Archive for January, 2012

Adult Adoption

Thursday, January 26th, 2012

See, generally N.J.S.A. 2A:22-1 et seq.

In order to do an adult adoption, the adopter must be at least ten years older than the adoptee, and there must be some showing that a parent-child relationship exists, rather than there being some sort of financial or other ulterior motive for the adoption.

One of the happiest cases I have ever handled involved an adult adoption. Most times, people come to lawyers because they are faced with problems, and if they are made happy through the process it is often an accident, or at the expense of someone else. Here, we allowed two people to formalize a “parent-child” relationship they had had for a long time, and it made them both happy to know that not only did they recognize it, but the law now did as well.

Being “Ready” and Being “Prepared”

Tuesday, January 24th, 2012

There’s an old chestnut about lawyers being one or the other, but not both.

Lawyers who have been around the block a few times can be “ready” to make an argument in no time flat. They have done it before, they know the nuances, and they know how to adapt to facts they may not have caught the first time around.

Lawyers who are “prepared” know the facts, but they still need to put together the argument itself. They need to be able to adapt and roll with the punches as their adversary comes up with something unexpected.

The nice thing about a mid-sized firm like Maselli Warren, PC is that we are both. We have the experience to be “ready” at a moment’s notice, and take the time and care to be well “prepared.” Give us a call if you have a question, and let us show you what we mean in person.

Making a Point

Thursday, January 19th, 2012

This article is especially important given my prior posts on consumer vigilante justice, referenced here and here.

All of us have had situations in our lives where we have been inconvenienced or damaged by some sort of situation due to another’s negligence. A totally understandable first instinct is revenge- and if you’re the litigious sort (or if you’re a lawyer), the court system seems like a natural place to seek redress.

If you’re mad about something that happened to you and you want to sue, I understand. You have suffered some sort of damage and/or injury and you want to be compensated for it. That’s one thing.

But don’t file a lawsuit to “make a point.” Some people want to get their money, and to prove something as well. The problem is that people and companies have this annoying tendency not to see your “point” because you’re trying to extract money from them. If you end up being able to make a point (through the media or whatever) after you win, then terrific. However, you need to win (and make yourself some money) first; losing your case would make the wrong kind of point.

If I Die Young, Bury Me In Facebook

Tuesday, January 17th, 2012

Lay me down in a bed of email…

Or maybe not? As this article would indicate, different companies have varying policies as to how accommodating they might be with your loved ones’ email and social media accounts after death. Apps like “If I Die” will continue to flourish as people crave the kind of certainty and security that they have in their “offline” affairs. The current state of online affairs is more of a mixed bag. Facebook will allow you to use a profile as a memorial, whereas Yahoo is not nearly as forgiving. Sometimes, you may even need to go to court in order to force companies to preserve important information.

It used to be even five years ago that such matters were not covered by formal policies, and that there was often little or nothing that a person could rely on if faced with such a problem. I anticipate that as this issue receives more attention, there will be an industry-wide standard for dealing with deceased loved ones’ social media and email accounts, and within the next five years or so there will be almost as much certainty in our online matters as those on paper. Of course, this security can’t come soon enough- many of us conduct the majority of our lives on computers, and there is no justification for the possible loss of that data.

Just remember, even if companies don’t prove to be as progressive as I think they will be, there is a way to avoid every policy they could adopt. Just put your passwords and other important information with your will, with any instructions you need to give your loved ones in the event of your demise.

Consumer Vigilante Justice: Continued

Friday, January 13th, 2012

In my last post I suggested that you might have some success by using the court system to get the attention of those big companies that are ignoring you. Here’s how you do it.

In Pennsylvania, New Jersey, and New York, corporations often have to retain an attorney to appear in matters involving more than about $5,000. If the dispute is over a few hundred dollars, many times the corporation can send a representative to defend the company. That representative is often a low-level managerial employee who has little or no experience with the court system, because this kind of tactic is not often employed by consumers. You can use their inexperience to your advantage.

Most small claims courts in this area will employ mediation as a tool for disposing of small claims cases. The logic is that both sides are better off making an agreement somewhere in the middle, rather than letting the judge decide a winner for legal reasons that might not be entirely clear to anyone. If you are seeking a refund or some other accommodation from a corporation, all you really wanted in the first place was an opportunity to be heard, and mediation is the perfect forum for that.

The only thing you need to be sure of, besides filling out the forms the court provides you correctly, is that you need to have a real cause of action (a problem, really) to file a case and avoid getting slapped around by the court. If you feel that the company hasn’t lived up to their side of the deal, it can be called a “breach of contract.” If they are not dealing with you fairly you can call it “breach of duty of good faith and fair dealing.” Even once you try to use legal terms of art, explain fully what your problem is and most judges, realizing you’re not an attorney, will do what they can to make your facts fit a legal paradigm.

Most of the time, though, it won’t come to that. A company has much better things to do than to send an employee in to try a case. If you want to get their attention, by the time you sue them you will most certainly have succeeded. At that point, they may be inclined to give you what you’re asking for (within reason) just to make the whole thing go away. It may have cost you some extra time and the court’s filing fees, but at least you got it resolved in your favor.

If you have any questions about how to pursue this strategy, or if you think you might just need a lawyer’s services because a company is treating you badly, feel free to call Carl at 609-452-8411 x117 for a phone consultation.

A Modest Proposal: Consumer Vigilante Justice

Tuesday, January 10th, 2012

I’m not entirely sure that all of our readers will be comfortable with the course of action I am advocating for in this article. But what I do know is that I’ve seen it work, and it might be an effective way for you to get a company’s attention if you’re feeling ignored as a consumer.

