Social Security Disabilty No Longer Offers Automatic Relief From Child Support in NJ

The New Jersey Family Court system does not accept social security's declaration that an individual is disabled as an indication that the person cannot work at all. In Gilligan v. Gilligan, the Court decided it is the burden of the obligor to either pay child support or prove why they are unable to do so. When making the ruling, the Court considered the maximum allowable earnings an obligor parent can make without jeopardizing their social security benefits and decided it could impute to the parent the ability to earn income up to that maximum amount. Currently, $1,010 per month is the maximum an individual may earn per month without jeopardizing their social security benefits. If they are blind, a person may earn $1,690 per month without jeopardizing social security benefits. Previously, in Golian v. Golian, decided in 2001, the Court held that a party receiving social security disability was presumed unable to work to pay child support. The burden of proof was on the parent seeking support to prove the disabled individual was capable of earning money to pay for child support. Putting the onus on the party without access to medical records placed them at a disadvantage in litigation. The Court, in Gilligan, did distinguish it from Golian by stating the difference between Golian's interest in alimony compared to Gilligan's interest in child support. The distinction between the two cases seem to be the strong public interest in parents supporting their children. This means a declaration of disability by social security remains a valid reason to avoid payment of alimony. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking a modification of support or someone is seeking to modify a support order imposed on you, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on alimony, divorce, dissolution of civil union or domestic partnership, custody, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Traffic Law Violations Expanded To Criminal Liability in NJ

The NJ Appellate Court upheld the decision of Sussex County Superior Court Judge N. Peter Conforti in finding violating seatbelt laws can result in criminal liability . The application of a statute designed to protect the general public safety has been used only sparingly by prosecutors since it was enacted in 1997. In the matter involved, State v. Lenihan, an 18 year old driver was found to be operating a vehicle after "huffing"- inhaling propellant as from an aerosol can with the purpose of becoming intoxicated. The driver lost control if the vehicle and the 16 year old passenger was killed in the ensuing crash. the resultant police investigation revealed the passenger was not wearing a seatbelt. When an individual acts recklessly and injures another while violating a law intended to protect the public safety they are guilty of a crime. The act of driving under the influence likely caused the accident and the failure to wear a seatbelt was a compounding factor in the death of the passenger. Under circumstances such as these, public policy favors a broad reading of legislative intent to mete out punishment and deter others from committing similar acts. Although normally viewed as a simple traffic offense, failure to wear a seatbelt was read by the Court to permit additional charges to be levied against the defendant. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are accused of criminal offense, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on traffic offenses, municipal court matters or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Increased Penalties For Burglary Are Pending in NJ

Pending legislation upgrades second degree burglary of a residence to first degree if the actor is armed. Due to the danger to human life which is always present during a home invasion, the NJ Assembly passed A-1035 on March 15, 2012. This bill is now on the desk of Governor Christie. The bill is sponsored by Assemblymen Anthony Bucco of Morris and Somerset, Ralph Caputo of Essex, Michael Patrick Carroll of Morris and Somerset and Jon Bramnick of Morris, Somerset and Union. Burglary is defined in the bill as entering or surreptitiously remaining in a dwelling or structure adapted for overnight accommodation of persons. The text of the bill includes that no one need be present when the burglary occurs. To be considered armed under the bill, the actor may display "what appears to be" explosives or a "deadly weapon." In the situation of a burglary, the actor and the victims are often surprised to encounter each other within the residence. The results are frequently deadly and the actions the parties may be confusing to each other. An actor encountered by a homeowner may be perceived as armed by virtue of an object the actor is holding with no intent to use the object as a weapon. The terms of this statute will greatly increase the penalties for such an actor to up to 10-20 years in prison and $200,000 in fines. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are a defendant in a burglary matter, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on burglary, robbery, theft, shoplifting or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Modification of Alimony- What is Required in NJ?

