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Philip Smith Burnham II
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Philip Burnham’s Answers

394 total


  • Venue for a Lawsuit

    How is venue for a lawsuit determined? Most one of the parties live in the county that is used for venue? Can you file in a different county other than where one lives?

    Philip’s Answer

    In New Jersey venue is governed by the New Jersey Court Rules.

    See 4:3-2. Venue in the Superior Court. This rule states:

    (a) Where Laid. Venue shall be laid by the plaintiff in Superior Court actions as follows: (1) actions affecting title to real property or a possessory or other interest therein, or for damages thereto, or appeals from assessments for improvements, in the county in which any affected property is situate; (2) actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose; (3) except as otherwise provided by R. 4:44A-1 (structured settlements), R. 4:53-2 (receivership actions), R. 4:60-2 (attachments), R. 5:2-1 (family actions), R. 4:83-4 (probate actions), and R. 6:1-3 (Special Civil Part actions), the venue in all other actions in the Superior Court shall be laid in the county in which the cause of action arose, or in which any party to the action resides at the time of its commencement, or in which the summons was served on a nonresident defendant; and (4) actions on and objections to certificates of debt for motor vehicle surcharges that have been docketed as judgments by the Superior Court Clerk pursuant to N.J.S.A. 17:29A-35 shall be brought in the county of residence of the judgment debtor.

    Without more facts, I cannot provide a precise answer. However, it can be filed in the county where one party resides. Look at the rule to see what kind of action is being brought (i.e. real estate, contract, personal injury, etc.).

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  • Is it possible to put a hold on a child support case?

    My child's father and I were never married, we haven't been together in 5 years and recently he told me he is getting divorced and would like to work things out with me for our child I am willing to do so except he said I have to drop the child su...

    Philip’s Answer

    Child support belongs to the child. I would not agree to terminate child support unless you are together. You could, however, agree to not take any enforcement action for now (do not agree to get rid of the arrears, they cannot be reinstated). You could also agree to reduce the child support amount while you try to resolve matters (for instance a small amount per week like $20) to see if he is serious or just playing you to eliminate the arrears. If things do not work out, you still have your arrears, you can notify probation to enforce the arrears and you can move to increase child support.

    I would also keep your child support account active because you will have to reopen your account if you close it and terminate the arrears.

    Good luck.

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  • Does my child's father need to tell me where my son is staying?

    Child's father lived with his parents in millville until I found out he was stealing my money and I went to the millville cops. Now he claims he's not staying with parents anymore but will not tell me where my child will be. He says he's safe bu...

    Philip’s Answer

    It sounds like you are the parent of primary residence. Even if you are not, the father has to tell you where your son is staying. I would file a motion with the court to make him disclose the address and to suspend his parenting time until he discloses the location. I would also ask the court to allow for a home inspection to make sure the house is suitable for your son.

    You need to take immediate action. I would seek experienced counsel to assist you and give you more detailed advice, after reviewing your current custody orders, to determine if you should even allow parenting time until you know your son is safe.

    Good luck.

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  • Do I need council?

    I live in NJ, my ex-girlfriend & I had an dispute that resulted in her getting an TRO (temp. restraining order) & the state filing simple assault (disorderly persons) charges against me. She ha ssince dismissed the TRO, however, the state is s...

    Philip’s Answer

    The only person who can agree to dismiss the charge is the local prosecutor or the Judge after a trial if the state has not proven the case. Your ex can and probably will be compelled to go to court. Dhe can indicate to the Prosecutor that she does not wish to proceed. I would recommend that you retain an attorney to assist you, and I would make sure the prosecutor has a copy of your Order of Dismissal for the TRO.

    Good luck.

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  • I have been married for the past 20 year with 2 kids (Daughter 19yrs, Son 10yrs). I need divorce from my wife.

    I have been leading a mechanical life working to support my family. My wife who is not working, has been disrespectful and has no gratitude towards the hardship I undergo. Feeling of separation has bought suicidal thoughts in my wife. She now real...

    Philip’s Answer

    These are always tough questions, without an easy answer. First, New Jersey has no fault divorces. You can file the complaint for irreconcilable differences. In a no-fault divorce, spouses don’t have to allege that the other spouse did something bad, which led to the divorce. Spouses can end their marriage without airing dirty laundry in court or being forced to defend against embarrassing accusations in public.

    The no-fault process may help lessen the heavy burden a divorce places on kids. Even an “amicable divorce” is hard on children.

