TERMINATION OF CHILD SUPPORT OBLIGATIONS - INTERIM PROTOCOL

TERMINATION OF CHILD SUPPORT OBLIGATIONS - INTERIM PROTOCOL

NOTICE TO THE BAR

On January 19, 2016, Governor Christie signed S-1046/A-2721 into law. This act,

codified at N.J.S.A. 2A:17-56.67 et seq., establishes the age or other conditions under

which a child support and/or medical support obligation will end. The effective date of the

law is February 1, 2017 and applies to all child support orders.

The statute authorizes the Supreme Court to adopt Rules of Court appropriate or

necessary to effectuate the purposes of the act. The attached Interim Protocol for

Termination of Child Support Obligations is being issued as a provisional measure to

implement the new law until such time the Supreme Court issues court rules that clarify

the rights and responsibilities of parties seeking termination or continuation of court

ordered child support.

Questions regarding this notice may be directed to Elizabeth Domingo, Assistant

Director, Probation Services Division, by email at Liz.Domingo@njcourts.gov or by

telephone at (609) 815-3810 ext. 16311.

Glenn A. Grant, J.A.D.

Acting Administrative Director of the Courts

Dated: February 7, 2017

INTERIM PROTOCOL FOR TERMINATION OF CHILD

SUPPORT OBLIGATIONS (1/31/17)

The following interim protocol establishes the procedures for the termination or

continuation of child support obligations, effective February 1, 2017 and until such time

that the Supreme Court issues court rules.

(a) Duration of Support. In accordance with N.J.S.A. 2A:17-56.67 et seq., unless

otherwise provided in a court order or judgment, the obligation to pay current child

support, including health care coverage, shall terminate by operation of law when the

child being supported:

(1) Dies;

(2) Marries;

(3) Enters the military service; or

(4) Reaches 19 years of age, except as otherwise provided under law.

In no case shall a child support obligation extend beyond the date the child reaches the

age of 23.

(b) Termination of Obligation in Cases Administered by the Probation Division.

(1) Notice of Proposed Termination. Where no other emancipation date or termination

has been ordered by the court, the Probation Division shall send the obliger and

obligee notice of proposed termination of child support prior to the child reaching

19 years of age in accordance with N.J.S.A. 2A:17-56.67 et seq. Notices shall

contain the proposed termination date and if applicable, information for the obligee

to submit a written request for continuation of support beyond the date the child

reaches 19 years of age.

(2) Written Request for Continuation. In response to the notice prescribed in section

(1), the obligee may submit to the court, a written request for continuation, on a

form and within timeframes promulgated by the Administrative Office of the Courts,

with supporting documentation and a future termination date, seeking the

continuation of support beyond the child's 19th birthday if the child being supported:

(A) Is still enrolled in high school or other secondary educational program;

(B) Is enrolled full-time in a post-secondary educational program; or

(C) Has a physical or mental disability as determined by a federal or state

agency that existed prior to the child reaching the age of 19 and requires

continued support.

Interim Protocol for Termination of Child Support Obligations (1/31/17)

Page 2 of 4

(3) Review of Written Request for Continuation. The Probation Division shall review

the obligee's written request and documentation and shall make recommendation

to the court as to whether the support obligation will continue beyond the child's

19th birthday. If sufficient proof has been provided, the court shall issue an order

to both parties establishing the future termination date. If sufficient proof has not

been provided, the court shall issue an order to both parties terminating the current

support obligation as of the date of the child's 19th birthday. No additional notice

shall be provided to the parties.

(4) No Response to Notice of Proposed Tennination. If the Probation Division receives

no response to the notices of proposed termination of child support, the court shall

issue an order to both parties establishing the termination of obligation as of the

child's 19th birthday. No additional notice shall be provided to the parties.

(5) Motion or Application. If either party disagrees with the termination or continuation

order entered, the party may file a motion in a dissolution matter or an application

in a non-dissolution or domestic violence matter requesting either termination or

continuation of the child support obligation, as applicable.

(6) Arrears Remain Due and Enforceable. Any arrearages accrued prior to the date

of termination shall remain due and enforceable by the Probation Division as

appropriate until they are paid in full or the court terminates the Probation Division's

supervision of the support order. Upon termination of an obligation to pay current

support, the amount to be paid to satisfy the arrearage shall be the sum of the

obligation amount in effect immediately prior to the termination plus any arrears

repayment amount if there are no other children remaining on the support order.