A change in employment or earnings of a spouse, either the payor or the payee, is not necessarily enough for a modification of spousal support. The court requires a "prima facie showing of changed circumstances" to consider modification of support. Prima facie is latin for "at first sight" or "on its face." What this means if that the change must appear, to the court, to be significant and in need of further consideration at a hearing. The change in circumstances required for a modification of support is one that substantially impairs the ability of a spouse to support himself or herself. This means a long-term change, not simply a reduction in income during a slow period in a spouse's business cycle. The court also considers the earning capacity or potential earning power of the spouse, not simply whether they are using the ability or the power. This means if the court finds the spouse can earn more, the court will impute to the spouse the income the court believes they can make. A long-term change in the economy, a certain industry leaving the area or a long-term disability are examples of reasons the court will consider modification of alimony. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking a modification of support or someone is seeking to modify a support order imposed on you, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on alimony, divorce, dissolution of civil union or domestic partnership, custody, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Possible Expansion of DNA Collection in NJ

If pending bill, S-436, becomes law, DNA collection will be expanded from those convicted of, or pleading guilty to indictable offenses. The new law would permit the collection of DNA to those convicted of disorderly persons offenses or found not guilty by reason of insanity. This means that those convicted, or entering guilty pleas, in Municipal Court would be required to provide a DNA sample. The law would also apply to juvenile offenders. This will greatly expand the DNA database and could have serious implications on members of society who have been labeled, by virtue of having a record from a low level municipal offense, as offenders of our laws. Minor offenders may be incriminated for future crimes by virtue of their DNA being found in an area they frequent for lawful purposes. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are charged with a crime, even if you believe it to be a minor municipal offense, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on criminal law or municipal court matters in New Jersey visit HeatherDarlingLawyer.com.

When Does a Child's Disability Extend or Bar Emancipation in NJ

In the event a child becomes disabled before emancipation, the extent of the disability will also be a factor in when emancipation of the disabled child occurs, if at all. If a disabled child is determined unable to support themselves by a court of law, child support will continue until such time as there is a change in the child's condition. At any time, if the spouse paying child support has legitimate cause to believe there is a change in the child's condition enabling the child to support themselves, the party is entitled to a hearing and discovery regarding the child's medical condition. Although a child may not be fully able to support themselves due to a disability, in the event they are able to partially support themselves, the payor spouse may still be entitled to a reduction in their child support obligation. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are seeking an increase or decrease in child support, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on child support modification, custody, divorce, civil union dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Eyewitness Identification Rules Change in NJ Criminal Cases

Deciding the human memory is not foolproof like a video that can be re-played and show the same picture every time, the New Jersey Supreme Court has placed tighter regulations on eyewitness identifications in criminal cases. New Jury instructions will require jurors to consider procedures used by law enforcement during eyewitness identification including suggestiveness in the composition or nature of a lineup or photo array, verbal cues or suggestions by the officers during identification, nonverbal cues or gestures by the officers during identification as well as any other factors which may have suggested to the eyewitness that the defendant in question was the one they saw. The human mind is subject to suggestion and observations are filtered through the past experiences and memories of the viewer. There are factors the Court listed as readily affecting eyewitness' perception are duration of the event, distance between the eyewitness and situation, focus on a weapon rather than entire scene, the stress the eyewitness felt as a result of the situation, cross-racial identification and lighting conditions. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. In the event an eyewitness identification is what the State uses to build a case against you, there may be a very good defense available. If you are a defendant in a criminal matter, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on eyewitness identification or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

Parenting Rights for Fathers Improving in NJ?

Often the Parent of Primary Residence (PPR), traditionally the mother, will make it difficult for the other parent, Parent of Alternate Residence (PAR), to see the children. Fathers who worked to support a family only to face divorce often find themselves unable to see their children as a result of courts forcing them to continue to support the now dissolved family, including a former spouse, for no other reason than they did so during the marriage. As a result of being forced by courts to work long hours, sometimes even second or third jobs, to pay the bills of the former spouse, fathers are further denied the opportunity to raise the children and find themselves relegated to the position of PAR. It is often only a matter of time before fathers find the other party withholding or denying parenting time. A recent NJ case offers hope to the PAR. In Ewing v. Hart, the NJ Appellate Court held that (1) a mother who moved to Florida with the children and denied summer and holiday visitation time to the father was in contempt of court; (2) charged the mother with custodial interference and signaled she may be required to return the children to NJ if the mother did not cease her interference with the father's parenting time; and (3) permitted the father to file a motion for a change in custody in the event the mother continued to deny the father parenting time as ordered. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are involved in a dispute regarding child custody or parenting time, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on dissolution of a marriage, civil union or domestic partnership, child custody or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Conditional Dismissal May Be Expanding in a NJ Municipal Court By You

