Covid-19 Update:

The Law Office of Andrew A. Bestafka, Esq. is taking a safe but proactive approach to the Coronavirus situation in our law practice. We are working every day to represent our clients. We are offering frontline healthcare workers at CentraState free Simple Wills. To read more please Click Here

The days ahead may be a challenge. But we will continue to work to take care of our client’s cases and to take on new matters and clients. We will simply manage your case in less traditional, more technology-driven ways, that are safer for your health and ours.

Please stay healthy and contact us if you have any questions or concerns regarding your case or a new matter for us to consider.

Andrew Bestafka, Monmouth County Divorce Lawyer

Smart & Cost Efficient Representation in
Divorce, Custody & Family Law

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Five Tips for Winning Your Divorce Case

Divorces are complex because they involve emotional family issues and the division of things once shared. Even in divorces where the couple parts amicably, the negotiations and proceedings can bring out the absolute worst in people. As a result, whether you and your soon-to-be ex-spouse are parting amicably or not, your main goal should be to win your divorce case. The following five tips can help you win your case.

Don’t Move Out of Your Marital Home

When going through a divorce, you may want to get as far away from your spouse as possible. However, leaving is a bad idea unless there are domestic violence issues. Additionally, if you leave your kids to move out, even if you spend time with them, your soon-to-be ex could use your actions to pursue primary custody.

The court may also take you leaving the marital home to mean you gave up your legal rights to the property. Therefore, if you want to keep the home in the divorce, it is recommended that you stay in your marital home and learn to live with your future ex-spouse until the court determines what the living arrangements should be.

Make a Detailed List of Your and Your Spouse’s Assets and Liabilities

In New Jersey, during a divorce, the court will try and divide marital property equitably based on several factors, including:

  • Duration of marriage
  • Financial circumstances of each party
  • Standard of living during the marriage
  • Contributions to the marriage by each party
  • Value of property being distributed

Therefore, if you want your marital property to be distributed fairly and equitably, you should account for everything. If a divorcing person makes decisions based on emotions, those decisions may turn to unethical tactics, like hiding assets from a spouse or making frivolous charges on joint credit cards to run up shared debt.

Writing a detailed list of marital assets and liabilities can help ensure that nothing is overlooked during the divorce proceedings. In addition to making a list, keep records of your income and expenses. You can use your list as evidence when determining child support and alimony needs.

Keep Your Emotions in Check

No one expects you to be emotionless when going through a divorce, but letting your emotions control your decisions can lead to disastrous outcomes. When thinking with your heart, you can get stuck on things that don’t matter and lose something that does matter. For example, if you are adamant about getting a car because you know your soon-to-be ex wants it, you could lose the house you actually care about. When you put your emotions aside, you can think logically, which allows you to make the best decisions for your future. Don’t allow your emotions to get in the way of divorce negotiations.

Avoid Posting on Social Media

Posting on social media can be fun and even soothing, but you should avoid posting on social media during your divorce proceedings because everything you post can be used against you. Rants on social media about your divorce or children can make you seem unstable, which could lead to your spouse getting primary custody.

On the other hand, posts with pictures of extravagant vacations or your new significant other can be used to undermine the requests you are making during the divorce proceedings. Any post or image could be construed incorrectly, so avoid posting on social media to give yourself the best chance at winning your divorce case.

Hire an Experienced Legal Team

Having an experienced divorce attorney can make a huge difference in the outcome of your case. A divorce attorney will do the following:

  • Gather evidence to determine appropriate marital property distribution, child custody, child support, and alimony
  • Review and present evidence in the divorce proceedings
  • Negotiate with your spouse and their attorney to reach a settlement agreement
  • Represent you in court if a settlement cannot be reached
  • File all necessary paperwork on your behalf to finalize the divorce

An attorney can make a substantial difference in the amount of custody and support you are awarded during a divorce because they understand what to look for and how to present evidence in your favor. Additionally, an experienced attorney could ensure that all agreements reached during the divorce are legally enforceable. For example, you do not want to agree to ten years of alimony in a handshake deal that your ex backs out of after two months. Without a legal contract, you would likely have no way to enforce the remaining payments.

