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David F Salvaggio
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David Salvaggio’s Answers

874 total


  • Can wife use my 401k to buy out my 1/2 of our house in divorce.

    Both 63 in NJ. She has her own 401k.

    David’s Answer

    The answers that my colleagues have given you are correct.

    Yes, your wife can do that, and that is sometimes done. However, the determination of whether that is the best way to do it in YOUR case requires depends on the facts of your situation.

    You should set up a meeting with a Morris County lawyer who has many years of legal experience and who devotes his or her entire practice to New Jersey Divorce and Family Law matters. At that meeting, you can go over your situation in detail with that attorney, get educated answers to your questions, and obtain expert guidance as to the best course of action.

    Whether you contact me or another lawyer, I wish you the best.

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  • How do you serve divorce papers to someone who won't answer the door?

    A private process server has made three attempts to serve divorce papers to my husband. They say it is obvious someone is home with his car on the driveway and AC running yet my husband will not answer the door. I have already relayed his typical ...

    David’s Answer

    Your lawyer should not be asking you--her or she should be telling you that if your husband is trying to evade service, the next step is to file an application with the Court to permit you to have your husband served via "substituted service."

    If you are sure that he is living where the process server has tried to effectuate personal service on him, your lawyer should be preparing and submitting to the Court a Certification from you to that effect, and asking the Court to allow you to serve him via simultaneous mailing to him there via certified mail return receipt requested and regular mail.

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  • Hello- This question is about njsa 3b:3-14 3B:3-14 - Revocation of probate and non-probate transfers by divorce or annulment.

    The facts are as follows: Our mother recently died. My sister and myself are named as her life insurance beneficiaries. Our parents were divorced in 1991. Our father died in 2011. I believe that there is a need to only present the death certific...

    David’s Answer

    I believe that the only potential "issue" would have been if your mother named your sister and you as her life insurance beneficiaries BEFORE your parents' divorce, and your mother then signed a Settlement Agreement incident to the divorce that she would change the beneficiary of that life insurance to your father.

    However, even if that had happened, I believe that your father's right would have been extinguished by his death prior to the death of your mother.

    Therefore, if the life insurance company raises an issue, your father's death certificate should suffice.

    However, as long as you have the Settlement Agreement, there is no harm in giving it to the life insurance company. Of course, if you know that there was no Settlement Agreement, just tell the life insurance company that. If you don't know, you could ask the Clerk of the Superior Court to check its records to see whether it was attached to the Judgment of Divorce.

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  • My child is going to college on a full scholarship. Should child support end?

    My child will commute from home to college.

    David’s Answer

    No, it should not end.

    In New Jersey, with only limited exceptions, child support ends when a child is "emancipated."

    The definition of "emancipation" is when a child has achieved an independent status and moved beyond the influence and responsibility of his/her parents.

    When a child begins going to college, he/she generally is not in that position, and there are expenses which the custodial parent still needs to incur for the child.

    This is clearly true when a child commutes from home to college (rather than lives at college during the school year), because the custodial parent must still provide a home for the child.

    However, because there may be some expenses that no longer need to be incurred by the custodial parent, very often the amount of the child support should be reduced when a child finishes high school and begins college.

    Every case has its own unique facts. Therefore, it is always best to meet with a lawyer who has many years of legal experience and who devotes his or her entire practice to New Jersey Divorce and Family Law matters. At that meeting, you can go over your situation in detail with that attorney, get educated answers to your questions, and obtain expert guidance as to the best course of action.

    Whether you contact me or another lawyer, I wish you the best.

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  • How can I move forward with a divorce from an unstable partner?

    We've been married 26 years, he is an emotionally unstable, abusive alcoholic. I'm scared of what he will do when I file for divorce (eg. Stalking my family members, going to my job, etc.). I don't know where to start regarding our finances (share...

    David’s Answer

    I am sorry to hear about your difficulty.

    My advice to you is that you should set up a meeting with a lawyer who has many years of legal experience and who devotes his or her entire practice to New Jersey Divorce and Family Law matters. At that meeting, you can go over your situation in detail with that attorney, get educated answers to your questions, and obtain expert guidance as to the best course of action.

    Whether you contact me or another lawyer, I wish you the best.