(7) Final Notice of Tennination. Where an emancipation date or termination date has

been ordered by the court, the Probation Division shall send the obliger and

obligee notice of termination of child support prior to the child reaching the court

ordered emancipation date or future termination date in accordance with N.J.S.A.

2A:17-56.67 et seq. The notice shall contain the date on which child support shall

terminate and information regarding the adjustments that shall be made to the

obligation, as applicable.

(8) Unallocated Orders. Whenever there is an unallocated child support order for two

or more children and the obligation to pay support for one or more of the children

is terminated pursuant to N.J.S.A. 2A:17-56.67 et seq., the amount to be paid prior

to the termination shall remain in effect for the other children. Either party may file

a motion in a dissolution matter or an application in a non-dissolution or domestic

violence matter to adjust the support amount.

(9) Allocated Orders. Whenever there is an allocated child support order for two or

more children and the obligation to pay support for one or more of the children is

terminated pursuant to N.J.S.A. 2A:17-56.67 et seq., the amount to be paid shall

Interim Protocol for Termination of Child Support Obligations (1/31/17)

Page 3 of 4

be adjusted to reflect the reduction of the terminated obligation(s) for the other

children. Either party may file a motion in a dissolution matter or an application in

a non-dissolution or domestic violence matter to adjust the support amount.

(10) Venue for Filings. Motions in dissolution matters, or applications in nondissolution

or domestic violence matters, seeking the termination or continuation

of child support for a child under the age of 23 must be filed in the county of venue.

(c) Termination or Continuation of Child Support Obligations Not Administered by

the Probation Division. Where an obliger has been ordered to pay child support directly

to the obligee, the child support obligation shall terminate by operation of law in

accordance with N.J.S.A. 2A: 17-56.67 et seq., unless otherwise provided in a court order

or judgment. Notwithstanding any other provision of law, a party may file a motion in a

dissolution matter or an application in a non-dissolution or domestic violence matter

requesting termination or continuation of a child support obligation at any time, for good

cause. The Probation Division shall not be required to provide any noticing, monitoring

or enforcement services in any case where the obliger has been ordered to pay child

support directly to the obligee.

(d) Other Reasons for Termination of Child Support Obligations. A party to a child

support order, at any time, may file a motion in a dissolution matter or an application in a

non-dissolution or domestic violence matter requesting termination of a child support

obligation based upon good cause. Any arrearages accrued prior to the date of

termination shall remain due and enforceable by the obligee or the Probation Division, as

appropriate.

(e) Emancipation. Except as otherwise provided by this interim protocol, and in

accordance with N.J.S.A. 2A:34-23, N.J.S.A. 2A:17-56.67 et seq., and related case law,

a party to a child support order, at any time, may file a motion in a dissolution matter or

an application in a non-dissolution or domestic violence matter requesting emancipation

of a child in the county of venue. Court-ordered emancipation shall terminate the

obligation of an obliger to pay current child support, as of the effective date set forth in

the order of emancipation. Any arrearages accrued prior to the date of emancipation shall

remain due and enforceable by the obligee or the Probation Division, as appropriate.

(f) Support for Children in Out-of-Home Placement through the Division of Child

Protection and Permanency (DCPP). A child support obligation payable to the DCPP

for children in an out-of-home placement shall not be terminated by operation of law upon

the child turning 19 years of age. A child support obligation payable to DCPP shall

terminate upon notification that the child is no longer in placement or upon the child

turning 23 years of age, whichever first occurs.

(g) Financial Maintenance for a Child Beyond 23 Years of Age. Pursuant to N.J.S.A.

2A:34-23, N.J.S.A. 2A:17-56.67 et seq., and related case law:

Interim Protocol for Termination of Child Support Obligations (1/31/17)

Page 4 of 4

(1) A child beyond 23 years of age may apply to the court for an order requiring

the payment of financial maintenance or reimbursement from a parent;

(2) A parent, or child over the age of 23, may apply to the court for an order

converting a child support obligation to another form of financial maintenance in

exceptional circumstances, including but not limited to the child's physical or

mental disability that existed prior to the date the child reached the age of 23;

(3) Any arrearages accrued prior to the date of termination or conversion shall

remain due and enforceable by the obligee or Probation Division, as appropriate;