Conditional Discharge and Pre-Trial Intervention (PTI) permit first time offenders, in Municipal and Superior Court respectively, to undergo a period of probation rather than face the typical penalties for the crime committed. In the event they successfully complete the probationary period, the crime will not appear as part of their record. If they fail to complete probation successfully the underlying charges are simply reinstated and they will be sentenced to the appropriate penalties. Municipal Courts allow Conditional Discharge for certain first event drug related offenses and Superior Courts allow Pre-Trial Intervention for a variety of offenses for first time offenders. The unfair result for certain offenders in municipal court is they are subject to harsher penalties than those committing more serious offenses. The Conditional Dismissal program under consideration would permit defendants charged with disorderly or petty disorderly persons offenses the opportunity to avoid a criminal record. Conditional Discharge and Pre-Trial Intervention are good choices for some offenders but not for all. Your best choice is always to seek experienced legal counsel if facing criminal charges in Superior or Municipal Court. For more information on criminal law in New Jersey visit HeatherDarlingLawyer.com

Mandatory Jail time for Driving While Suspended in NJ

Driving while suspended in NJ carries substantial penalties. First and second time offenders face fines and further suspension of driving privileges. Those convicted of third or subsequent offenses face fines, further suspension and mandatory imprisonment in the county jail for 10 days. In the past, municipal court judges could take all factors into account at sentencing, including your personal circumstances such as job or family responsibilities, illness and other significant factors and permit alternatives to jail. Formerly the Sheriff's Labor Assistance Program (S.L.A.P.) was used by some municipal court judges as a means to permit certain individuals to avoid jail based on their specific circumstances. A New Jersey municipal court judge decided, in State v. Ayton, on September 13, 2011, that S.L.A.P. is not available to third or subsequent offenders. Although this is not binding on other Courts in New Jersey, it represents a tightening of traffic laws in NJ. The result of a Driving While Suspended charge can be severe. It becomes even more significant if you cannot afford to miss work, have family members who rely on you to meet their daily needs or other issues which make serving a jail sentence seem impossible. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are facing a Driving While Suspended charge, you should consult an experienced municipal court attorney immediately in order to protect your rights. For more information on driving while suspended, traffic violations, other municipal court or criminal law matters in New Jersey visit HeatherDarlingLawyer.com.

No Expectation of Privacy In A Cell Phone Number in NJ

A former Morris County teacher, Patrick DeFranco, was indicted on charges of first-degree aggravated sexual assault, second-degree sexual assault and third-degree endangering the welfare of a child after a wiretap provided evidence of a past sexual relationship between the teacher and a former student. The abuse had gone unreported for 7 years and the student no longer had evidence of the relationship. In order to obtain evidence, the victim agreed to call the Defendant while the police listened on a recorded line. The cell phone number the victim had for DeFranco was no longer valid so the Morris County Prosecutor's Office, with the help of Denville police, obtained DeFranco's current cell phone number from Valleyview school. A call took place in which DeFranco chose to discuss past sexual contacts with the victim. At trial, DeFranco moved to suppress the wiretap based on the fact that, although he had given his prior cell phone number to the victim, he had not given the number used for the wiretap to the victim. He further argued that he had a reasonable expectation of privacy in his cell phone number and the police should not have obtained same without a warrant, for which they may not have met the probable cause requirements. Morris County Superior Court Judge Dangler refused to suppress the evidence obtained from the phone call. The NJ Appellate Court upheld Dangler's decision, finding there was no reasonable expectation of privacy in a cell phone number and, even if there was, DeFranco waived it by giving the victim his number in the past. The Appellate Court also noted DeFranco's choice to recall intimate details of his past during a voluntary conversation with a victim he had sexually abused in the past. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are charged with a crime, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on megan's law, sex-crimes, endangering the welfare of a minor or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.