39:4-50.4a Refusal to properly submit to chemical test (penalty provision at N.J.S.A. 39:4-50.4a(a) Refusal Statute is 30:4-50.2

39:4-50.4a Refusal to properly submit to chemical test (penalty provision at N.J.S.A. 39:4-50.4a(a) Refusal Statute is 30:4-50.2

1st Offense - $300 to $500 fine, and

- driver's license suspension not less than 7 months or more than 1 year (consecutive to any revocation

imposed under N.J.S.A. 39:4-50 unless part of a permitted plea agreement in which event the

suspension may be concurrent), and

- DDEF $100, and approx another $300 in court fees

- shall refer offender to IDRC. And $3,000 MVC surcharges

- mandatory car ignition interlock for 6 months-12 months at your expense

2nd Offense - $500 to $1000 fine, and

- driver's license suspension for 2 years (consecutive to any revocation imposed under N.J.S.A. 39:4-50),

and

- DDEF $100, and

- shall refer offender to IDRC.

3rd or Subsequent - $1000 fine, and

- driver's license suspension for 10 years (consecutive to any revocation imposed under

N.J.S.A. 39:4-50), and

- DDEF $100, and

- shall refer offender to IDRC.

Plus $3,000 mvc surcharges and 9 car insurance points

Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused.

   2. (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14).

   (b)   A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.

   (c)   In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

   (d)   The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.

   (e)   No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant.  The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act.  A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.

 L.1966, c.142, s.2; amended 1977, c.29, s.3; 1981, c.512, s.1; 2007, c.267, s.1.

39 :4-50.2a.  Guidelines for DWI and breath test refusal prosecutions

   3.   In order to promote the uniform enforcement of R.S.39:4-50 and section 2 of P.L.1966, c.142 (C.39:4-50.2 ), the Attorney General shall promulgate guidelines concerning the prosecution of such violations.  The guidelines shall be disseminated to county and municipal prosecutors within 120 days of the effective date of this act.

   L.2004,c.8,s.3.

39 :4-50.3.  Method of analyses;  approval of techniques;  certification of analysts;  reports;  forms

    Chemical analyses of the arrested person's breath, to be considered valid under the provisions of this act, shall have been performed according to methods approved by the Attorney General, and by a person certified for this purpose by the Attorney General.  The Attorney General is authorized to approve  satisfactory techniques or methods, to ascertain the qualifications and  competence of individuals to conduct such analyses, and to make certifications  of such individuals, which certifications shall be subject to termination or  revocation at the discretion of the Attorney General.  The Attorney General  shall prescribe a uniform form for reports of such chemical analysis of breath  to be used by law enforcement officers and others acting in accordance with the  provisions of this act.  Such forms shall be sequentially numbered.  Each chief  of police, in the case of forms distributed to law enforcement officers and  others in his municipality, or the other officer, board, or official having  charge or control of the police department where there is no chief, and the  Director of the Division of Motor Vehicles and the Superintendent of State  Police, in the case of such forms distributed to law enforcement officers and  other personnel in their divisions, shall be responsible for the furnishing and proper disposition of such uniform forms.  Each such responsible party shall prepare or cause to be prepared such records and reports relating to such uniform forms and their disposition in such manner and at such times as the Attorney General shall prescribe.

    L.1966, c. 142, s. 3.  Amended by L.1971, c. 273, s. 1.

39 :4-50.4a  Revocation for refusal to submit to breath test; penalties.

   2. a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2 ) when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years.  A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.

   The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.  In addition to any other requirements provided by law, a person whose operator's license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2 ) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident.  For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50.  In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense.  The person also shall be required to install an ignition interlock device pursuant to the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).

   b.   For a first offense, the fine imposed upon the convicted person shall be not less than $600 or more than $1,000 and the period of license suspension shall be not less than one year or more than two years; for a second offense, a fine of not less than $1,000 or more than $2,000 and a license suspension for a period of four years; and for a third or subsequent offense, a fine of $2,000 and a license suspension for a period of 20 years when a violation of this section occurs while:

   (1)   on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

   (2)   driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

   (3)   driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

   A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection.

   It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing.  Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

   L.1981, c.512, s.2; amended 1981, c.537, s.2; 1994, c.184, s.2; 1997, c.277, s.2; 1999, c.185, s.5; 2004, c.8, s.1; 2007, c.267, s.2; 2009, c.201, s.5.