The skilled and knowledgeable Monmouth County divorce attorney of The Law Office of Andrew A. Bestafka, Esq. will review the facts of your divorce and present the best scenario in your case that could help you win your divorce. To have our experienced divorce attorney review your case, call us at (732) 898-2378 or fill out our online form, and we will contact you.

Will I Have to Take on My Ex’s Debts in a Divorce?

new jersey marital debt

Divorcing couples must divide their property, such as real estate and bank accounts, and overlook debt division. However, marital debt should be an essential topic of conversation while negotiating the terms of a divorce. You must decide who will be responsible for specific debts to prevent confusion and financial issues in the future.

How Is Marital Debt Handled in New Jersey?

new jersey marital debtNew Jersey is an equitable distribution state. Typically, the courts divide marital property equitably and fairly. The same is true for marital debts.

Equitable distribution does not necessarily mean a judge will order each spouse to pay an equal share of financial liabilities. It depends on the nature of the debt and what is most fair based on the circumstances.

For example, a judge can assign a mortgage to only one spouse if they have a job and the other doesn’t or make a significantly higher income.

Marital debt is any debt either person incurs while married but before the date of filing for divorce. It doesn’t matter if the debt is only in one person’s name. Debt is considered marital debt if incurring it benefits both spouses.

Nonmarital debt is debt one spouse incurs before getting married. Typically, the person bringing specific debt into the marriage is solely responsible for it after divorce.

Nonmarital debt can also include debt one spouse incurs while married that only benefits them. For example, gambling or spending money on an affair can qualify as nonmarital debt.

Factors Involved in Dividing Debt

The courts consider much the same factors for dividing debt that they use in property division, such as:

  • Standard of living each person established during the marriage
  • Both spouse’s age, emotional health, and physical health
  • Each person’s overall economic situation
  • Property or income either spouse brought into the marriage
  • Expense and time required for one party to obtain the training or education necessary to achieve the marital standard of living
  • Duration of the marriage
  • The extent of either spouse’s delay in pursuing their career goals while married
  • Either person’s contributions to the other’s preserving, wasting, acquiring, or improving the marital property, including contributions as a homemaker
  • The current value of all property
  • Tax consequences of division
  • Each spouse’s income and earning capacity based on experience, education, training, custodial responsibilities for children, and duration of absence from the job market
  • Both party’s liabilities and debts
  • Present or future medical or education trust needed for either person or a child
  • Contributions one spouse made to the other’s earning power and education
  • One spouse’s need to maintain the marital residence or use household effects because they have physical custody of a child

Are Marital Debts Protected from Creditors?

ex wife marital debtYou can’t prevent creditors from coming after you for unpaid bills despite having a final divorce decree signed by a judge. Creditors can pursue payment from either spouse regardless of the terms of a divorce.

For example, the judge might have assigned particular credit card debt to your ex. However, that doesn’t mean you’re off the hook for payment. If both names are on the account and your ex misses a payment, the creditor can go after you.

You can protect yourself by liquidating your assets to repay your marital debts. Resolving the problem before the divorce is final is your best course of action. However, paying off everything you and your spouse owe might be impossible. You can refinance the remaining debts in one person’s name: the person responsible for it.

Another beneficial option is to include an indemnification clause in your settlement agreement. It doesn’t prevent a creditor from pursuing payment from you. However, it requires your ex to compensate you for the payments you make on the debt and any costs you incur from a collections action.

Contact a Dedicated and Skilled Divorce Attorney Today

Incorporating all marital debt, such as mortgages, auto loans, and tax liabilities, into your property division agreement is crucial. You must take the necessary steps to protect yourself during negotiations so you don’t leave the marriage with debt you should not have to pay.

