital property.

3. What are the factors that a court uses to determine the equitable distribution of the marital assets?
There are many factors that a court takes into consideration when it determines how to equitably distribute the marital assets. The factors are the following:

1. The duration of the marriage;
2. The age, physical and emotional health of the parties;
3. The income of property brought to the marriage by each party;
4. The standard of living established during the marriage;
5. The existence of any written agreements made by the parties before or during the marriage concerning an arrangement of property distribution.
6. The economic circumstances of each party at the time the division of property becomes effective.
7. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquired sufficient educational training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
8. The contribution by each party to the education, training or earning power of the other.
9. The contribution of each party to the acquisition, dissipation, preservation depreciation or appreciation of the account or value of the marital property, as well as the contribution of the party as a home make.
10. The tax consequences of the property distribution to each party.
11. The present value of the property.
12. The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects.
13. The debts and liability of the parties.
14. The need for creation, now or in the future, of a trust fund to secure reasonable foreseeable medical or education costs for a spouse or child.
15. The extent to which a party deferred achieving their career goals.
16. Any other factors which the court may deem relevant.

4. How does a court determine how to apportion all of the marital assets in a marriage?
Equitable distribution calls for a judge to apportion the marital assets in such a manner that will be equitable and just to both parties under all circumstances. “Equitable distribution” states that each spouse is entitled to a portion of the marital property in relation to his/her contributions during the marriage.

Equitable distribution does not mean an equal division of the marital assets. The court cannot mechanically divide the assets on a 50/50 basis. When determining equitable distribution, the extent of each parties’ contribution to the marriage is not measured only by the amount of money that was contributed during the marriage. The court will also evaluate all of the financial and non-financial components of the marriage. Therefore, the efforts of raising the children, making a home and providing emotional support is as essential to the maintenance of the marriage as the economic factors. The trial judge also considers the factors above to help determine how much or how many of the assets should be allotted to each party.

The author of the above article, Theodore Sliwinski is from East Brunswick, NJ. Contact him for more information in regards to a NJ Divorce issue

This article was featured on New-Jersey-Lawyers.com a little while ago and we wanted to re-post it because it contains some helpful advice.

Automobile Accident FAQ’s
By Kamensky Cohen & Associates
www.kc-law.net

Published by www.new-jersey-lawyers.com

The Pains of an Automobile Accident:
Being involved in an auto accident is often far more than a mere inconvenience. In addition to the pain of injuries, concerns about your recovery, possible shock/psychological trauma and financial concerns, there are complicated legal and insurance labyrinths thru which you will need to maneuver.

How we can help:
In our legal practice, focusing on Personal Injuries, we encounter many of the same questions and concerns from our clients who have been involved in auto accidents. Below are some of the most common followed by brief, helpful answers. Above all, we highly recommend that you consult Kamensky - Cohen & Associates as soon as possible before you agree to any settlements offered by insurance adjusters, both those of the other driver(s) involved and your own.

Before you settle:
Sign nothing and accept no checks to cover your property or medical damages before consulting a lawyer! Even if you end up with no serious injuries, it is best to find out your rights before you agree to anything. Only a lawyer will be able to explain all of the legal, medical and financial issues with your best interests in mind. The insurance companies that contact you with advice are protecting their pocketbooks so be careful and consult with an attorney before you make any agreements.

Frequently Asked Questions:
Note: As our legal practice is in both New Jersey and Pennsylvania, a few of the following answers are specific to each of these two States and will be noted as such.

Do I need to notify my own insurance company if it is the other guy’s fault?
Yes, because, in order to obtain all the benefits and rights to which your auto insurance policy entitles you, notice is a pre-requisite regardless of who is at fault.

Should I notify the other guy’s insurance company?
Yes, if you are able to obtain that information at the scene of the accident, all insurance companies should be notified regardless of fault. If you have been hit, notice to the other party’s insurance company will help to insure that they will step in sooner rather than later and will help effectuate an early return of your various costs for property damage as well as establish a claim number to work with on all other related claims. If you engage an attorney, he/she should also give notice to the other party’s insurance company in writing.