No criminal harassment to give the finger

No criminal harassment to give the finger

The middle finger is one of the most common insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floors of legislatures.

The pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense. Indeed, the U.S. Supreme Court has consistently held that speech may not be prohibited simply because some may find it offensive. Criminal law generally aims to protect persons, property, or the state from serious harm. But use of the middle finger simply does not raise these concerns in most situations, with schools and courts as the exceptions.

The NJ Supreme Court ruled Harassment requires criminal intent by defendant, not that someone feels harassed.

Not criminal harassment to publish rude flyers

State v. Burkert231 N.J. 257(2017) 

      To ensure that N.J.S.A. 2C: 33-4(c) harassment does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.

William Burkert and Gerald Halton were corrections officers, who held positions in different unions representing distinct classes of officers. Their relationship became particularly strained after Burkert read online comments attributed to Halton’s wife that Burkert felt insulted him and his family. Angered by the insulting online comments, Burkert retaliated. Burkert downloaded the Halton's wedding photograph. He then copied the photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom. 

Halton testified that on January 8, 2011, he arrived at the employee garage of the Union County Jail and saw papers “blowing all over the place.” He picked one up and discovered Flyer #1. The next day, when Halton arrived at work, a sergeant handed him Flyer #2, which the sergeant had found in the area of the officers’ locker room. Halton identified the handwriting on both flyers as Burkert’s. On January 11, while Halton was engaged in union negotiations, a lieutenant handed him Flyer #2, stating, “This came out the other night.” Halton indicated that he “was a mess in negotiations,” went home, and never returned to work. Halton explained that he felt embarrassed and concerned for his safety and received psychological counseling and treatment. 

Ten months after the January incidents, Halton filed criminal harassment charges against Burkert. Halton stated that he filed the charges only because the county had failed to properly discipline Burkert. He also filed a civil lawsuit against Burkert. During the county’s investigation into the flyers, Burkert admitted that he had prepared the flyers but denied circulating them. Burkert explained that he expressed himself through the flyers rather than “get physical with the guy.” Burkert retired as a corrections officer in September 2012. 

The municipal court entered a guilty verdict against Burkert for harassing Halton on January 8 and 11 in violation of N.J.S.A. 2C: 33-4(c). The court found that Burkert made and circulated the flyers in the garage and locker room, that the bubble dialogue inscribed on the Halton’s wedding photograph was “lewd and obnoxious,” and that such language would “seriously annoy any person, in this case Mr. Halton.” In a de novo trial before the Law Division, the court found Burkert guilty beyond a reasonable doubt of committing acts of harassment. 

A panel of the Appellate Division reversed Burkert’s conviction, concluding “the commentary [Burkert] added to [Halton’s] wedding photograph was constitutionally protected speech.” 444 N.J. Super. 591, 594 (App. Div. 2016). The panel accepted the argument that “the altered photograph . . . was not directed to [Halton],” but rather to an audience of possibly willing listeners—other corrections officers. Id. at 601-02. The panel determined that the evidence did not support a finding that the flyers “were a direct attempt to alarm or seriously annoy” Halton or to invade his privacy rights. Id. at 601. The panel also found that the vulgar commentary on the flyers did not constitute criminal harassment. Id. at 603. 

The Court granted the State’s petition for certification. 227 N.J. 377 (2016). 

HELD: To ensure that N.J.S.A. 2C:33-4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy. 

1. N.J.S.A. 2C:33-4 distinguishes between “communications” and “language” that violate the statute in subsection (a), and “conduct” and “acts” that do so in subsection (c). Although a “course of alarming conduct” or “repeatedly committed acts” can occur through communications and language alone, it is far from clear that the Legislature had in mind offensive speech as the object of N.J.S.A. 2C:33-4(c). That the primary thrust of N.J.S.A. 2C:33-4(c) is not to interdict speech, but rather conduct, is reinforced in State v. Hoffman, 149 N.J. 564 (1997). 

2. Criminal laws touching on speech must give fair notice of where the line is set between what is permissible and proscribed and must be drawn with appropriate definiteness. A court can invalidate a statute that is substantially overbroad on its face if the statute reaches a substantial amount of constitutionally protected conduct. Such a drastic remedy, however, is not the only—and not even the preferred—approach. Provided that a statute is reasonably susceptible to an interpretation that will render it constitutional, courts must construe the statute to conform to the Constitution. 