The Law Office of Andrew A. Bestafka, Esq. has extensive experience representing New Jersey clients in divorce proceedings. We can identify potential issues and minimize financial risk while dividing debt between you and your ex. You can count on our legal team to fight for your interests and future.

If you’re going through a divorce, call our Monmouth County divorce lawyer at (732) 898-2378 for a confidential consultation to learn more about how we can help. We’re available 24/7 to speak with you, so you can reach us when you need us most.

Does FaceTime Count as Visitation?

child visitation on facetime

child visitation on facetimeThe end of a marriage is rarely easy. Even if filing for divorce was your idea in the first place, separating your own life from your spouse’s could bring up a lot of painful and unexpected feelings. These feelings can be particularly intense and difficult to manage when there are children involved. The uncertainty of how custody and visitation will be decided is the element of divorce that can weigh most heavily on the hearts and minds of many parents.

One option that can help facilitate visitation arrangements for families is virtual visitation via apps such as Facetime, Zoom, Skype, and other forms of video calling. These forms of virtual visitation can allow a parent and their child to maintain contact and continue building a relationship with each other even when complex schedules or geographic space might make physical visitation challenging or impossible.

Virtual Communication

While in-person and telephone communication were the main options for communication for children and parents in the past, apps such as FaceTime have made it possible for parents to see their children virtually.

If you and your spouse have come to an agreement about a parenting plan, or if the court has issued its own order regarding these matters, having the role of technology clearly spelled out can be helpful to all parties involved. However, if these issues are as yet unresolved, you may find the following information helpful.

Determining Virtual Visitation Rules

facetime visitationWhen one parent is granted permanent physical custody of the children, the other parent will generally be given a certain amount of visitation or parenting time unless the parent would present a danger to the children. The same is the case when both parents share physical custody of the children.

In general, New Jersey considers video calling apps such as FaceTime a form of visitation. This is particularly the case when the parent without physical custody of the child lives a significant distance away, making physical visitation more challenging. Parents should seek to legally address issues that may arise between them regarding the use of technology for visitation.

When coming to a visitation agreement that includes video calling, the court may consider factors such as:

  • Whether virtual visitation is in the child’s best interests
  • The family’s capacity to afford Facetime technology or another means of video calling
  • Additional factors specific to the individual needs of the family and child

If the court chooses to grant the order, they may choose to set specific guidelines around virtual visitation, including:

  • How much each parent will contribute to the necessary costs of communicating via Facetime
  • When virtual visitation is allowed
  • Number of hours the child and parent can communicate virtually
  • Virtual visitation time outside of the regular schedule

Yet it is important to remember that virtual visitation should not entirely replace in-person visitation. Rather, it should be regarded as a supplement to a child spending time in the physical presence of their parent. If the court grants the order for virtual visitation, you should be able to do both.

What Other Forms of Contact Count as Visitation?

In addition to FaceTime, other apps such as Zoom, Skype, or Google Meet can also be considered visitation. Perhaps less obviously, visitation can also come in the form of talking on the phone, texting, or emailing. These technological forms of contact can be beneficial to your child’s well-being even if regular, in-person visitation is happening as scheduled. Courts understand that technological devices and apps facilitate and speed up communication with your child, and they recognize that having equal access to both parents as needed can benefit children immensely.

Contact an Experienced Monmouth County Divorce Attorney

Divorces can often be more difficult for children than anyone else involved. As a loving parent, you will want to know that you are doing everything in your power to ensure that they can continue to depend on you regardless of the status of your marriage. If you are experiencing challenges regarding visitation with your child through virtual means, you may need to pursue a legal solution to the problem.

The experienced Monmouth County divorce attorney at The Law Office of Andrew A. Bestafka, Esq. can provide the help you need to make sure that your parenting rights and your children’s best interests are protected. We have helped many parents throughout New Jersey find ways to resolve their custody and visitation issues, and we are ready to do the same for you. Call us today at (732) 898-2378 or contact us via our online form for a consultation to find out what your legal options are.

How Can Social Media Be Used Against Me in My Divorce?