Who should I notify if I am injured?
Aside from getting medical attention as soon as possible, you must, by law, notify the police. Most states require that they should be called to the scene of the accident. If they are not called, you should go to a nearby police station and make a report of the accident immediately. They will fill out an accident report form that will be referred to should a lawsuit arise, so be sure you respond accurately to their questions. If there are any witnesses, do everything you can to obtain their names, addresses and telephone numbers. As soon as you are able, you, or, if you are too injured, a family member or friend, should contact Kamensky - Cohen & Associates immediately to insure that your rights are being protected. Following the proper procedures will give you the choice of whether or not you want to pursue a claim later when the extent and true nature of your injuries are known.

Should I cash any checks from any insurance company sent to me to cover my damages?
Not without legal advice. Cashing a check may prejudice your rights in the future as regards the accident. We advise that you call Kamensky - Cohen & Associates to discuss your accident before accepting any monies offered you by an insurance company (your own or those of any other party involved in the accident) to be sure you are not jeopardizing your rights for future claims.

To whom should I send the doctor/hospital bill for any treatment I receive for injuries arising from an auto accident? Who pays for my or my family’s medical treatment following an auto accident?

NJ: In New Jersey: Your own auto insurance will pay for medical treatment arising from an auto accident in which you are involved regardless of who is at fault. However, make sure your medical providers know the regulations and requirements necessary to submit their bills to your auto insurance carrier to insure payment. We at Kamensky - Cohen & Associates can help guide both you and them on this matter. In some circumstances, your health insurance carrier will provide the coverage. Again, we will be able to assist you in determining this.

PA: In Pennsylvania, medical bills go first to your auto insurance carrier. They will pay all bills up to the amount of your policy’s medical coverage (generally $5,000 up to $100,000, with even more available if you choose). When your medical coverage through your auto insurance is exhausted, bills are sent to your health insurance carrier. If your health insurance is with an HMO, it is wise to look for the highest medical coverage you can afford on your auto policy.

The difficulties encountered with HMO payments are only enhanced when dealing with an auto injury caused medical claim. While the HMO may be required to pay for your auto related medical care they will seek reimbursement from you when you receive your recovery from the party who injured you.

What should I do or say if the other guy’s auto insurance contacts me?
The short answer to this is…nothing. Refer him/her to your lawyer, and let your lawyer know that you have been contacted and who it was that contacted you. Insurance companies have been severely reprimanded for unfair practices having to do with these types of contacts. Do not become a victim of an insurance company’s “bad faith” practice.

How do I know if I have a case against the other guy?
This can only be answered by a competent attorney. There should be no charge for discussing a potential Personal Injury case with an attorney.

If I do sue, how long will it take to collect on my damages? How much will I get?
Hard question to answer in a general way. Each case is different and the length of time and eventual payout depends upon the nature and complexity of your case. Some will take only a few months to resolve, others may take several years. How much you will eventually receive on your case also depends on the nature of your injuries and the overall impact they end up having upon your life. Another factor is how competent your attorney is. A good attorney will maximize and “work” the case to achieve the best possible results for you. This may take a little more time and effort on both you and your attorney’s part, but the results are usually worth it. When choosing an attorney for your case, look for someone who has particular skill and experience in personal injury litigation (rather than your estate planning lawyer, for instance). A Certified Civil Trial Attorney is designated as such by the Supreme Court of the state in which he/she practices as able to demonstrate sufficient levels of experience, education, knowledge and skill in civil trial practice and is a good criterion to look for when choosing a lawyer to handle your case.

If there is damage to my car, who pays and how much? How do I get a car in the meantime and who pays for it?
Property damage is almost always paid for by either your or the other party’s insurance company depending on who is at fault. If your insurance pays for it, you will have to pay the deductible, however, if the other party’s insurance company pays, they will pay the entire cost of repairs/replacement and reimburse your insurance company for any payments they have already made on the repairs and you for any amount of deductible that you may have already paid. As to a rental car, whether or not your insurance company pays for it depends upon your insurance policy benefits. If the other party is at fault, however, the cost of a rental car is a legitimate claim added to your claim for damages, however, it may take a while to get reimbursed and you or your insurance company will have to pay for the rental car initially. Speak to your lawyer for more information about reimbursement for these expenses.