3. The vaguely and broadly worded standard in N.J.S.A. 2C:33-4(c) does not put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes. The statute’s vagueness also gives prosecuting authorities undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute—if not more narrowly defined—has the capacity to chill permissible speech. Under N.J.S.A. 2C:33-4(c), a person who, with the purpose to seriously annoy another, does seriously annoy another is guilty of harassment. Speech, however, cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt. The First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society.

 Outside of the category of obscenity, courts should not play the role of censor by engaging in a weighing of an expression’s value or relative social costs and benefits. Speech cannot be criminalized merely because others see no value in it. Nonetheless, neither the First Amendment nor Article I, Paragraph 6 of our State Constitution prohibits the State from criminalizing certain limited categories of speech, such as speech that is integral to criminal conduct, speech that physically threatens or terrorizes another, or speech that is intended to incite imminent unlawful conduct. The First Amendment also does not bar states from enacting laws that punish expressive activity when substantial privacy interests are being invaded in an essentially intolerable manner. 

4. N.J.S.A. 2C:33-4 provides: “[A] person commits a petty disorderly persons offense if, with purpose to harass another, he: . . . (c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” In cases based on pure expressive activity, the amorphous terms “alarming conduct” and “acts with purpose to alarm or seriously annoy” must be defined in more concrete terms consonant with the dictates of the free-speech clauses of our Federal and State Constitutions. Narrowly reading the terms alarm and annoy will save the statute from constitutional infirmity. Therefore, for constitutional reasons, the Court will construe the terms “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy. That standard applies only in those cases where the alleged harassing conduct is based on pure expressive activity. 

5. The prosecution in this case targeted purely expressive activity and therefore the Court applies the heightened standard of subsection (c) set forth above. Neither the municipal court nor Law Division judge who sat in this case had the benefit of the standard developed in this opinion. They applied the statute as written. Although in other circumstances a remand might be appropriate, the Court sees no point here because even the most indulgent view of the record favoring the State would not support a harassment conviction under N.J.S.A. 2C: 33-4(c).  

Leaving scene the scene of accident involving injury or death

39:4-129(a) Leaving the scene of

accident involving injury or

death

First offense: Fine or 180 days

imprisonment, or both, and

suspension of driving privileges for

1 year from date of conviction.

Imprisonment shall be imposed

only if death or injury to another

person

fines $2500 $5000

NJ MVC Points 39:4-129 Personal Injury

8

Plus 8 car insurance points

Subsequent offense: Fine or 180

days imprisonment from date of

conviction, or both, and permanent

forfeiture of driver's license.

Imprisonment shall be imposed

only if death or injury to another

person

$2500 $5000

NJ MVC Points 39:4-129 Personal Injury

8

Plus 8 car insurance points

39:4-129, 39:4-130 Leaving Scene of Accident and Failure to Report, Car Accident

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. There is mandatory 6 month loss of license for leaving the scene. Our goal as the attorney is to negotiate with the prosecutor to reduce down to a violation with no suspension.

39:4-129   Action in case of accident.

 39:4-129 . (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both.  The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.

More info at http://www.njlaws.com/leaving_the_scene.html

In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

(b)The driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle, including his own vehicle, or other property which is attended by any person shall immediately stop his vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $200 nor more than $400, or be imprisoned for a period of not more than 30 days, or both, for the first offense, and for a subsequent offense, shall be fined not less than $400 nor more than $600, or be imprisoned for a period of not less than 30 days nor more than 90 days or both.

In addition, a person who violates this subsection shall, for a first offense, forfeit the right to operate a motor vehicle in this State for a period of six months from the date of conviction, and for a period of one year from the date of conviction for any subsequent offense.

(c)The driver of any vehicle knowingly involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operators license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person.

In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under this subsection, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsections (a) and (b) of this section, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of the local police department or of the county police of the county or of the State Police and submit thereto the information specified in this subsection.