How Can Social Media Be Used Against Me in My Divorce?

How Can Social Media Be Used Against Me in My Divorce?Whether you have already filed for divorce from your spouse or considering it, you likely have major concerns about the process and how to get the most favorable outcome possible. In order to increase your chances, you need to be careful about what you post on social media while you are going through your divorce. You do not want to do anything that will affect your divorce settlement or custody rights.

Why Should I Be Careful with My Social Media Postings?

Divorce is a highly emotional event, and you likely feel the need to vent your anger, frustration, and other emotions. While you may want to post about how you feel on Facebook, Twitter, and Instagram, you have no way of knowing who will see your posts. That’s why it is so important to be careful what you post to your social media account as you navigate your divorce.

The following are ways your spouse and others can use your social media posts against you in your divorce:

  • Hateful or hurtful words can be used against you in a custody battle – Even if you and your spouse can’t agree on anything at all, and even if you believe they are vile and sneaky, you cannot post about that on social media. Remember that the court is always thinking about what’s in the best interest of the child, and having one parent vilify the other will not suggest a healthy environment for the child. You can think of social media accounts as global and permanent. Anyone in the world can view another person’s public profile, and some users can even get around your privacy settings. Even though you may delete the post, it is not gone forever, and another person may have taken a screenshot of the post or saved the information in another way. Furthermore, your spouse’s lawyer can have the court subpoena the social media provider for copies of anything you have posted and then deleted. You want to be extremely careful about what you post, what you say, and how you say it.
  • Spies among former family and friends can carry tales – When you were married, you and your spouse probably had mutual friends. Since the divorce started, you have blocked your spouse from your social media accounts.
    However, the mutual friends you shared with your spouse may still have access to view your posts, and they can relay any untoward information you post about your spouse back to that person and their lawyer.
  • How Can Social Media Be Used Against Me in My Divorce?Reveal financial assets or improper spending – Each spouse is entitled to an equitable share of the marital assets in divorce. However, some spouses intentionally try to hide assets to keep them out of the property division process or go on spending sprees to make sure they get “their fair share.” Furthermore, some spouses may claim they do not have much money when providing their financial statements to their spouse’s attorney, but they then post on Facebook about taking an expensive vacation, buying a new car, or making some other large purchase.
    Do not post anything that makes it appear that you are living the high life if you claim you don’t have much money, and do not post anything that would show or imply that you are trying to keep assets out of the property division process in any way.
  • All texts, posts, and emails can be used as evidence – Although the various social media, email, and other electronic message providers have their own policies regarding a user’s privacy, the court can still subpoena all electronic communication you have made during the divorce process.
  • Lifestyle posts can impact custody issues – If you are trying to gain primary custody of your children, don’t post anything that would make you seem unfit as a parent. Avoid posting about having drinks with your friends, and certainly do not post anything about illegal activity, such as drug use.

As you navigate your divorce, the best advice is to simply not post to social media at all regarding your spouse, your finances, or any other area that can be misconstrued or used against you. It’s best to avoid social media altogether until your divorce is final.

Contact Us

In order to help you through the process, the Monmouth County divorce attorney of Law Office of Andrew A. Bestafka, Esq. is here for you. Andrew Bestafka has extensive experience handling all areas of the divorce process and has achieved a long record of securing favorable outcomes for our clients going through a divorce. Contact us today at (732) 898-2378 or complete our contact form to request a consultation.

Will I Need a New Financial Planner After My Divorce?

A divorce can cause a lot of uncertainty and upheaval in a person’s life. You may be feeling emotionally drained or vulnerable from the process of separating your life from that of your partner. You may also be feeling overwhelmed by the sheer volume of information coming your way. It can feel like there are millions of decisions that need to be made about your finances.

Merging your assets with another person is relatively easy. Separating your assets can be notoriously difficult. During a divorce and especially immediately after, you may need the help of a financial planner to get you back on track. Yet, if you and your partner have been planning your lives together with the help of an advisor, should you continue to rely on that person post-divorce?