    You may pursue a no-fault divorce as long as you meet all of the following requirements:

    •you or your spouse have lived in New Jersey for 12 consecutive months before filing for divorce
    •you and your spouse have experienced irreconcilable differences for at least six months
    •the irreconcilable differences caused the breakdown of your marriage and make it appear that the marriage should end, and
    •there is no reasonable chance for a reconciliation.

    Marital fault is not a factor in the financial aspects of divorce, and in the equitable distribution of the assets. So, your wife will still receive her share of equitable distribution and support, and depending on the custody and parenting plans, you might have obligation to pay child support.

    If you really feel your wife might harm herself, get her medical attention immediately. I would also seek the advice of experienced divorce counsel who will better be able to help you though this process.

    Good luck.

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  • Filing a motion

    My ex informed me that she just had her attorney file a motion against me. Will this be sent to me or my attorney? If it is filed today, when will I receive this?

    Philip’s Answer

    • Selected as best answer

    If it has been more than forty five (45) days since you were last in court, your ex's attorney can send the motion directly to you. If, however, you are represented by an attorney, and there has been active litigation, your ex's attorney must serve your attorney. I would alert your attorney a motion is coming, and have your attorney reach out to your ex's attorney to obtain a copy.

    Good luck.

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  • How does FRO effect my parenting time?

    My child's mother has a FRO against me. How does this effect my visitations with my child. The visits are currently supervised by the court. For how long does this usually last? Am I going to be able to have the child unsupervised soon?

    Philip’s Answer

    You need to make an application to the court to modify the parenting schedule. I would have a proposed parentin plan in the application with a plan to address any safety concerns the court raised initially to currently require supervised parenting time.

    Good luck.

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  • My wife file for divorce and threaten to have me deported if I did not sign my rights away to claim anything.

    I was married and thought the the divorce was final because i could not find my then wife and got married a second time .and found out that ,previous marriage ended a year after i had been married.now my present wife filed for divorce, what legal ...

    Philip’s Answer

    I would not agree to give her everything. Meet with a divorce attorney and an immigration attorney but getting divorced is not grounds for deportation.

    You are entitled to an equitable distribution of the marital estate so get help to make sure you do not give up your rights.

    Good luck.

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  • I filed a motion in June with a return date of 7/10/15, for reduction in alimony. How long does court have to respond?

    Filed motion in June with other party filing cross motion which I responded to in timely matter. Have called the court and they said they were getting to it, this was like two weeks ago. How long do they have to respond to the motion.

    Philip’s Answer

    Usually motions are scheduled 24 days after the filing date, and are returnable on a Friday for FM dockets. If it is an FD docket, the court schedules those hearings. I would call the court in Hunterdon County, at Hunterdon Courthouse
    20 North Bridge Street
    Somerville, NJ 08876-1262
    (908)231-7191 65 Park Avenue
    Flemington, NJ 08822
    (908) 237-5800

    to see what is going on with your motion.

    The other party has to respond 15 days before the return date, and you have 8 days to file a response.

    Good luck.

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  • Can my husband take me off his health insurance before the divorce? We are only separated right now.

    Do I have ant rights to stay on health insurance

    Philip’s Answer

    No he cannot just remove you from his health insurance. When you file a divorce complaint in New Jersey, the New Jersey Court Rules requires a party to file an Affidavit of Insurance. New Jersey Court Rule, 5:4-2(f) - states:

    (f) Affidavit or Certification of Insurance Coverage. The first pleading of each party shall have annexed thereto an affidavit listing all known insurance coverage of the parties and their minor children, including but not limited to life, health, automobile, and homeowner's insurance. The affidavit shall specify the name of the insurance company, the policy number, the named insured and, if applicable, other persons covered by the policy; a description of the coverage including the policy term, if applicable; and in the case of life insurance, an identification of the named beneficiaries. The affidavit shall also specify whether any insurance coverage was canceled or modified within the ninety days preceding its date and, if so, a description of the canceled insurance coverage. Insurance coverage identified in the affidavit shall be maintained pending further order of the court. If, however, the only relief sought is dissolution of the marriage or civil union, or a termination of a domestic partnership, or if a settlement agreement addressing insurance coverage has already been reached, the parties shall annex to their pleadings, in lieu of the required insurance affidavit, an affidavit so stating. Nevertheless, if a responding party seeks financial relief, the responding party shall annex an insurance-coverage affidavit to the responsive pleading and the adverse party shall serve and file an insurance-coverage affidavit within 20 days after service of the responsive pleading. A certification in lieu of affidavit may be filed.

    I would seek experienced counsel because you might have to get a court involved.

    Good luck.

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