(4) Court-ordered financial maintenance or reimbursement from a parent shall not

be payable or enforceable as child support. The Probation Division shall not be

required to provide any establishment, monitoring or enforcement of such

maintenance or reimbursement order;

(5) Complaints or applications for financial maintenance for a child, age 23 years

or older, who has been or will be adjudicated incapacitated, shall be heard in the

Probate Part. County Surrogate staff shall process complaints or applications for

financial maintenance in accordance with applicable provisions of R. 4:86; and,

(6) Complaints or applications for financial maintenance, reimbursement, or

conversion of an existing support order, for the financial support of an adult child

over the age of 23, where there has not been or will not be an adjudication of the

adult child's incapacitation, must be filed and heard in the Family Part. Court staff

shall process the complaint for financial maintenance, reimbursement, or

conversion of an existing support order using the Family Automated Case Tracking

System (FACTS). These filings are considered non-lV-D actions and the hearings

shall not be scheduled before child support hearing officers. Financial

maintenance obligations may not be added to NJKiDS, the automated child

support enforcement system, as alimony cases, dependent litigant cases or in the

form of arrears payback amounts.

(h) Foreign Orders or Judgments. The provisions of N.J.S.A. 2A:17-56.67 et seq. shall

not apply to child support provisions contained in orders or judgments entered by a foreign

jurisdiction and registered in New Jersey for modification or enforcement pursuant to the

"Uniform Interstate Family Support Act", N.J.S.A. 2A:4-30.124 et seq.

source http://www.judiciary.state.nj.us/notices/2017/n170208k.pdf

TRO reverses where no direct harassment NB v JAB

TRO reverses where no direct harassment NB v JAB

 N.B.,

Plaintiff-Respondent,

v.

J.A.B.,¹

Defendant-Appellant.

_______________________________

January 10, 2017

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0 

Before Judges Nugent and Higbee.²

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1753-14.

Defendant J.B. appeals from a September 17, 2014 final restraining order (FRO) entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The domestic violence complaint alleged harassment and terroristic threats, and was brought by plaintiff N.B., defendant's former girlfriend, after defendant allegedly made threatening remarks about plaintiff during a group therapy session with a social worker. The social worker reported defendant's comments to the police, who relayed them to plaintiff. Defendant had previously posted on social media sites purportedly threatening plaintiff. 

Defendant argues his communications with the social worker were privileged and the Family Part judge erred by allowing the social worker to testify about them at the FRO hearing. Defendant also argues the Family Part judge should not have considered his social media posts as evidence of prior domestic violence, as they had been the subject of a previous domestic violence proceeding in which an FRO was not granted. 

We have considered these arguments in light of the applicable legal standards and conclude – regardless of the admissibility of the social worker's testimony – it was reversible error for the Family Part judge to find plaintiff had proven either of the offenses underlying the complaint. Accordingly, we reverse the decision of the Family Part judge and vacate the FRO.

We discern the following facts from the record. Plaintiff and defendant's relationship was contentious even before the events underlying this case occurred. By the time their child was born in 2013, the pair had already separated. Plaintiff filed for child support and defendant cross-moved for parenting time. Before these issues were settled by the court, plaintiff filed an order to show cause alleging defendant had been using marijuana and seeking suspension of his parenting time. The court ordered defendant to undergo a substance abuse evaluation.

On or about March 19, 2014, plaintiff filed a domestic violence complaint and temporary restraining order (TRO) against defendant following a physical altercation that occurred the previous day. The filing also indicated defendant made a threatening post on his Instagram account, which plaintiff believed to be about her. Specifically, at issue was text reading: "I never wanted to body³ somebody as bad as I want to body you. Just thinking about it makes my dick hard. Fuckin issue-providing solution." Harassment, N.J.S.A. 2C:33-4, was the offense underlying the domestic violence complaint.

On April 30, 2014, the court received defendant's substance abuse evaluation and visitation risk assessment. Defendant tested positive for marijuana and the court ordered he undergo substance abuse treatment and anger management therapy at the Center for Network Therapy and Substance Abuse in Middlesex. The court also determined it would hear the FRO and outstanding custody and parenting time issues together on June 3, 2014.