At the Law Office of Andrew A. Bestafka, Esq., we want to help answer this question and give you some guidance on when it may be necessary to re-think your financial strategy.

Why Having a Financial Planner Is Important

Planning for the future is never easy. Do you invest? Want to set up a college fund? Need retirement advice? Then a financial planner may be the answer. A financial planner can help you and your spouse plan ahead, manage your money, and stay financially responsible.

financial planning divorceWhen you are going through a divorce, having a trusted financial planner on your side could be even more of an asset. This person can help you navigate paying bills, managing debt, and re-aligning your future goals without your spouse in the picture.

A financial planner may also be vital during a divorce because they often know how to locate all your marital assets. Many financial advisors are experienced in finding overlooked assets such as:

  • Retirement accounts
  • IRAs
  • Insurance policies
  • Property
  • Real Estate
  • Bank account holdings
  • College savings accounts
  • Family Heirlooms
  • Antiques
  • Cars
  • Jewelry

When you are separating from your spouse, you deserve what is fair. A financial planner can provide your attorney with information about the assets that should be considered marital property and are eligible for division.

Is New Financial Planner Necessary After Divorce?

Finding a new financial planner post-divorce can be stressful. You want to feel secure about the direction your finances are headed. To find that sense of security, you want your money to be handled by someone you trust. While you may have a good relationship with your current financial planner, you should consider finding a new confidant following a divorce.

financial planner divorceWhy? The answer can be complicated. When working with a financial planner, you and your spouse are generally both involved in building a relationship with that person. However professional your planner can be, humans cannot avoid forming emotional attachments with one another. Emotional entanglements can result in a bias, even a subconscious one, that may influence how a financial planner treats you after a separation. What if your financial planner remains on excellent terms with your ex-spouse? Will your planner disclose your sensitive financial information to your ex? Will they actively sabotage your new investments?

Of course, these scenarios are extreme. This type of behavior would be unprofessional at best and unethical at worst. However, it can happen. When both partners remain with the same financial planner, it can cause a conflict of interest. To protect everyone involved, it is usually best to find a new financial planner, one with no connection to your partner. You need someone who can give you neutral advice.

Take the time to research financial advisors on your own and set up an appointment with a few different ones. When you find a planner that you feel comfortable working with, do not be afraid to talk about how your divorce has impacted your finances. Be honest about your needs and goals so your new advisor can carve a new path forward for you.

Connect with an Experienced Attorney

Divorce can be challenging. During the process, it can be easy to focus on the now and lose sight of the future. A skilled divorce attorney and a solid financial planner can help you stay on track and make the transition to the next phase of your life a little bit smoother.

At the Law Office of Andrew A. Bestafka, Esq., our Monmouth County divorce lawyer wants to help you secure what is fair. Talk to a compassionate family law attorney today about your situation, and let’s forge a path forward together. You may be separating from your partner, but you don’t have to go through a divorce alone.

Call our office at (732) 898-2378 to set up a confidential legal consultation.


What You Need to Know About Gaining Custody of a Child in New Jersey

What You Need to Know About Gaining Custody of a Child in New Jersey

What You Need to Know About Gaining Custody of a Child in New JerseyThe most gut-wrenching, nerve-wracking, and stressful part of a divorce is the battle for custody of your child. The stakes are incredibly high, and understanding the laws and regulations surrounding child custody requires the help of an experienced family law attorney.

Understanding New Jersey Custody Laws

According to New Jersey Statute 9:2-4 it is in the public interest of the state that both parents of the child share the rights and responsibilities of child-rearing. Under the law, both parents have equal rights to this. Furthermore, it is the job of the court to rule in the best interest of the child.

There are two types of custody that you will need to understand: the first type is physical custody. Physical custody (often also called residential custody) is where the child or children physically live. The second type of custody is legal custody. Legal custody is the ability to make decisions for the child. This includes where they go to school, what their extracurricular activities are, major medical decisions, and religious decisions. Legal custody of a child also gives you access to their medical and educational records.

