Tuesday, May 18, 2010

DWI Changes: An Update

In January, I posted a discussion of State v. Ciancaglini here, regarding the sentencing changes in the DWI and refusal laws.

Because the decision in Ciancaglini differed so markedly from prior court decisions, it has created confusion in the courts and defense bar.  Therefore, on May 7, 2010, the New Jersey Supreme Court granted certiorari, and will be reviewing the Appellate Division's decision.  Oral argument has not yet been scheduled.

Wednesday, May 12, 2010

Revoked List: Law Repealed

Effective January 16, 2010, the legislature has repealed the provision of N.J.S.A. 39:40(g) which required a fine of $3,000 to be paid to the Motor Vehicle Commission when the underlying reason for the defendant's license suspension came from a failure to pay timely insurance surcharges.

This sentencing enhancement was imposed in addition to all other penalties and was collected by the MVC.  The penalty was automatically reduced to a judgment against the defendant until paid in full.

Defendants who were assessed this fine since January 16th of this year should make an application for sentence reconsideration pursuant to New Jersey Court Rule 7:9-4.

What does this mean?

Previously, if you were found guilty of or plead guilty to driving while suspended, and the suspension had occurred because you owed insurance surcharges, you were automatically assessed this extra $3,000 penalty.  That part of the law has been repealed, so any instances of this after January 16, 2010, should be altered to comport with the statute as it now reads.

It won't be automatically reversed, so you need to make an application to the court.  Be sure to contact your attorney for help.

Also, follow up with the Motor Vehicle Commission and the credit reporting bureaus to ensure that the judgment will not show up on your credit history.

Why is Divorce Expensive?

I just spoke with a friend this morning whose parents divorced several years ago, and she relayed a joke her father told her:

Why is divorce so expensive?
Because it's worth it!

It is funny; the truth often is.  He's right, generally speaking.  Once a couple has exhausted all other avenues of recourse and still comes to the conclusion that it's time to end the marriage, then the divorce is worth it, even though it is indeed an expensive endeavor.  In the end, if things can be handled well by the parties involved, everyone is better off for it, the couple, their families, their children.  Living apart can be better than living in strife.  Many, many years ago I had a friend whose parents actually became best friends after they divorced.  Now, that's not typical, of course, but it's an indication of how much better off they were once the stresses of the relationship were removed.

But what makes a divorce so expensive?

Ah, that's what you really want to know, isn't it?  Why is it so expensive?  There are a lot of factors involved.

We as attorneys cannot ethically do a divorce on a contingency basis the way we can a personal injury matter.  That means we're not actually allowed to let you pay us based on how much money you get out of the settlement or trial.  We're directed by the rules of ethics to charge an hourly rate.  There's your first factor: your attorney's hourly rate.  Generally speaking, hourly fees are commensurate with experience and expertise.  That's not to say that a new young lawyer with a lower rate isn't a terrific attorney; they absolutely can be.  Just do your research before choosing an attorney.  As much as it may hurt, it's better to base your decision on referrals from other pleased clients and your own comfort level with the attorney than on the fees alone.  In the end, a good attorney could save you thousands down the road.

Another factor is the extent of complications present in your life.  A divorce involving a custody dispute is necessarily more expensive than one in which the parties agree on custody and visitation or one that doesn't involve children at all.  A divorce with two W-2 wage earners is less expensive than one in which a business owner is involved and the business needs to be evaluated for equitable distribution.

The other factors, though, are more difficult to anticipate.

One is the attorney your spouse chooses.  If the attorneys can work well together to reach a settlement beneficial to both parties, your divorce will be less expensive than if one party chooses an attorney who is overly litigious, gives bad advice to his client, or is simply unfamiliar with the law.

And the rest is up to you and your spouse.  The expense of a divorce depends heavily on how much you are willing to compromise.  To keep it as inexpensive as possible, determine from the outset what is most important to you and what is least important.  Tell your attorney these things, so that he or she can strategize accordingly.

My experience has run the gamut, from the least expensive divorce that was completed in two court appearances to the most expensive that involved a full three-week trial, domestic violence hearings, several arrests and the resulting municipal court appearances, expert witnesses, business evaluations, and involvement with children's services.

An anecdote:

Very early in my career, when I was just a few months out of my clerkship, I was handed a file by my boss.  The case was near the end, and I appeared in court with our client at a settlement conference at which we settled every issue... except one.  It was a bill from the parties' accountant, for $500.  At the time, my boss was billing my time at $125/hour, so four hours of my time would total the same $500.  My client, the marriage's breadwinner, was adamant that he would not pay it.  His wife honestly didn't have the money to pay it herself.  It was marital debt.  While I will never permit my client to buckle under on an issue when I think he's wrong to do so and I think he's being unfair to himself, in this instance my advice was to just pay the bill and cut his losses.  He refused.  He'd rather pay me than the bill.  It was only when my boss, an experienced attorney who'd been practicing more than 50 years, agreed with me, that our client finally agreed.

A stance like that is what will make your divorce most exorbitant.  If it's something worth fighting for, like your children, by all means fight.  Just choose your battles wisely.  Not all divorces have to be exceptionally expensive.  The ones that are should be the ones that are worth it.
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