On June 3, 2014, the court held an FRO hearing during which both parties testified about the physical altercation and defendant's social media post. The facts relating to, and the judge's findings about, the March 18 incident are not pertinent to this appeal. With regard to defendant's social media post, the judge found that defendant's account was private and could not be accessed by the public or by plaintiff. The post in question did not mention plaintiff by name, nor did defendant "tag" plaintiff in the photo. In fact, plaintiff only learned of the post from a friend. These facts led the judge to conclude the post was not "directed" towards plaintiff and, thus, defendant did not have the requisite intent to sustain plaintiff's harassment allegation. The judge found defendant did not commit an act of domestic violence under the PDVA, declined to grant plaintiff a FRO, and dismissed the TRO. 

Plaintiff initiated the present matter by filing a subsequent domestic violence complaint and a request for a TRO on June 19, 2014. The complaint indicates police officers informed plaintiff that defendant's therapist reported defendant made threats against plaintiff during an anger management session. Specifically, the report stated the social worker indicated that, during an angry tirade, defendant claimed he "would not mind spending ten years in jail" to make plaintiff "disappear." Fearing for plaintiff's safety, the social worker reported the remarks to the police. Harassment, N.J.S.A.2C:33-4, and terroristic threats, N.J.S.A. 2C:12-3, were the alleged acts of domestic violence.

The court heard argument for a FRO on June 26, 2014. Defendant moved to prevent the social worker from testifying pursuant to N.J.R.E. 505 and 518. The judge requested the parties brief the issue and adjourned the matter. The court heard oral argument on the issue on August 26, 2014. On September 17, 2014, the judge denied defendant's motion to prevent the social worker from testifying. Later that day, the FRO hearing was heard before a different Family Part judge.

The social worker testified about counseling defendant for substance abuse in a group therapy session. She explained part of the therapy involved participants taking turns speaking in an effort to "process their feelings for the day." During this session, defendant expressed frustration over plaintiff preventing him from seeing his daughter on his birthday. Contrary to what the police initially reported to plaintiff, defendant actually said the child's mother will "lose-lose" whereas he will only "lose ten years." The social worker continued:

At this point, I attempted to kind of explore further to . . . get [] more specific details as to what he meant but . . . I didn't get that. And then I ask[ed] if he had any suicidal or homicidal ideations, and he said pretty much I know what you're trying to do and the answer is no.

On cross-examination, the social worker testified she was not able to decipher precisely what defendant meant by "lose-lose" or how he would "lose ten years." She described defendant's words as "sound[ing] like a threat" and contacted the police to "err on the side of safety."

In his oral decision, the Family Part judge summarized the elements of harassment and terroristic threats before addressing plaintiff's allegations together. Citing State v. Dispoto, 189 N.J. 108 (2007), the judge explained that although defendant's remarks were not communicated directly to plaintiff, this did not automatically preclude a finding of harassment or terroristic threats. The judge explained it is "sufficient that the threat be made under circumstances which carried a serious promise of death." The judge also referenced Cesare v. Cesare, 154 N.J. 394 (1998), to explain that concluding a particular remark amounts to a terroristic threat involves consideration under a "reasonable person standard" viewed in light of any history of abuse between the parties. 

The judge noted he found the social worker's testimony credible, and pointed to the various social media posts as "history" that would lead plaintiff to find the threat credible. The judge noted that although the social media posts had not previously been deemed acts of domestic violence, "this is a new day, and these are new allegations, and everything should be considered." He "[found] the posts . . . to be extremely disturbing enough . . . to make any target concerned for their own physical safety." These considerations led the judge to conclude plaintiff was in immediate danger and in need of the protections of a FRO.

We are cognizant of the fact that our review of a trial court's findings of fact is deferential.  Cesare, supra, 154 N.J. at 413 (1998). Nonetheless, we exercise broad review in considering "the trial judge's evaluation of the facts and the implications to be drawn therefrom."  N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re J.T., 269 N.J. Super. 172, 189 (App. Div. 1993)). We are required to reverse where "the court ignores applicable standards." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). 

On appeal, defendant first argues it was in error for the Family Part judge to hear testimony from the social worker, as her communications with defendant were protected by N.J.R.E. 505 and 518. We need not reach this argument because even with the social worker's testimony, plaintiff failed to present sufficient evidence of harassment and terroristic threats to sustain her burden of proof.