To win sole legal custody, you must demonstrate, with evidence, that the other parent will not make decisions that are in the child’s best interest.

What Is Taken into Account?

There are many factors that a judge will take into account when making a decision about who gets custody. According to New Jersey Statute 9:2-4 they include, but are not limited to the following:

  • The parents’ ability to agree, communicate, and cooperate with each other.
  • Whether there is any history of a parent being unwilling to offer parenting time to the other parent without reason.
  • The relationship between the child, siblings, and parents.
  • The preference of the child, if they are old enough, will be considered.
  • If there is a history of abuse or neglect on the part of a parent or both parents, it will be evaluated.
  • How well each parent can meet the needs of the child will be considered.
  • The stability of the home a parent would/does provide.
  • The educational opportunities in the home the parent provides.
  • The proximity of the parents’ homes.
  • The behavior of the parents before/during the separation with regard to child care.
  • The employment of each parent and its time demands.

You may note in this list that, unless you are pursuing sole custody as a way to prevent your child from being in a dangerous or abusive situation, communication and collaboration with your spouse is important. Remember that the goal is to create the best possible parenting situation for the child, not ‘win’ your custody case.

Even if you aren’t pursuing full custody, it is helpful to understand these considerations as they will help you develop a plan for co-parenting that is in your child’s best interest.

When Is Sole Custody Granted?

What You Need to Know About Gaining Custody of a Child in New JerseyThe state of New Jersey is motivated to have both parents share responsibility for their children. However, sole custody will be granted if it can be proven that either the parents are unable to communicate, collaborate, and agree on major decisions for the child or one parent is abusive, neglectful, or absent.

If two parents are unable to agree on significant issues like medical care or education, and cannot resolve the disagreement, it is appropriate to seek sole custody. In this case, you must prove that you make better decisions for the child and are more dedicated to acting in the child’s best interest.

Naturally, if one parent is abusive or neglectful, sole custody might be granted. It is important to note, however, that limited parenting time with the abusive parent may still be granted by the court.

How to Present an Effective Case

When you’re thinking about your child and how you parent them, you might have tons of examples in your head about poor choices your spouse made, or things they said that is evidence they should not have custody. While these things matter, memory and ‘he said she said’ doesn’t hold much water in a court. It is critical that you gather evidence. Whether it’s texts, emails, documents, voicemails, attendance records, doctor’s notes, or even notes from friends and family, concrete items are always more powerful and persuasive than just testimony.

Call Us Today

New Jersey custody laws are complex. If you are entering a divorce and subsequent custody battle with your spouse, it is critical that you contact a lawyer. Call the Monmouth County divorce attorneys of Law Office of Andrew A. Bestafka, Esq. at (732) 898-2378 today. We are here to help you fight for your child’s best interest and guide you through all the intricacies of New Jersey child custody law.

How Are 401(k)s Divided in Divorce?

How Are 401(k)s Divided in Divorce?

How Are 401(k)s Divided in Divorce?For many divorcing couples, their 401(k)s and other retirement accounts are usually some of their most valuable assets. Retirement accounts (or at least a portion of the value of those accounts) are considered part of a couple’s marital estate subject to distribution between the spouses in divorce. But due to the complex tax laws governing 401(k)s and other tax-advantaged retirement accounts, dividing these accounts in divorce often becomes one of the most difficult and contentious parts of any divorce proceeding.

How the Value in a 401(k) Is Split in a Divorce

Generally, all funds that spouses contribute to their 401(k) or other retirement accounts during their marriage are considered marital property and are subject to equitable distribution. For example, if you make $250,000 in contributions to your 401(k) during the period of your marriage, that $250,000 will likely be considered marital property. In addition, any growth in the value of the account during the marriage may also be considered marital property that can be equitably divided.