(d)The driver of any vehicle which knowingly collides with or is knowingly involved in an accident with any vehicle or other property which is unattended resulting in any damage to such vehicle or other property shall immediately stop and shall then and there locate and notify the operator or owner of such vehicle or other property of the name and address of the driver and owner of the vehicle striking the unattended vehicle or other property or, in the event an unattended vehicle is struck and the driver or owner thereof cannot be immediately located, shall attach securely in a conspicuous place in or on such vehicle a written notice giving the name and address of the driver and owner of the vehicle doing the striking or, in the event other property is struck and the owner thereof cannot be immediately located, shall notify the nearest office of the local police department or of the county police of the county or of the State Police and in addition shall notify the owner of the property as soon as the owner can be identified and located. Any person who violates this subsection shall be punished as provided in subsection (b) of this section.

(e)There shall be a permissive inference that the driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250.00 or more to any vehicle or property has knowledge that he was involved in such accident.

For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident.

There shall be a permissive inference that the registered owner of the vehicle which was involved in an accident subject to the provisions of this section was the person involved in the accident; provided, however, if that vehicle is owned by a rental car company or is a leased vehicle, there shall be a permissive inference that the renter or authorized driver pursuant to a rental car contract or the lessee, and not the owner of the vehicle, was involved in the accident, and the requirements and penalties imposed pursuant to this section shall be applicable to that renter or authorized driver or lessee and not the owner of the vehicle.

Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of not less than $250 or more than $1,000.

Amended 1940, c.147; 1967, c.189, s.1; 1977, c.407; 1978, c.180; 1979, c.463, s.1; 1994, c.183, s.1; 2003, c.55, s.1; 2007, c.266, s.1.

39:4-130  Immediate notice of accident; written report.

  

39:4-130. The driver of a vehicle or street car involved in an accident resulting in injury to or death of any person, or damage to property of any one person in excess of $500.00 shall by the quickest means of communication give notice of such accident to the local police department or to the nearest office of the county police of the county or of the State Police, and in addition shall within 10 days after such accident forward a written report of such accident to the commission on forms furnished by it. Such written reports shall contain sufficiently detailed information with reference to a motor vehicle accident, including the cause, the conditions then existing, the persons and vehicles involved and such information as may be necessary to enable the chief administrator to determine whether the requirements for the deposit of security required by law are inapplicable by reason of the existence of insurance or other circumstances.  The chief administrator may rely upon the accuracy of the information contained in any such report, unless he has reason to believe that the report is erroneous.  The commission may require operators involved in accidents to file supplemental reports of accidents upon forms furnished by it when in the opinion of the commission, the original report is insufficient.  The reports shall be without prejudice, shall be for the information of the commission, and shall not be open to public inspection.  The fact that the reports have been so made shall be admissible in evidence solely to prove a compliance with this section, but no report or any part thereof or statement contained therein shall be admissible in evidence for any other purpose in any proceeding or action arising out of the accident.

Whenever the driver of a vehicle is physically incapable of giving immediate notice or making a written report of an accident as required in this section and there was another occupant in the vehicle at the time of the accident capable of giving notice or making a report, such occupant shall make or cause to be made said notice or report not made by the driver.

Whenever the driver is physically incapable of making a written report of an accident as required by this section and such driver is not the owner of the vehicle, then the owner of the vehicle involved in such accident shall make such report not made by the driver.

In those cases where a driver knowingly violates the provisions of this section by failing to make a written report of an accident, there shall be a permissive inference that the registered owner of the vehicle which was involved in that accident was the person involved in the accident; provided, however, if that vehicle is owned by a rental car company or is a leased vehicle, there shall be a permissive inference that the renter or authorized driver pursuant to a rental car contract or the lessee, and not the owner of the vehicle, was the person involved in the accident, and the requirements and penalties imposed pursuant to this section shall be applicable to that renter or authorized driver or lessee and not the owner of the vehicle.

Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of not less than $250 or more than $1,000.

A written report of an accident shall not be required by this section if a law enforcement officer submits a written report of the accident to the commission pursuant to R.S.39:4-131.

Except as otherwise provided in this section, a person who knowingly violates this section shall be fined not less than $30 or more than $100.

The chief administrator may revoke or suspend the operators license privilege and registration privilege of a person who violates this section.

For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident.Copyright 2016 Vercammen Law

If unmarried and die without a Will -Estate Planning pending Divorce or Break Up.

Estate Planning pending Divorce or Break Up.

