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Answers to Frequently Asked Questions about Family Law and Elder Law in New Jersey

When you are dealing with a family law or elder law issue in your family, you probably have a lot of questions about what the law says and what legal procedures will be involved. Below we provide answers to some frequently asked questions we often hear at Velazquez Law, LLC, as we help people with divorce, child custody and support, guardianships and more. If you have other questions or need immediate assistance with a New Jersey family law or elder law matter, call Velazquez Law, LLC, at 973-873-4900 for a consultation.

Family Law FAQs

What is a QDRO?

QDRO stands for Qualified Domestic Relations Order. A QDRO is sometimes necessary when the family court judge in a divorce splits up the portion of a retirement or pension plan that qualifies as marital property. The QDRO serves as an order to the plan administrator to pay out a part of the benefits to an alternate payee (in this case, the non-employee spouse) without incurring a penalty for early withdrawal.

Is child support still ordered if the court grants shared custody?

The child support model used in New Jersey combines both parents’ household incomes and the costs of raising the child to determine the proper support amount. Even if parents share custody on an equal basis, if their incomes are different, one parent might still be required to pay a monthly support amount in accordance with the New Jersey child support formula.

Can a custodial parent move out of state and take the kids?

The custodial parent would need to get permission from the non-custodial parent and/or approval from the court. If the non-custodial parent objects to the move, the custodial parent would need to petition the court. In the case of shared custody, the custodial parent would have to show that changed circumstances, such as a better job, justify the move and that the move is in the child’s best interests. If the move would require a shift from shared custody to primary custody, the moving parent would also have to demonstrate how primary custody would be in the child’s best interests.

If the custodial parent already has sole or primary custody, the parent would still have to show a good faith reason for the move and prove that moving would not be detrimental to the child. The moving parent should also include a proposed revision to the parenting plan that shows how the non-custodial parent will continue to exercise visitation and parenting time, including plans for travel and communication.

The non-custodial parent can challenge the move in court, and the judge will have to decide whether or not the relocation is in the child’s best interests based on the evidence and arguments made by the parties through their attorneys.

Can I withhold visitation until my ex pays the child support he owes?

If your co-parent is not paying child support on time or in full, you have many options to enforce the court order for support. Withholding access to the kids is not one of them. Talk to your attorney about options for child support enforcement, including having your ex held in contempt of court or getting payments withheld from his paycheck. If you violate the custody arrangement by denying visitation, you could jeopardize your custodial rights and face other adverse legal consequences.

Elder Law FAQs

What is the difference between a guardianship and a conservatorship?

In a guardianship, the guardian has the authority to make decisions on behalf of the ward, who might be a minor or an incapacitated adult, such as a senior citizen with diminished mental capacity. A guardianship might be full (known as plenary) or limited, depending on the extent of the individual’s ability to make decisions. When establishing a guardianship, the court can decide the scope of the guardian’s role. Typically, the guardian can make medical, legal and financial decisions for the ward. A plenary guardian could also decide the ward’s residence, employment opportunities, social activities, marriageability, etc., according to the terms of the guardianship.

A conservatorship is established by a person who is currently legally competent to make decisions yet realizes the need for help managing property or making financial decisions. A conservatorship can help an aging individual manage property responsibility by taking away the threat of undue influence from a family member or caregiver or susceptibility to exploitation by scammers and con artists.

What are some alternatives to guardianship?

You could execute a durable power of attorney (POA) that delegates authority to a person you trust to make legal decisions on your behalf. A Durable POA will remain effective if you become incapacitated and can’t make decisions on your own. You can also create advance directives such as health care proxies and living wills that delegate medical authority to a person you trust or direct health care providers regarding how you would want certain medical decisions made. Powers of Attorney and advance directives are common elements of a comprehensive estate plan, along with wills and trusts.

What is required to make a valid will in New Jersey?

The person making the will (the testator) must be at least 18 years old and of sound mind. Being of sound mind means you understand you are making a will to distribute your estate, and you understand the nature and extent of your estate. The will must be in writing. “Writing” means a printed or typed document, although a will that is written entirely in the testator’s handwriting could be accepted as a “holographic” will under New Jersey law.

The testator must sign the will or direct another person to sign it if the testator is physically unable. Two people must witness the signature of the testator or person directed to sign the will, or the testator’s acknowledgment of the will. The witnesses should also sign the will in each other’s presence and the testator’s presence.

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