Divorce and the present economy

Due to the rapid flucutations in stock market and housing prices over the recent years, the valuation of property for the purposes of equitable distribution in matrimonial actions has become somewhat more difficult. The value used to be determined as of the date the complaint for divorce was filed. That does still hold true. However, the speed with which fluctuations in the markets have occurred make it likely that the value of real estate and securities will change substantially between the time the complaint is filed and the items are in fact sold. In light of this situtation, recently in Rendine v. Rendine, the New Jersey Appellate Division determined that the values used in negotiation of a property settlement agreement were to be upheld rather than the values existing at the time of sale, when a party waitied a substantial time to sell the marital residence and a significant decrease in value was the result. Once an agreement is reached between the parties which is the best possible resolution for each at the time, both parties should carry out the terms of that agreement quickly in order not to be damaged by market fluctuations.

For assistance with a Divorce or for further information on Divorce visit HeatherDarlingLawyer.com.

Final Restraining Orders ready for removal?

As a follow-up to my post of Decebmer 28, 2009 regarding restraining orders, I am including this additional information. This past Wednesday, the New Jersey Supreme Court reviewed the case of Crespo v. Crespo in relation to violations of the 14th Amendment. As provided in my earlier post, often times an unrepresented Defendant unrepresented by counsel, and unaware of his rights or the burdens of the prosecution, will be found guilty of a violation of the Prevention of Domestic Violence Act under a mere preponderance of the evidence standard rather than the beyond a reasonable doubt standard required in situations bearing such lofty consequences. Crespo and future cases of a similar nature, which are most certain to follow, may be cause for revisiting existing restraining orders in order to have them removed for lack of adequate proofs in the initial proceeding which caused them to be set in place.

For more information on final restraining orders in New Jersey or to discuss having an existing restraining order removed visit www.HeatherDaringLawyer.com

Right to a Fair Trial

In the recent New Jersey decision in State v. O'Brien, the Court held that the Defendant was not provided a fair trial as the judge indicated, in front of the jury, a disbelief of the Defendant and his expert witness and indicated his support of an adverse witness.

One of the rights to which a criminal defendant is guaranteed is that of a fair trial. This is one of the most basic tenets of our legal system and must not be abrogated under any circumstances. In spite of the foundataional importance of this right within our legal system, as evidenced by the facts of State v. O'Brien, it is sometimes overlooked.

The trial process is complex as it requires that evidence be set forth in a specific manner whereby each piece of evidence or bit of testimony establishes the foundation for the next. Objections must be made, if appropriate, relating to matters of evidence as well as the questioning of witnesses by attorneys. Entering into this process without full knowledge thereof is beyond difficult and is the very reason why one is entitled to counsel in any trail in which he or she may be substantially deprived of liberties. Anyone facing a matter in court should seek the assistance of counsel in order to ensure that their right to a fair trial, as well as other legal rights, are preserved.

If you have any questions regarding your rights or need legal representation visit HeatherDarlingLawyer.com.

Recent NJ Domestic Violence Cases Indicate Changing Tides

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq. was created in order to protect those placed in danger due to their domestic relationships. Because domestic violence was so widespread, and the consequences potentially serious if the offending party was not stopped, most allegations of domestic violence, no matter how minimal or tenuous, resulted in a restraining order against the alleged perpetrator. Although the statutes continue to serve their intended purpose for those actually needing help, over their years in existence, the statutes have also been abused as a weapon in order to gain advantage in legal matters including divorce, to tarnish reputations causing long-term legal implications and restrictions on liberties, or to remove a spouse or other resident from a home but continue their liability for expenses of said residence. Due to an ever increasing abuse of the domestic violence statutes for wrongful purposes, more recent decisions by the courts in New Jersey indicate a trend away from freely granting restraining orders without actual evidence that the behavior of the party against whom the restraining order is sought actually rises to the level required for protection under the domestic violence statutes.
The consequences of a finding of Domestic Violence against a party can be serious and permanent. Those accused of acts of domestic violence should seek counsel immediately in order to protect their rights and insure that a Final Restraining Order is not issued due to a lack of representation.
For more information or representation go to HeatherDarlingLawyer.com

Expediency

One of your rights in the Court system is a speedy trial. An important reason to be sure one has the benefit of a speedy trial is the preservation of evidence. Whether someone parked in a no parking zone because a sign was missing and they were unaware of the restriction or something much more serious, such as a 911 tape during a home invasion, it is important to preserve any and all evidence which will benefit the accused (Exculpatory Evidence).

Exculpatory evidence comes in many forms including, but not limited to, witnesses, video surveillance tapes from a bank or store, EZ pass information, blood or urine, samples of substances claimed to be narcotics, 911 tapes, video of DUI stops and arrests, voice mail messages, text, e-mail and many other forms.

Exculpatory evidence must be provided by the prosecution to the defense but it is imperative that an accused inform his or her legal counsel of all exculpatory evidence they are aware of immediately. Not only is it important in creating a theory of the case upon which legal counsel will try to exonerate the accused but it is urgent that such evidence be preserved for use in negotiations or trial. The longer the time lapse between the event in question and the defense attorney learning of the exculpatory evidence, the more likely it becomes that the evidence will be lost or altered.

Upon notification of any possible action in the legal system, an appointment should be made with counsel and all possible exculpatory evidence should be disclosed to counsel immediately in order that the best possible outcome be obtained for the accused.

Benefits of Counsel

Often times an individual will attend Court anticipating that the justince system will insure fairness on his or her behalf. To some degree this is a correct assumption however, people are also entitled to either have counsel of their own choosing, or in some cases, if they cannot afford same, they are entitled to have counsel appointed for them. Unless an individual is quite knowledgeable in the area of law involved in their matter, particularly their rights and privileges, these rights and privileges may be violated resulting in an unfair result. By way of example, although most judges in New Jersey make it a procedure to read a statement of rights to all parties in a courtroom prior to beginning any court proceedings, this is a very basic statement and will not afford an individual the knowledge required to avoid self-incrimination, disadvantageous guilty pleas, or other unfavorable results. It is always in the best interest of an individual who will appear in court to at least consult with counsel prior to such an appearance.

Criminal Appeals and Pleas

When a defendant enters a conditional guilty plea to an offense yet reserves a right to appeal aspects of the matter it is important to consider the scope of issues which may be raised on appeal. For example, a conditional guilty plea to burglary based on a motor vehhicle stop resulting in the observance of a police officer of burglary tools or stolen items in plain view in which the defendant reserves only the right to appeal whether police had reasonable suspicion of a motor vehicle offense sufficient to justify a stop. This conditional plea would not allow for defendant to raise for the first time on appeal his argument that the burglary tools or stolen items should have been suppressed because the police lacked probably cause for the motor vehicle stop. When considering an appeal one must always consider that issues not raised below and preserved may not be raised on appeal.

For more information on criminal matters please visit www.HeatherDarlingLawyer.com