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  • What are my rights when my ex wife is using a lawyer to file a motion against me in another state and I have no lawyer there .

    I was divorced , and the decision was signed in New Jersey . I am a Florida resident. I have no lawyer representing me in that state . The lawyer whom my ex wife used has emailed me that he intends to file a motion in court against me regarding s...

    David’s Answer

    If I understand you correctly, you are asking whether you have the right to retain a NJ attorney to respond to a Motion which will be filed by your e-wife's NJ attorney.

    If so, the answer is clearly yes.

    I would suggest that, if you know what the residual issues are, before you do anything else you should arrange for a phone call with a lawyer who has many years of legal experience and who devotes his or her entire practice to New Jersey Divorce and Family Law matters. In that phone call, you can go over your situation in detail with that attorney, get educated answers to your questions, and obtain expert guidance as to the best course of action.

    It might save you a lot of additional legal fees and costs.

    Whether you contact me or another lawyer, I wish you the best.

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  • Alimony after 3 yrs of Divorce

    My father got divorce 3yrs ago from his non resident wife. They have a 6 yrs old child. My father only provides $ 400 monthly for the child's necessities I know its not enough!! The ex wife is demanding more money for the child because He is a...

    David’s Answer

    Your father's wife will be able to have the Court set the amount of child support which your father will have to pay. There are written Child Support Guidelines by which that amount is computed. Those Guidelines are not absolutely binding on the Court but the Court will generally follow them. No lawyer will be able to provide a valid estimate of what the amount will be without first meeting with your father and getting a lot of additional information.

    One factor which will affect the amount of child support is the amount of alimony (if any) which your father is ordered to pay. There are no Guidelines for alimony. In fact, without first meeting with your father and getting a lot of additional information, no lawyer will be able to predict whether a Court would order your father to pay any alimony at all.

    Your father should set up a meeting with a lawyer who has many years of legal experience and who devotes his or her entire practice to New Jersey Divorce and Family Law matters, discuss the situation in detail with that attorney, get educated answers to his questions, and obtain expert guidance as to the best course of action.

    Whether your father contacts me or another lawyer, I wish him the best.

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  • Not claiming 401k assets

    I got divorced last year. The settlement agreement has been signed and approved by the judge. The QDRO hasn't been drafted as part of the divorce so I still have the assets that should be transferred under my ex. The challenge is that so far she a...

    David’s Answer

    It is very unlikely that a court would ever consider the assets to be abandoned. I believe that the best course of action is as follows:

    (1) Make sure that under the settlement agreement, you had no responsibility to do anything and that your ex and/or her attorney had all of the responsibility.

    (2) Send a letter to your ex and her attorney, certified mail return receipt requested, advising them of this and telling them that if nothing is done (with notice to your attorney) by a deadline that is provided in the letter, you will be forced to have a Motion filed, requesting that an Order be entered, permitting your attorney to get the QDRO done, compelling your ex-wife to cooperate fully in that process, and also compelling your ex wife to pay the legal fees and costs that you incur for the motion as well as for getting the QDRO done.

    (3) If there is no answer by the deadline, have your attorney prepare, file and serve the Motion.

    My advice to you is that, as soon as possible, you should retain a lawyer who has many years of legal experience and who devotes his or her entire practice to New Jersey Divorce and Family Law matters.

    I understand that many people believe that they do not need good lawyers to represent them, and others say that they cannot “afford” a good lawyer.

    However, by not retaining a good lawyer, many people often lose a lot more money than the lawyer would have cost them. (You may have experienced this already, since your accounts have been frozen).

    That is why I believe that most of the time it is “penny wise and pound foolish” for people to try to handle things on their own.

    Even if they have to borrow the money from friends or family, or use a credit card to pay the lawyer, most of the time it is worth it for people to retain good lawyers.

    Whether you retain me or another lawyer, I wish you the best.

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  • NJ Divorce

    I want to know if i file for divorce. I live in NJ for 20yrs my wife live as well. But we got married out the country. Can i file a divorce in NJ eventhough we got married in Ecuador?

    David’s Answer

    Yes. As long as you have been a bona fide NJ resident for at least one year, you can file for divorce in NJ.