Small claims court is a wonderful thing for most people. Little conflicts get ironed out with relative ease when two people sit down, with the help of mandatory NJ mediation, and finally listen to one another.

Listening and communication are the keys to dispute resolution. If a party is not listening, there will be no agreement on anything. You probably already know this on some level, because you have called customer service for some company or talked to a representative of a store, and finished by saying “Am I talking to a wall?” I am here to suggest an alternative: sue companies you’re annoyed with, get them into small claims court, and don’t be surprised if you get the results you’re looking for.

To be clear: you can’t sue a company without a good reason, and an attorney can’t advise you to do so- there are court rules, ethical rules, and just plain common sense principles that prevent that from happening. However, if there is a real cause of action, you might be able to use the court system to your advantage.

I will cover the process by which you might do this in my next post.

What a Struggling Business Must Do to Survive Under Financial Stress

Thursday, January 5th, 2012

This article was featured in a recent issue of the Mercer County Woman. It was written by Paul Maselli, a partner with the firm.

The continued success of a struggling business depends on the business owner’s ability to make prudent decisions under financial stress.  In 25 years of representing struggling businesses (and unpaid lenders), I have witnessed many bad business decisions.

A “struggling business” is one that has had past success in timely paying payroll, taxes, rent and other operating expenses, but finds itself in a situation where it is no longer selling enough products or services on a monthly basis to meet its monthly expenses.

The worst decision a business owner can make is to not pay taxes.  Delaying the payment of payroll withholding and employment taxes, sales taxes, etc. can be fatal to both the business and the business owner.  The government has little flexibility in negotiating payment plans or reducing the tax debt,  and strong collection powers.  Taxes are the first priority.

It is foolhardy to not pay rent if there is no place else to run the business.  A landlord has quick access to the courts to obtain an eviction which will effectively terminate the business.

The next priority is the payment of long-term debt to a creditor, such as a bank, with a lien on the business assets –  accounts receivable, machinery and equipment, inventory, etc.  Creditors with collateral can not act as quickly as the government or the landlord, but they do have expedited court remedies which can destroy the business.

Before missing a payment to a creditor with collateral, the business owner should  meet with that lender, disclose the problems, and attempt to negotiate a new payment plan.  Ignoring these types of creditors doesn’t make them go away, it just makes them angry and impedes the resolution process.

Trade creditors with no collateral have the most difficult time collecting which provides leverage in negotiating pay-outs. Trade creditors usually want to keep the struggling business as a customer if it has been a good customer over the years and will usually make an effort to resolve the situation.

Avoid the temptation to borrow on a line of credit to meet cash needs.  This can be fatal.  The credit line should be used only to cover the delay in collecting strong accounts receivable and should be repaid immediately when the customers’ payments come in.

On the other hand, borrowing money when the business is not generating enough sales to meet operating expenses is a temporary fix that will cause more damage in the long run.   If the company’s problems are not addressed because the company can borrow money, that money will soon run out and the problems will still be there.  Except now the problems include the repayment of the borrowed funds.

The best decision for a struggling business is to decide to seek professional help from a business consultant, accountant or lawyer with experience in providing advice to businesses.  While this may create an additional expense in a time when cash is short, it is the smartest decision for resolving the crisis.

Insurance For Your Marriage: Why You Need A Premarital Agreement

Tuesday, January 3rd, 2012

This article was featured in a recent issue of the Mercer County Woman. It was written by Kimberly Pelkey Sdeo, an attorney with the firm.

You have insurance on your car in case of an accident and medical insurance in case you get sick.

Getting married is exciting. It’s also a good time to evaluate your personal financial circumstances and determine whether you need to insure your marriage. Premarital agreements help you to protect your assets and should be considered before you say “I do.”

In New Jersey, property acquired before marriage is called premarital property and will remain separate property unless commingled after the marriage. In New Jersey, premarital agreements are governed by a
law called the Uniform Premarital and Pre-Civil Union Agreement Act. N.J.S.A.§37:2-31 et seq.
The statute requires the Agreement to be in writing, signed by both parties with full disclosure of assets and liabilities to be enforceable. N.J.S.A. §37:2-33. Consider the following two hypothetical relationships:

Nick and Jessica

Jessica owns a house, which she bought five years ago for $250,000. After the wedding, Jessica and Nick move into her house and share the mortgage payment. Over time, they renovate the house and finish the basement where Nick creates his “man cave.” Five years later, Nick and Jessica divorce. The property is now worth $300,000 and the mortgage is $125,000. Since Nick has a marital interest in the equitable distribution of the house, Jessica must pay him $87,500 for his one-half net equity in the house. Jessica must refinance or sell the house to obtain the funds. If Jessica had a premarital agreement, she could have carved out the home and its equity as separate premarital property.

Reese and Ryan

Reese and Ryan meet at work, fall in love, get married and have two kids. Ryan stays home with their kids and turns to shopping online to comfort himself while Reese is off on her many business trips. Ten years later, Reese and Ryan call it quits. It is only after they split that Reese learns of Ryan’s credit card debt. Now the parties are separating and faced with $100,000 of debt.

Just like the equitable distribution of assets, upon a divorce, there is an equitable distribution of debts acquired during the marriage. Ryan hasn’t worked full-time in years and doesn’t have the means to pay the credit cards on his own, so Reese will absorb the credit card debt through making monthly support payments to Ryan.

If Reese had a premarital agreement, discussed finances and learned of Ryan’s habits before tying the knot, she could have stipulated that the debts in each party’s name remain his or her sole and separate liability in the event of a separation.

With a little foresight and planning, Jessica and Reese could have avoided these problems by insuring their marriages with a premarital agreement. Unsure if your marriage needs to be insured? Call me for a consultation.

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