FAQS

GENERAL & MISCELLANEOUS QUESTIONS

What can I expect from my first appointment with your firm?

At The Law Offices of Michael Walker, you will find a courteous and professional staff. The circumstances bring you to our office may be distressing. Our staff will do our best to make you comfortable. Our knowledge and experience will guide you through the legal process.

As a small law firm, we are able to provide personalized service to meet our client’s needs.  Having documents at our disposal is beneficial, so we always suggest that new clients bring pertinent paperwork.

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What should I look for in selecting a lawyer to represent me?

Before hiring a lawyer, you should spend some time researching the law firm you are considering. Ask for information about the lawyer’s education, training, and experience dealing with cases similar to yours. The most important part of the process is to schedule an appointment to meet with the lawyer so that you can determine if you are comfortable with his or her approach.

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FAMILY LAW QUESTIONS

What are the grounds for divorce in New Jersey?

You may obtain a divorce if you have lived separate and apart for at least 18 months. In addition, you may also pursue a divorce action based upon extreme cruelty.  This involves setting forth sufficient allegations in the divorce papers to meet the statutory criteria and, generally, it would not require testimony in open court as to the specific facts.

Most importantly, the State of New Jersey has recently passed legislation that allows couples to obtain a divorce based upon irreconcilable differences. This is a significant change in the law. This means that a person who was not able to obtain a divorce based upon extreme cruelty would no longer have to wait a year and a half before they can file.

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What does it cost to obtain a divorce?

This is difficult to answer and can vary substantially depending on the issues involved. As a general rule, it is not the divorce that is costly but rather resolving all the other issues that arise out of the marriage and divorce.  These include matters related to children, division of assets and liabilities, alimony and the like. The willingness of the parties to work out their differences through their attorneys can significantly reduce the cost.

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What is a Property Settlement Agreement?

This is the document that is prepared by an attorney which sets forth the terms of the settlement between the parties and resolves all of the issues respecting the marriage and the divorce and any matters related to the children. It may also be called a Separation Agreement or Marital Settlement Agreement.

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How is child support determined?

There is an obligation on the part of both parents to provide for the support of their children. The parent responsible for the day to day care of the child is the custodial parent. The other is the non-custodial parent. The amount of child support to be paid by the non-custodial parent is determined by the child support guidelines which are based upon a number of factors. These include the amount of income of each parent, the parenting time arrangements between the parties, and any work related child care.

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How are assets divided in a divorce?

In the State of New Jersey, the division of property is based upon the concept of equitable distribution. Although in many cases this may mean an equal division of assets accumulated during the course of the marriage, this may not always be the case. There are other statutory factors that may be considered. Just as important, certain assets owned by a spouse may not be subject to a claim of equitable distribution by the other spouse.

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ESTATE QUESTIONS

What should all estate plans include?

All estate plans should include, at minimum, three important estate planning instruments: a durable power of attorney, a living will, and a will. The first is for managing your property during your life, in case you are not able to do so yourself. The second is to address issues related to life support and the appointment of a health care representative. Lastly, a will is for the management and distribution of your property after death. In addition, in some cases, the use of trust agreements including revocable (or “living”) trusts may be part of your estate plan. A trust may help to avoid probate and address issues related to estate taxes.

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Why is it necessary to have an Estate Plan?

It is essential for individuals to address estate planning sooner rather than later. However, it is equally important to make sure the planning is done correctly. Proper legal advice is a key element in formulating a comprehensive estate plan that fits your needs. If you postpone your estate planning until it is too late, you run the risk that your intended beneficiaries – those you love most – may not receive what you would want them to receive whether due to extra administration costs, unnecessary taxes or squabbling among your heirs.

This is why estate planning is so important, no matter how small your estate may be. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and when you want. It permits you to save as much as possible on taxes, court costs and attorneys’ fees; and it affords the component that your loved ones can mourn your loss without being simultaneously burdened with unnecessary red tape and financial confusion.

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What should an estate plan include?

All estate plans should include, at minimum, three important estate planning instruments: a durable power of attorney, a living will, and a will. The first is for managing your property during your life, in case you are not able to do so yourself. The second is to address issues related to life support and the appointment of a health care representative. Lastly, a will is for the management and distribution of your property after death. In addition, in some cases, the use of trust agreements including revocable (or “living”) trusts may be part of your estate plan. A trust may help to avoid probate and address issues related to estate taxes.

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What is a Durable Power of Attorney?

For most people, the durable power of attorney is one of the most important estate planning instruments. A power of attorney allows a person you appoint – your “attorney-in-fact” – to act in your place for financial purposes when and if you ever become incapacitated.

In that case, the person you choose will be able to step in and take care of your financial affairs. Without the durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. The court process takes time, costs money, and the judge may not choose the person you would prefer.

A power of attorney may be limited or general. A limited power of attorney may give someone the right to deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A durable power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.

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What is a Will?

Your will is a legally-binding statement directing who will receive your property at your death. It also appoints a legal representative to carry out your wishes. However, the will covers only probate property. Many types of property or forms of ownership pass outside of probate. Jointly-owned property, property in trust, life insurance proceeds and property with a named beneficiary, such as IRAs or 401 (k) plans, all pass outside probate.

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Why is it necessary to have a Will?

First, with a will you can direct where and to whom your estate (what you own) will go after your death. If you die intestate (without a will), your estate would be distributed according to your state’s law. Such distributions may or may not accord with your wishes.

Many people try to avoid probate and the need for a will by holding all of their property jointly with their children. These efforts can be defeated as circumstances change. A will can be much simpler means of affecting one’s wishes about how assets should be distributed.

A will allows for the administration of your estate to run smoothly. Often the probate process can be completed more quickly and at less expense to your estate if there is a will. With a clear expression of your wishes, there are unlikely to be any costly, time-consuming disputes over who gets what. For a larger estate, a well-planned will can help reduce estate taxes.

Only with a will can you choose the person to administer your estate and distribute it according to your instructions. This person is called your “executor” (or “executrix”). If you do not have a will naming him or her, the court will make the choice for you. Just as importantly, through a will you can appoint who will take your place as guardian of your minor children should both you and your spouse both pass away.

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What should I do in advance of meeting with an attorney?

Prepare a list of your beneficiaries and a summary of your assets to help you make decisions about what to put in your will. Bring it and any additional notes to your lawyer and he or she will be able to efficiently prepare a will that meets your needs and desires.

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What is a Living Will?

Any complete estate plan should include a living will. This term may encompass a number of different documents, including a health care proxy, a durable power of attorney for health care, a health care directive, and instructions related to your medical care.

A living will can designate someone you choose to make health care decisions for you if you are unable to do so yourself. A living will instructs your health care provider as to what to do if you are terminally ill or in a vegetative state.

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What is a Trust?

A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” The rules or instructions under which the trustee operates are set out in the trust instrument. Trusts have one set of beneficiaries during their lives and another set – often their children – who benefit only after the first group has died. A trust can be a very important estate planning tool that may help avoid the imposition of death taxes.

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What is Medicaid planning?

Medicaid is the government insurance plan that provides for the payment of medical bills for people who meet certain income and asset requirements. It is often used to fund the costs of long term care where there are insufficient funds available to meet those needs. There have been recent changes to the Medicaid laws that have dramatically impacted entitlement to the program. It is important to plan well in advance to address these issues.

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