Michael Resnick | Attorney at Law | Articles http://www.mlrlawyer.com/article Mon, 25 Feb 2013 16:38:27 +0000 http://wordpress.org/?v=2.8.1 en hourly 1 New Jersey Sale of Marital Residence http://www.mlrlawyer.com/article/2013/02/new-jersey-sale-of-marital-residence/ http://www.mlrlawyer.com/article/2013/02/new-jersey-sale-of-marital-residence/#comments Mon, 25 Feb 2013 16:38:27 +0000 mresnick http://www.mlrlawyer.com/article/?p=578 This case is a good illustration of the court’s inherent equitable power conferring on the former wife a limited power of attorney against her former husband who was non-cooperative signing the listing agreement for the sale of the former marital home. Courboin v. Courboin, Jr., New Jersey App. Div., February 21, 2013

]]> http://www.mlrlawyer.com/article/2013/02/new-jersey-sale-of-marital-residence/feed/ 0 Real Estate Debt Forgiveness Tax http://www.mlrlawyer.com/article/2013/02/real-estate-debt-forgiveness-tax/ http://www.mlrlawyer.com/article/2013/02/real-estate-debt-forgiveness-tax/#comments Fri, 22 Feb 2013 21:21:05 +0000 mresnick http://www.mlrlawyer.com/article/?p=576 As part of the fiscal cliff negotiations, the Mortgage Forgiveness Debt Relief Act (HR3648) was given a one year extension through 2013. Homeowners who sell their primary residence in a short sale will not have the added burden of having to pay taxes on the uncollected debt. This extension is critical to underwater homeowners, who owe more for their home than it is worth and seek to avoid foreclosure.   Eligible homeowners still report the canceled debt as income, but they also are granted exclusion to write off the income. The write off only applies to forgiven debt on primary residences and canceled debt up to $2,000,000. If you acquired a home equity line of credit (HELOC) after closing that was not used to improve the property, then forgiveness of that loan may be subject to tax.

]]> http://www.mlrlawyer.com/article/2013/02/real-estate-debt-forgiveness-tax/feed/ 0 New Jersey Credit for Child Support Overpayment http://www.mlrlawyer.com/article/2013/02/new-jersey-credit-for-child-support-overpayment/ http://www.mlrlawyer.com/article/2013/02/new-jersey-credit-for-child-support-overpayment/#comments Fri, 22 Feb 2013 13:27:58 +0000 mresnick http://www.mlrlawyer.com/article/?p=574 In this post judgment proceeding the former husband overpaid the former wife about $35,000.00 child support.  The trial court agreed and entered judgment in favor of the former husband.  The former wife argued that given the amount of time that passed, around 7 years, the former husband was estopped from seeking credit and laches applied.   The trial court failed to address the wife’s argument in it’s decision or order.  The Appellate Division reversed the ruling and remanded to the trial court to make a determination on the equitable arguments advanced by the former wife.  Mayer v. Mayer, New Jersey App. Div., January 25, 2013

]]> http://www.mlrlawyer.com/article/2013/02/new-jersey-credit-for-child-support-overpayment/feed/ 0 New Jersey Custody Removal and Evidentiary Hearing http://www.mlrlawyer.com/article/2013/02/new-jersey-custody-removal-and-evidentiary-hearing/ http://www.mlrlawyer.com/article/2013/02/new-jersey-custody-removal-and-evidentiary-hearing/#comments Tue, 19 Feb 2013 17:35:28 +0000 mresnick http://www.mlrlawyer.com/article/?p=572 The Appellate Division reversed the trial court’s denial to allow the mother to move with the parties’ child from New Jersey to North Dakota.   The panel reasoned that in denying relief the trial judge placed far too much weight on the impact removal would have on the father’s rights and interests.  Indeed, he should not have assigned weight to any of the circumstances contained in the parties’ competing certifications because the facts were largely disputed; the judge should have recognized the mother had satisfied the burden of presenting a prima facie case and conducted an evidentiary. Loos v. Brown, New Jersey App. Div., Februiary 8, 2013

]]> http://www.mlrlawyer.com/article/2013/02/new-jersey-custody-removal-and-evidentiary-hearing/feed/ 0 New Jersey One Bite at the Paternity Test Apple http://www.mlrlawyer.com/article/2013/02/new-jersey-one-bite-at-the-paternity-test-apple/ http://www.mlrlawyer.com/article/2013/02/new-jersey-one-bite-at-the-paternity-test-apple/#comments Tue, 19 Feb 2013 17:28:44 +0000 mresnick http://www.mlrlawyer.com/article/?p=570 The first paternity test demonstrated defendant is not the child’s biological father. The mother sought a second test under the statute, N.J.S.A. 9:17-41(h) that provides for additional testing if the initial test results are contested.  In this instance the trial court denied the mother’s request and affirmed by the Appellate Division.  R.S. v. P.H., New Jersey App. Div., February 13, 2013

