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Frequently Asked Family and Criminal Law Questions

Family Law FAQ’s

What factors does the court consider when dividing marital property?

The division of marital property is based upon the New Jersey Equitable Distribution Statute, N.J.S.A. 2A: 34-23. This law allows the Court to consider numerous factors when dividing marital property between spouses. Property inherited by a spouse during the marriage is not subject to distribution. Also, property that is “pre-marital” (meaning owned by a spouse prior to marriage) also is not subject to equitable distribution, so long as that asset has not been commingled with marital property. The division of marital property is a crucial part of a divorce. The future financial stability of each spouse may rise or fall on the proper and fair distribution of marital property and assets. Claire Scully, Esq. aggressively fights for the fair and proper distribution of all marital assets.

Do grandparents have visitation rights?

N.J.S.A. 9:2-7.1 provides grandparents living in New Jersey with the right to seek an order for visitation rights with their grandchildren. In filing an application with the court to establish this visitation, the burden falls upon the grandparent to “prove by a preponderance of the evidence” that such visitation is in the best interests of the child. If the petitioning grandparent has been a full-time caretaker for the child, it is presumed that visitation is in the child’s best interest and the court then looks to the other statutory factors. The statute lists eight factors for the court to consider in reaching its decision.

They are:

  1. The relationship between the child and the applicant;
  2. The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
  3. The time which has elapsed since the child last had contact with the applicant;
  4. The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
  5. If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
  6. The good faith of the applicant in filing the application;
  7. Any history of physical, emotional or sexual abuse or neglect by the applicant; and
  8. Any other factor relevant to the best interests of the child.

This type of application is usually filed when an issue arises with the parents of the child or children. Claire Scully, Esq. has the experience and knowledge to navigate this complicated and sometimes arduous process.

How is child support calculated?

Both parents are obligated by law to support their children. Child support is determined with that premise in mind. The amount of the obligation is set utilizing the New Jersey Child Support Guidelines. These guidelines require financial information from each parent, as well as other information pertaining to each individual case. Coming to an amount that is fair to the children and to the parties can be complicated. Claire Scully, Esq. is experienced in the use and application of the New Jersey Child Support Guidelines.

What about Restraining Orders?

In New Jersey, obtaining a restraining order is a two-part process. The first part of the process requires the person seeking the order (the complainant) to go to the Superior Court or the Police Department to obtain a temporary order. Specific facts and circumstances must exist in order to obtain a temporary restraining order. If a temporary order is granted, a date in Superior Court is scheduled. That Court date will require the Complainant to prove to the Court that an act of domestic violence has occurred and that further protection by the Court is required by the entry of a Final Restraining Order. These matters require proper education and preparation, as the stakes are high for both the complainant and the defendant. Claire Scully has extensive experience fighting for the rights of both the complainant and the defendant in restraining order matters.

Criminal FAQ’s

If the police want to question me, do I have to talk to them?

No. A detective may leave a business card, phone message, or some other notice that they want to talk to you, but you do not have to speak to the police unless they have a warrant. You do not have to speak to the police without a warrant or without a lawyer.

Will I have a record?

If you were arrested for a 2C violation you will have a record of at least the arrest. These records and many records of conviction may be expunged pursuant to strict rules and the records hidden from most potential employers. All records of motor vehicle convictions are permanently on your driving record. The points may come off but the record remains.

Will I go to jail?

The imposition of jail time depends on numerous factors. As a general rule if you are a first offender and have not committed a crime of violence or a sale of large amounts of drugs or any within a school zone it is unlikely that you will be incarcerated.

In all cases the first issue is whether you will be convicted. An experienced criminal trial attorney can usually determine what the odds of conviction are and what sentence you will likely receive. This information can then be factored into the decision on how to proceed. Even if convicted and even in those cases mentioned above, an experience attorney may influence the sentencing determination in your favor. Information on your background, the facts surrounding the case and many other factors should be presented to various parties at the proper time. Knowing what to present, to whom, and when makes all the difference.

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  • Claire Scully, Esq. L.L.C.
  • 80 Court Street,
  • Freehold, New Jersey 07728
  • Tel: 732-462-1122

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The information contained in this web site is intended to convey general information. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.