We begin with a brief overview of domestic violence proceedings. The PDVA allows a plaintiff to file a "complaint alleging the commission of an act of domestic violence and to seek emergency ex parte relief." Cesare, supra, 154 N.J. at 400 (citing N.J.S.A. 2C:25-28). Shortly after, a hearing is held to allow a plaintiff to show an act of domestic violence was committed and further relief is needed; one such remedy is entry of an FRO.  Cesare, supra, 154 N.J. at 400. The PDVA provides, in pertinent part:

"Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor:

. . . .

(3) Terroristic threats [N.J.S.A.] 2C:12-3

. . . .

(13) Harassment [N.J.S.A.] 2C:33-4.

[N.J.S.A. 2C:25-19(a)].

Although the PDVA "incorporates a variety of criminal statutes into its civil and criminal framework," Cesare, supra, 154 N.J. at 401, it does not "create a new class of offenses or interdict acts which otherwise were not addressed by the criminal law." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995).

The court's inquiry is two-fold.  Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts . . . has occurred." Ibid. This requires more than simply finding a plaintiff has proven all elements of the underlying criminal statute.  See id. at 125-26. To this end, the PDVA provides an additional six factors for the court to consider, including "the previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse."  Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999). "Although a court is not obligated to finda past history of abuse before determining . . . domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis."  Cesare, supra, 154 N.J. at 402. When terroristic threats and harassment are the allegations underlying a domestic violence complaint, "[t]he need to consider a plaintiff's history of abuse . . . is consistent with the requirements of the . . . crimes at issue."  Ibid. at 402-05. 

Once a predicate act of domestic violence has been found by the court, the court engages in its second inquiry: "whether the court should enter a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super.at 126. The factors from N.J.S.A. 2C:25-29(a)(1) also guide this analysis.

We conclude the trial judge erred in finding plaintiff had proven, by a preponderance of the evidence, defendant had committed harassment or made terroristic threats. A person harasses another if, "with purpose to harass another, he . . . [m]akes, or causes to be made, a communication . . . [in a] manner likely to cause annoyance or alarm."  N.J.S.A. 2C:33-4(a) (emphasis added). A communication delivered to a victim through a third-party can constitute harassment when the defendant intends to use the third-party "as an instrument of harassment."  State v. Castagna, 387 N.J. Super. 598, 605 (App. Div.), certif. denied, 188 N.J. 577 (2006). 

The remarks at issue were not made directly to plaintiff, thus, plaintiff must show defendant intended for his words to reach plaintiff by some other means.  Ibid. Plaintiff presented no evidence to this end. Furthermore, we note the circumstances of the instant case strongly suggest defendant's words were made with the expectation of confidentiality. As the social worker testified, the purpose of the session was for participants to process their thoughts in a safe environment. Absent any evidence of defendant's intention to harass, plaintiff failed to prove a key element of the offense. The trial judge was in error to find otherwise.

Plaintiff's allegation that defendant made a terroristic threat is also meritless. "A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another[.]"  N.J.S.A. 2C:12-3(a)(emphasis added). 

We are not convinced plaintiff has even established defendant threatened to commit a crime of violence. Defendant's remarks, that plaintiff would "lose-lose" whereas he would only "lose ten years" are ambiguous. The social worker testified she was not sure what defendant meant by this, and that defendant denied having homicidal intentions. She reported the remarks "out of an abundance of caution." In addition, plaintiff failed to make any showing that defendant's remarks during group therapy were made with the intent to terrorize her, as there is no evidence defendant intended for the statement to reach plaintiff. We therefore conclude the Family Part judge's finding of a terroristic threat was error. 

Lastly, defendant argues it was improper for the court to consider defendant's social media posts as evidence of a history of domestic violence because the posts had already been considered during the hearing on plaintiff's first application and were determined not to constitute domestic violence. In light of our conclusion that the judge erred in finding defendant's conduct constituted domestic violence, we need not reach the issue of whether the court's consideration of these social media posts, as part of either Silver inquiry, was error. Evidence of prior acts, like the posts at issue, can become relevant in determining if an act of domestic violence has occurred and whether a FRO is warranted. As we conclude no qualifying predicate act occurred, even in light of defendant's prior posts, we need not consider the question of their admissibility. We reverse and vacate the finding of domestic violence and the issuance of the FRO.

Reversed.

1^ Appellant is designated as J.A.B. in the Family Part Orders, but designated as J.B. in his briefs.

2^ Hon. Carol E. Higbee participated in the panel that decided this appeal. The opinion was approved for filing prior to Judge Higbee's death on January 3, 2017.