    I understand that many people who want to divorce are reluctant to retain lawyers to represent them. Some say that they cannot “afford” a good lawyer-- and of course there are times when that seems to be true.

    I try to put myself in the position of each person who I talk to, and the last thing that I would want to do if I were that person is to spend money unnecessarily. I only want to have clients who can actually benefit by the services that my firm provides.

    Many people do not realize that by not retaining a good lawyer, they are often losing a lot more money than the lawyer would have cost them. There are just so many things to know and things that will likely affect the result, that most of the time it is “penny wise and pound foolish” for people to try to handle things on their own.

    Even if they have to borrow the money from friends or family, or use a credit card to pay the lawyer, most of the time it is worth it for people to retain good lawyers.

    My advice to you is that, as soon as possible, you should call a lawyer who has many years of legal experience and who devotes his or her entire practice to New Jersey Divorce and Family Law matters, and set up a brief phone call. The lawyer you call should be willing to speak with you personally for a few moments, to get a basic sense for what is involved.

    The next step, if both you and the lawyer are comfortable, is to schedule a meeting with the lawyer. In that meeting, you can go over your situation in detail with that attorney, get educated answers to your questions, and obtain expert guidance as to the best course of action.

    Whether you contact me or another lawyer, I wish you the best.

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  • Child Support and COLA

    How often should child support be reviewed? If CS does not go through probation, can one still ask for a COLA adjustment? Motions cost money - how cost effective is it to file when the CS increase may be less than the cost of the Motion? Case i...

    David’s Answer

    The answers to your questions are:

    The amount of a child support obligation can be reviewed at any time and should be adjusted if there is a "change of circumstances."

    New Jersey Court Rule 5:6B states:

    (a) All orders and judgments that include child support entered, modified, or enforced on or after September 1, 1998 shall provide that the child support amount will be adjusted every two years to reflect the cost of living.

    (b) Orders and judgments that include child support entered, modified, or enforced on or before August 31, 1998 shall be prospectively subject to adjustment every two years to reflect the cost of living.

    (c) The cost-of-living adjustment shall be based on the average change in the Consumer Price Index for the metropolitan statistical areas that encompass New Jersey and shall be compounded.

    (d) Before a cost-of-living adjustment is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice. An obligor may contest the adjustment if the obligor's income has not increased at a rate at least equal to the rate of inflation as measured by the Consumer Price Index or if the order or judgment provides for an alternative periodic cost-of-living adjustment. A cost-of-living adjustment shall not impair the right of either parent to apply (1) to the court for a modification of support provisions of the order or judgment based on changed circumstances, or (2) to the State IV-D agency or its designee for a three-year review of a Title IV-D child support order, without the need to show changed circumstances.

    Obviously, the Probation Department cannot provide the notice referred to in paragraph (d) of the Court Rule if the child support payments are being made directly. However, that does not mean that the COLA adjustment cannot be effectuated.

    The fact that the case is "Above the Guidelines" may introduce an additional complication, because a court would use the maximum support under the Guidelines and combine that preliminary figure with a supplemental award subject to the provisions of N.J.S.A. 2A:34-23(a).

    That statute requires that a New Jersey court consider the following factors:

    (1) Needs of the child;
    (2) Standard of living and economic circumstances of each parent;
    (3) All sources of income and assets of each parent;
    (4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
    (5) Need and capacity of the child for education, including higher education;
    (6) Age and health of the child and each parent;
    (7) Income, assets and earning ability of the child;
    (8) Responsibility of the parents for the court-ordered support of others;
    (9) Reasonable debts and liabilities of each child and parent; and
    (10) Any other factors the court may deem relevant.

    My advice to you is that, as soon as possible, you should call a lawyer who has many years of legal experience and who devotes his or her entire practice to New Jersey Family Law matters, and set up a brief phone call. The lawyer you call should be willing to speak with you personally for a few moments, to get a basic sense for what is involved.

    The next step, if both you and the lawyer are comfortable, is to schedule a meeting with the lawyer. In that meeting, you can go over your situation in detail with that attorney, get educated answers to your questions, and obtain expert guidance as to the best course of action.

    Whether you contact me or another lawyer, I wish you the best.

    See question