If I sue, how do I pay my lawyer?
Injury cases are almost always taken by lawyers on a “contingency” basis. This means that nothing is paid to the attorney until, and usually, unless there is a monetary recovery for damages. At that point a percentage of the recovery is given to the attorney, the amount of which is set by the contract between you and your attorney. Some states, such as New Jersey limit those percentages that an attorney can charge. The costs involved in the process of bringing the case to either trial or settlement are usually fronted by the offices of Kamensky - Cohen & Associates and are deducted from the recovery at the time of settlement before the dispersing of monies is made. That means, in effect, both you and the attorney share the costs of the case at Kamensky - Cohen & Associates. Some law firms deduct all the costs of the case from your share of the recovery. Costs are for services that your attorney’s office must pay besides our fees such as court fees, doctors’ reports and testimony, document production from outside agencies/offices, etc. We will explain all of these things to you at your first meeting and should present you with a “Fee Agreement” outlining all of these issues and be able to answer any questions you may have. Bottom line: there are no fees or costs to you until there is a settlement and then a set legal percentage of the recovery, after costs, is paid to your attorney.

Is there a limit to how long after an accident occurs that I can still sue for damages?
Yes, and although a general rule in New Jersey and Pennsylvania is two years from the date of the accident, it can vary with the circumstances of the case. For instance, a minor involved in an accident has two (2) years from the date of his/her 18th birthday to sue regardless of how long ago the accident occurred. It is important to consult with an attorney regarding this question as these time periods vary from state to state and can also vary due to the nature of the claim.

What if I’m injured in an accident in which I’m a passenger, who do I sue for damages? Who pays for my medical treatment?
The answer to these questions vary with the circumstances of the case. As an injured passenger in a car that is involved in an accident, you will probably sue whoever is responsible for the accident, but remember, it is the person’s auto insurance you are suing that pays the claim in most cases! The driver responsible for the accident may even be your spouse, but a suit against your spouse’s insurance company (probably the same as your own insurance company) may be necessary to protect you and your health. If the responsibility for the accident is shared by both drivers and you are injured, both will be named in a suit, the percentage of responsibility determined by the two respective insurance companies during the settlement negotiation or at the time of a trial. The answer to who pays for your medical treatment is also complicated. If you or anyone in your household owns a car and has insurance coverage, that insurance company will probably pay your medical costs. If not, the insurance company of one of the parties involved in the accident will pay your medical costs. In all cases, these issues are best handled by Kamensky - Cohen & Associates to insure that your rights are protected and that you receive the benefits to which you are entitled.

What if I’m involved in an auto accident with someone who has no auto insurance or has very minimal coverage…not enough to cover my damages?
A very important question, especially in New Jersey where recent legislation has made available a very minimal policy which offers very little to no protection in the event of an accident. It is very important that the auto insurance policy you choose to cover yourself and your family have adequate Uninsured/Underinsured Motorist coverages. It is these coverages that compensate for any lack of insurance policy benefits of others. No matter how serious your injuries in an accident are, you will have little luck in recovering any amount more than available insurance coverages…either the other party’s, or your’s. Since you cannot count on being involved in an accident with someone with adequate insurance coverage, make sure that your own UM/UIM coverages are at the highest level you can afford. Talk to your insurance agent and review your policy, or better yet, call us at Kamensky - Cohen & Associates to review your insurance coverages with you. If the accident has already happened and the guy who has hit you has no insurance and your Uninsured/Under Insured coverage is for $15,000, your total recovery will be $15,000 or less depending on how severe your injuries are. Your recovery amount cannot be any more than the amount of your own auto insurance policy’s Uninsured/Under Insured benefits if the responsible party has no insurance.