3^ Plaintiff indicated that in this context, she believed to "body someone" was a phrase meaning to hurt or to kill a person.

Estate Planning after Divorce or Break Up.

Estate Planning after Divorce or Break Up.

         By Kenneth A. Vercammen, Esq. Author ABA’s “Wills & Estate Administration” book

          If you do not write a Will, the government has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself!

          As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In the havoc after a break up, many persons forget to have a Will done to assure assets and decisions are taken out of the hands or the ex spouse and ex spouse’s family.

         In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian upon their death. National statistics indicate that more than 50% of Americans foolishly die without leaving a Will. In the absence of a Will  or other legal arrangement to distribute property at death, the problems often arise and a Judges decides who gets custody of your children and handles your money. This process is called the law of intestacy. The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Without a Will, your family will have to pay substantial costs for accountants, attorneys, bonding companies and probate fees.

         In planning, make sure your assets go to your loved ones or favorite charity, not an "ex". Therefore, we advise our separated or divorced clients to do the following:

1)            Have an Estate Planning Law attorney prepare a Will to distribute your assets to the people you care about the most. If you already have a Will, prepare a new Will and have the old Will revoked. (Your estate planning attorney will explain this to you.) Usually a new executor is selected, who will also serve as funeral agent.

          Although in many states under law a divorce removes the ex spouse as a beneficiary, it does not remove the ex as executor or receiving assets under a bank POD or joint account. Don’t ever use with a cheap online form that often is not filled out correctly. Self prepared documents are often not witnessed right and are not admitted to probate. Have an experienced attorney prepare the estate planning documents who will do it right. I could change my car oil and repair the lawnmower, but I now prefer an experienced mechanic do that. You can also create specific bequests so nice jewelry or family heirlooms go to a selected child. Otherwise the executor can just sell them at the pawn shop. You can also direct in your Will a child be excluded from inheriting. Example- they testified against you in divorce court.

        

2)  Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old Power of Attorney revoked. This means your attorney or you should send notices to banks and your accounts to indicate the prior Power of Attorney is invalid. If you have children over age 18, have your attorney prepare a Power of Attorney for the  over 18 children so the custodial parent can still have access to their records and pay their bills if they are in an accident.

3)  Select a new beneficiary on assets you may own, such as stocks, transfer upon death brokerage accounts, bank accounts, IRA, retirement accounts, 401k, payable upon death accounts POD , and other financial assets. Make sure you see the actual change in beneficiary in writing. Don’t rely on a phone call from the company that accounts are revised. Even if a court approved divorce decree states that a beneficiary should be changed, make sure you have changed the beneficiary designations. Remember, even a new Will does not change account beneficiaries on non-probate assets.

          Change passwords on all online accounts and notify them in writing that the former spouse is not permitted excess to records.

4)  Change your beneficiary under your own life insurance, whether whole life insurance or term insurance. Again, don’t just rely on language in a divorce decree to make sure your wishes are followed. If the ex-spouse is required to obtain life insurance to pay to you or your children, you want to see proof of the insurance in writing with beneficiary designation.

5)  Contact your employer's human resources and change the beneficiary on pension, stock options, life insurance,  and other employee benefits. Note that if you are not yet divorced, your spouse may have to sign a written waiver permitting you to change beneficiaries.

6)  Keep your personal papers at a location where an ex-spouse or the child's parent can't steal or destroy them. 

7)  If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody. You don’t want your ex in-laws to have custody of your children or access to the children’s money. A new Will specifically shows a Surrogate and Probate Judge you’re your wishes are. If no Will, then a judge can only guess.

         Also set up a Trust in the Will so children and grandchildren receive funds when they are 21, 25 and 30. Preserve money for college and necessary expenses, not a windfall to buy an expensive car when they turn 18. Also don’t make the minor children beneficiary of big life insurance policies, because they automatically receive when they turn 18. Instead, you can make your estate the beneficiary of life insurance and other accounts. How many 18 year old kids would spend money wisely? Seek assistance of estate planning attorney, don’t try to do everything yourself.

         A trust also protects the beneficiary if there is a lawsuit and judgment against them.

8)  Make sure the trustee for any funds designated for your children is the "right" trustee. The former in laws may no longer be the best choice.