         By Kenneth A. Vercammen, Esq. Author ABA’s “Wills & Estate Administration” book

         If separated and suddenly die, your spouse will receive either all of a minimum of 50% of your probate assets if no valid Will. Don’t rely on a cheap online document. Have your Will done by a estate planning attorney. Don’t try to do your own electrical work. Don’t try to do your own legal work.

          If you do not write a Will, the government has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself! 

          As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In the havoc after a break up, many persons forget to have a Will done to assure assets and decisions are taken out of the hands or the ex spouse and ex spouse’s family.

         In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian upon their death. National statistics indicate that more than 50% of Americans foolishly die without leaving a Will. In the absence of a Will  or other legal arrangement to distribute property at death, the problems often arise and a Judges decides who gets custody of your children and handles your money. This process is called the law of intestacy. The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Without a Will, your family will have to pay substantial costs for accountants, attorneys, bonding companies and probate fees.

         In planning, make sure your assets go to your loved ones or favorite charity, not an "ex". Therefore, we advise our separated or divorced clients to do the following:

1)           Have an Estate Planning Law attorney prepare a Will to distribute your assets to the people you care about the most. If you already have a Will, prepare a new Will and have the old Will revoked. (Your estate planning attorney will explain this to you.) Usually a new executor is selected, who will also serve as funeral agent. 

          Although in many states under law a divorce removes the ex spouse as a beneficiary, it does not remove the ex as executor or receiving assets under a bank POD or joint account. Don’t ever use with a cheap online form that often is not filled out correctly. Self prepared documents are often not witnessed right and are not admitted to probate. Have an experienced attorney prepare the estate planning documents who will do it right. I could change my car oil and repair the lawnmower, but I now prefer an experienced mechanic do that. You can also create specific bequests so nice jewelry or family heirlooms go to a selected child. Otherwise the executor can just sell them at the pawn shop. You can also direct in your Will a child be excluded from inheriting. Example- they testified against you in divorce court.

        

2) Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old Power of Attorney revoked. This means your attorney or you should send notices to banks and your accounts to indicate the prior Power of Attorney is invalid. If you have children over age 18, have your attorney prepare a Power of Attorney for the over 18 children so the custodial parent can still have access to their records and pay their bills if they are in an accident.

3) Select a new beneficiary on assets you may own, such as stocks, transfer upon death brokerage accounts, bank accounts, IRA, retirement accounts, 401k, payable upon death accounts POD , and other financial assets. Make sure you see the actual change in beneficiary in writing. Don’t rely on a phone call from the company that accounts are revised. Even if a court approved divorce decree states that a beneficiary should be changed, make sure you have changed the beneficiary designations. Remember, even a new Will does not change account beneficiaries on non-probate assets.

          Change passwords on all online accounts and notify them in writing that the former spouse is not permitted excess to records.

4) Change your beneficiary under your own life insurance, whether whole life insurance or term insurance. Again, don’t just rely on language in a divorce decree to make sure your wishes are followed. If the ex-spouse is required to obtain life insurance to pay to you or your children, you want to see proof of the insurance in writing with beneficiary designation.

5) Contact your employer's human resources and change the beneficiary on pension, stock options, life insurance,  and other employee benefits. Note that if you are not yet divorced, your spouse may have to sign a written waiver permitting you to change beneficiaries.

6) Keep your personal papers at a location where an ex-spouse or the child's parent can't steal or destroy them. 

7) If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody. You don’t want your ex in-laws to have custody of your children or access to the children’s money. A new Will specifically shows a Surrogate and Probate Judge you’re your wishes are. If no Will, then a judge can only guess.

         Also set up a Trust in the Will so children and grandchildren receive funds when they are 21, 25 and 30. Preserve money for college and necessary expenses, not a windfall to buy an expensive car when they turn 18. Also don’t make the minor children beneficiary of big life insurance policies, because they automatically receive when they turn 18. Instead, you can make your estate the beneficiary of life insurance and other accounts. How many 18 year old kids would spend money wisely? Seek assistance of estate planning attorney, don’t try to do everything yourself.

         A trust also protects the beneficiary if there is a lawsuit and judgment against them.

8) Make sure the trustee for any funds designated for your children is the "right" trustee. The former in laws may no longer be the best choice.

9) Re-title real estate, cars and other assets in joint names. Usually a new Deed will have to be prepared. If there is a mortgage, either a refinance or consent of mortgage company to remove your name from the mortgage. [Good luck with that.]