If the other driver has a $15,000 policy and your injuries/damages are determined as being “valued” at $50,000, how much of that $50,000 you actually realize will also be determined by your Uninsured/Underinsured Benefits. If your benefits are for $100,000, the other party’s insurance company will pay his $15,000 and your own insurance will pay you the balance, or $35,000. If your UM/UIM coverage is only $15,000, you will not recover anymore than the $15,000 paid by the other party’s policy regardless of how serious your injuries are or what impact they have upon you economically and/or your quality of life.

Also, please note that if you are driving without auto insurance, you cannot sue for damages even if the other guy is at fault and there are no medical benefits available to you through any auto insurance policy.

Contact Kamensky - Cohen & Associates for more assistance in your legal situation. Visit www.kc-law.net for more information.

We are publishing a new article from one of the many that can be found at New-Jersey-Lawyers.com.

Use A Durable Power of Attorney To Avoid Problems
By Michael B. Mangini, J.D., C.A.P.
www.newjerseyestatelaw.com

Published by www.new-jersey-lawyers.com

Although it does happen, it is a rare event when I suggest that a client not sign a Durable Power of Attorney (DPOA), a document that creates a legal, enforceable relationship between the person who signs it (known as the “principal”) and the person who acts for the principal (known as the “agent,” “attorney-in-fact,” or “personal representative”). It is important to note that a DPOA is freely revocable at any time before you become incapacitated. After that, a judge who finds cause may revoke the authority granted in the DPOA.

When you, as principal, sign a Durable Power of Attorney you authorize your agent to manage your finances and property in your best interests. The agent owes a fiduciary duty to you and your heirs to act prudently under all the circumstances for you. An agent who engages in self-dealing and who raises his own interests above your interests or the interests of your other family members may be subject to civil and criminal penalties.

A well-drafted DPOA tends to avoid the need for a person to ask a court to declare you incompetent and for an order of Guardianship. Such a proceeding wastes time and money that can be better used for your benefit.

There are a variety of cases in which a DPOA may be necessary. Consider these examples. (1) If you and your spouse own any real property together you probably own it as tenants by the entirety. If so, neither of you may sell, mortgage or otherwise affect legal title without the consent of the other. If one of you becomes incapacitated and the other needs to sell the property or refinance, the healthy spouse will have to seek an order of guardianship from the court before conducting the transaction. (2) Some individuals create a joint bank account in place of signing a DPOA; this can cause more problems than it avoids.

In many situations lifetime gifts represent a valuable asset-protection and estate-planning technique. The existence of a valid, well-drafted DPOA that includes an appropriate authority to make gifts may facilitate the implementation of the plan. The law in New Jersey is clear: an agent under a DPOA that does not specifically grant the authority to make gifts legally may not make gifts.

The most important qualifications for an agent are trustworthiness and an understanding of the agent’s fiduciary duty. Too often the agent misuses his “power” to the detriment of the principal and the principal’s family. The agent’s inability or refusal to act responsibly may result in acrimony among the family members along with prolonged, emotional and expensive court proceedings. Competent professional advice can go a long way to avoiding very serious problems.

Contact Michael Mangini for more assistance in your legal situation. Visit www.newjerseyestatelaw.com for more information.

We are pleased to announce the opening of our New Jersey Lawyers Blog. We first launched our website a New Jersey Lawyers Directory in June of 2001 as a place where consumers could quickly and easily find a New Jersey Lawyer and to give attorneys in New Jersey a cost effective way of advertising their practice and the ability to determine how they want to appear in the search results. If you are looking for a NJ lawyer we invite you to visit our directory and search by type of law, by county of by lawyers name. You may also want to use our ask-a-lawyer feature, which sends your legal question to participating NJ Law Firms. You may also want to check out our legal document area, which is a collection of legal articles written by local New Jersey Attorneys about NJ Law. In future posts we plan on publishing current News about our directory in addition to NJ Law articles as well as featuring New Jersey attorneys.