]]> http://www.mlrlawyer.com/article/2013/02/new-jersey-one-bite-at-the-paternity-test-apple/feed/ 0 New Jersey Domestic Violence Minors and Testimony http://www.mlrlawyer.com/article/2013/02/new-jersey-domestic-violence-minors-and-testimony/ http://www.mlrlawyer.com/article/2013/02/new-jersey-domestic-violence-minors-and-testimony/#comments Wed, 13 Feb 2013 14:13:46 +0000 mresnick http://www.mlrlawyer.com/article/?p=567 On July 30, 2012 a bill was introduced in the New Jersey State Assembly that would permit a domestic violence victim who is a minor (16 years old or younger) to testify against an alleged abuser via closed circuit television in prosecutions for a crime or offense involving domestic violence. Under the bill, the court may, following a hearing order the taking of the testimony out of the presence of the jury, defendant, or spectators. Closed circuit testimony would be allowed if the court determines by clear and convincing evidence that there is a substantial likelihood that the witness would suffer severe emotional or mental distress if required to testify in open court. New Jersey Assembly Bill A-3219

]]> http://www.mlrlawyer.com/article/2013/02/new-jersey-domestic-violence-minors-and-testimony/feed/ 0 New Jersey Palimony and Statute of Frauds http://www.mlrlawyer.com/article/2013/02/new-jersey-palimony-and-statute-of-frauds/ http://www.mlrlawyer.com/article/2013/02/new-jersey-palimony-and-statute-of-frauds/#comments Thu, 07 Feb 2013 13:19:04 +0000 mresnick http://www.mlrlawyer.com/article/?p=565 In what may be interpreted as another nail in the palimony claim coffin, the Appellate Division determined that in 2010 the legislature amended the Statute of Frauds to provide that a palimony claim [a promise by one unmarried party to provide support to another] must be in writing, signed by the party sought to be charged. The decision clarifies statute’s bar applies, no matter when the alleged promise to support was undertaken, if the claim was filed after January 18, 2010, the effective date of the enactment. Maeker v. Ross, N.J. Super. (App. Div. 2013); February 4, 2013

]]> http://www.mlrlawyer.com/article/2013/02/new-jersey-palimony-and-statute-of-frauds/feed/ 0 New Jersey Custody and Removal http://www.mlrlawyer.com/article/2013/02/new-jersey-custody-and-removal/ http://www.mlrlawyer.com/article/2013/02/new-jersey-custody-and-removal/#comments Thu, 07 Feb 2013 13:15:32 +0000 mresnick http://www.mlrlawyer.com/article/?p=563 In another well written and reasoned decision, Judge Jones (Superior Court, Ocean County, Family Part) determined a divorced  parent need not have a job lined up in order to move with her child out of state : “The most practical and relevant inquiry is not whether the moving parent has a guaranteed job, but rather whether she has a reasonable plan for providing the child in her care with an economically stable home in the new state.” Benjamin v. Benjamin, New Jersey Ch. Div., February 4, 2013

]]> http://www.mlrlawyer.com/article/2013/02/new-jersey-custody-and-removal/feed/ 0 New Jersey Dissipation of Marital Assets and Equitable Distribution http://www.mlrlawyer.com/article/2013/02/new-jersey-dissipation-of-marital-assets-and-equitable-distribution/ http://www.mlrlawyer.com/article/2013/02/new-jersey-dissipation-of-marital-assets-and-equitable-distribution/#comments Wed, 06 Feb 2013 17:01:12 +0000 mresnick http://www.mlrlawyer.com/article/?p=560

This case provides a good overview of the power of the trial court to structure equitable distribution in favor of an aggrieved party wherein it is determined a spouse dissipates, diverts and/or wrongfully transfers assets out of the marital enterprise.  IN this instance the trial court determined the husband drew down $200,000 from the parties home equity line of credit without the wife’s knowledge or consent, invested it, and lost the entire amount. In making an equitable distribution of marital property, the Appellate Division reaffirmed the court must consider, among other things, “[t]he contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property.” N.J.S.A. 2A:34-23.1(i).

Sklar, f/k/a Wolfson v. Wolfson , New Jersey App. Div., January 29, 2013

]]> http://www.mlrlawyer.com/article/2013/02/new-jersey-dissipation-of-marital-assets-and-equitable-distribution/feed/ 0 New Jersey Change of Custody Interview Child http://www.mlrlawyer.com/article/2013/01/new-jersey-change-of-custody-interview-child/ http://www.mlrlawyer.com/article/2013/01/new-jersey-change-of-custody-interview-child/#comments Wed, 30 Jan 2013 20:28:39 +0000 mresnick http://www.mlrlawyer.com/article/?p=558 In this post judgment proceeding the Appellate Division reiterated the two prong approach employed when a party seeks a change of custody.  The party seeking a modification “must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[]. . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts.”  M.I. v. B.I., New Jersey App. Div., January 23, 2013

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