9) Re-title real estate, cars and other assets in joint names. Usually a new Deed will have to be prepared. If there is a mortgage, either a refinance or consent of mortgage company to remove your name from the mortgage. [Good luck with that.]

10)  In New Jersey, if you are still married and living with a spouse, under certain instances the surviving spouse has a right to "elect against the Will".      The disinherited spouse may try to elect against the Will and try to obtain one  third of the estate. Your attorney can explain how you can protect yourself and your children.     

11) Have a new Living Will / Advance Directive for health care/ medical proxy prepared to remove the ex and select a family member you trust with last medical wishes. The Living Will should contain new HIPPA language to advise doctors and hospital who should have access to medical information. You don’t want an estranged person to be able to make Medical decisions or “Pull the plug”. A divorce decree does not remove the ex-spouse on Medical Power of Attorney/ Living Will. They should have a new Living Will prepared.

Separated persons

          Some clients are not aware they can have a new Will and other estate planning documents prepared prior to a formal divorce decree. To the contrary, our office drafts Will for individuals in marital difficulty who want to protect their assets and children in the event of an unexpected, sudden death.  A personal can have a new Will and estate planning documents without telling their spouse.

          If spouses are living together, the surviving spouse in many states can Elect against the Will and obtain 1/3 of the augmented estate. See Uniform Probate Code 2-201. A married person can also confidentially revoke a Power of Attorney, Living Will, Trust etc. However, the original attorney cannot prepare new documents if the attorney also prepared documents for the other spouse. The original attorney in some states may be required to notify the other spouse. Therefore, a new, independent attorney is suggested whose only loyalty is to you.

          It is important to prepare new documents if separation has started or is inevitable since someone does not want their some of be ex to make financial and medical decisions. However, typically a spouse cannot be removed as a beneficiary under pensions, etc without that spouse’s written consent.

          You can select a funeral agent so your estranged spouse does not handle funeral arrangements.

          Also speak with your divorce attorney to inquire if you can take out 50%  of assets in a joint account and deposit in a new account payable death to adult children, not the estranged spouse.

          If you own a small business, prepare a contingency plan if you become disabled for someone to run your business.

          Second marriage

         If you decide to get remarried, have your attorney prepare a prenuptial agreement, so your children can inherit your assets.  You want your children, not new spouse, to receive your assets if you pass away. In many states, persons put their assets into Trusts for the benefit of a child. However, if the trust is revocable, Medicaid will include the trust assets as available money. In blended families, irrevocable trusts are useful because a Will can be revocable by a competent person without telling their spouse.

          If You Have No Will after someone divorces:                               

          If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get some of your assets or control assets. If you are not divorced and die without a Will, under the uniform probate code your spouse will receive 100%  of your estate if all the children are from the same relationship. State law determines who gets assets, not you.

2. If you have minor children, the County Surrogate will hold the child’s money until age 18 and it is difficult and time consuming to petition the Surrogate to release funds for payment of tuition, medical bills, clothing etc.

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You Lose the opportunity to work with your attorney to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes

5. A Judge determines who gets custody of minor children. A greedy brother or crazy mother in law could ask the court for custody. The parent of your children may try to control the assets of your children and not properly spend the money

6. It probably will cause fights and lawsuits within your family

        

 ESTATE PLANNING TO PROTECT CHILDREN

        There may come a time when an unmarried parent is unable, due to physical or mental incapacity, to take care of their minor children. If a parent dies, the minor children will need a guardian. In these circumstances, those caring for the children, as well as the courts will need direction. By writing and executing a Will, which includes instructions on guardianship one may select someone, either individually or jointly, with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for persons with minor children as they are for senior citizens.

Guardians

     Most individuals appoint the parent to act as Guardian of the person and property of their minor children. It is suggested that your Will include a clause which provides that in the event the other parent predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.

          Sometimes the divorce is amicable and the person may still wish to have their ex –spouse be executor of their Will or Trustee of a trust for children. New estate planning documents should still be signed after the divorce to confirm they want to ex to remain involved in a potential estate.

Trustee for funds

     Select a trusted person, your close relative or friends, who will invest and hold your children's money. If divorced or unmarried, most people do not select the other parent. In your Will and Trust you can instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select. 

     Conclusion

        While the preceding article contains possible items to be discussed with your family, attorney  and executor, the article is by no means exhaustive.  A number of these items may not be applicable in your situation, and probably there are many others that are applicable.  The essential element is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.