10) In New Jersey, if you are still married and living with a spouse, under certain instances the surviving spouse has a right to "elect against the Will".     The disinherited spouse may try to elect against the Will and try to obtain one third of the estate. Your attorney can explain how you can protect yourself and your children.      

11) Have a new Living Will / Advance Directive for health care/ medical proxy prepared to remove the ex and select a family member you trust with last medical wishes. The Living Will should contain new HIPPA language to advise doctors and hospital who should have access to medical information. You don’t want an estranged person to be able to make Medical decisions or “Pull the plug”. A divorce decree does not remove the ex-spouse on Medical Power of Attorney/ Living Will. They should have a new Living Will prepared. 

Separated persons

          Some clients are not aware they can have a new Will and other estate planning documents prepared prior to a formal divorce decree. To the contrary, our office drafts Will for individuals in marital difficulty who want to protect their assets and children in the event of an unexpected, sudden death.  A personal can have a new Will and estate planning documents without telling their spouse.

          If spouses are living together, the surviving spouse in many states can Elect against the Will and obtain 1/3 of the augmented estate. See Uniform Probate Code 2-201. A married person can also confidentially revoke a Power of Attorney, Living Will, Trust etc. However, the original attorney cannot prepare new documents if the attorney also prepared documents for the other spouse. The original attorney in some states may be required to notify the other spouse. Therefore, a new, independent attorney is suggested whose only loyalty is to you.

          It is important to prepare new documents if separation has started or is inevitable since someone does not want their some of be ex to make financial and medical decisions. However, typically a spouse cannot be removed as a beneficiary under pensions, etc without that spouse’s written consent.

          You can select a funeral agent so your estranged spouse does not handle funeral arrangements.

          Also speak with your divorce attorney to inquire if you can take out 50%  of assets in a joint account and deposit in a new account payable death to adult children, not the estranged spouse.

          If you own a small business, prepare a contingency plan if you become disabled for someone to run your business.

          Second marriage

         If you decide to get remarried, have your attorney prepare a prenuptial agreement, so your children can inherit your assets. You want your children, not new spouse, to receive your assets if you pass away. In many states, persons put their assets into Trusts for the benefit of a child. However, if the trust is revocable, Medicaid will include the trust assets as available money. In blended families, irrevocable trusts are useful because a Will can be revocable by a competent person without telling their spouse.

          If You Have No Will after someone divorces:                                

          If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get some of your assets or control assets. If you are not divorced and die without a Will, under the uniform probate code your spouse will receive 100%  of your estate if all the children are from the same relationship. State law determines who gets assets, not you.

2. If you have minor children, the County Surrogate will hold the child’s money until age 18 and it is difficult and time consuming to petition the Surrogate to release funds for payment of tuition, medical bills, clothing etc.

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You Lose the opportunity to work with your attorney to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes

5. A Judge determines who gets custody of minor children. A greedy brother or crazy mother in law could ask the court for custody. The parent of your children may try to control the assets of your children and not properly spend the money

6. It probably will cause fights and lawsuits within your family

         

 ESTATE PLANNING TO PROTECT CHILDREN

        There may come a time when an unmarried parent is unable, due to physical or mental incapacity, to take care of their minor children. If a parent dies, the minor children will need a guardian. In these circumstances, those caring for the children, as well as the courts will need direction. By writing and executing a Will, which includes instructions on guardianship one may select someone, either individually or jointly, with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for persons with minor children as they are for senior citizens. 

Guardians

    Most individuals appoint the parent to act as Guardian of the person and property of their minor children. It is suggested that your Will include a clause which provides that in the event the other parent predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.

          Sometimes the divorce is amicable and the person may still wish to have their ex –spouse be executor of their Will or Trustee of a trust for children. New estate planning documents should still be signed after the divorce to confirm they want to ex to remain involved in a potential estate.

Trustee for funds

     Select a trusted person, your close relative or friends, who will invest and hold your children's money. If divorced or unmarried, most people do not select the other parent. In your Will and Trust you can instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select.  

     Conclusion

       While the preceding article contains possible items to be discussed with your family, attorney  and executor, the article is by no means exhaustive.  A number of these items may not be applicable in your situation, and probably there are many others that are applicable. The essential element is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.