Unlike other states that use an equal distribution approach to dividing marital property, New Jersey uses an equitable distribution approach. This means that courts are not required to divide marital assets 50/50. Instead, courts will seek to divide the couple’s assets in a way that seems equitable, or fair. In deciding on a fair division, courts consider factors such as the respective financial situations of the spouses, each spouse’s earning capacity, the standard of living during the marriage, and the length of the marriage.

The Effect of Prenuptial/Divorce Settlement Agreements

How Are 401(k)s Divided in Divorce?Of course, spouses may decide to treat their 401(k)s and other retirement accounts differently from the standard equitable distribution rules. For example, spouses may execute a prenuptial agreement prior to marriage, or a marital settlement agreement immediately prior to or after filing for divorce. In this agreement, spouses may expressly waive any rights they may have under the law to the funds contained in their spouse’s retirement accounts. Or spouses may agree on how to divide their retirement funds, rather than letting the court decide what an equitable distribution would be.

Will You Have to Pay Your Ex Funds from Your 401(k)?

If your 401(k) or other retirement accounts are subjected to equitable distribution in divorce, does that automatically mean you will have to pay funds to your ex from your accounts? Not necessarily. If your and your ex’s retirement accounts have roughly similar values, you both may agree to simply keep your own accounts, or the court may rule that allowing you both to keep your own accounts achieves an equitable distribution of the marital estate.

But where one spouse earned significantly more or contributed more to their retirement accounts during the marriage, the court may decide that the other spouse is entitled to a portion of the value of that account. When that happens, funds will have to be paid from the account(s) of the higher-earning spouse. Of course, many types of tax-advantageous retirement accounts, such as 401(k)s, are subject to rules that prohibit the withdrawal of account funds prior to retirement or prior to the account holder reaching a certain age. Early withdrawals may make the account holder liable for penalties or significant taxes.

A spouse that receives a portion of their ex’s retirement accounts may take the funds in one of several ways:

  • If the recipient spouse has their own 401(k), IRA, or another similar account, they may choose to directly roll over the funds they receive into their account. Doing so can ensure that neither you nor your spouse is held liable for any penalties or taxes for early withdrawal.
  • The recipient spouse may choose to defer receiving any funds from the account until their ex retires.
  • The recipient spouse can immediately cash out their portion of their ex’s account by taking a lump sum distribution. While penalties for early withdrawal may be avoided, the recipient spouse will still have to pay income taxes on that distribution.

If a portion of your 401(k) or other retirement accounts are distributed to your spouse in divorce, you will need a court order known as a qualified domestic relations order, or QDRO to avoid the penalties and taxes that come with early withdrawals. The QDRO authorizes the administrator of your retirement plan to pay money to your spouse according to the terms of the order, without any penalty to you for withdrawal.

Contact Us for Help in Resolving Issues with Your Retirement Accounts During Divorce

If you are seeking a divorce and have questions about how your and your spouse’s 401(k)s and other retirement accounts will be divided in your divorce, call the Monmouth County divorce lawyers of the Law Office of Andrew A. Bestafka, Esq. today at (732) 898-2378 or fill out the contact form on our website for a confidential consultation. An experienced divorce lawyer from our firm can help you understand your rights and options when dividing your retirement accounts during divorce.

Can I Text My Child When They Are with My Ex?

Can I Text My Child When They Are with My Ex?

Can I Text My Child When They Are with My Ex?The rise of cell phones has put a new and unique spin on custody agreements. In an age when it seems everyone has access to a cellphone, even children, what are the rules that separated parents need to play by? It can be hard to know what is and isn’t acceptable behavior when it comes to texting and messaging your children when they are with your ex-partner.


Before you hit send on your text message, consider talking to an experienced family law attorney first. At Law Office of Andrew A. Bestafka, Esq., we can review your custody agreement and advise you on what may or may not be acceptable communication. In short, can you text your child? Yes. Are there instances where texting could interfere with your custody arrangement? Potentially, yes. In the meantime, consider some of these points when texting with your children when they are not with you.


Respect Everyone’s Time 


If you are following a court-ordered custody agreement, chances are you have quality time with your kids, and your partner has theirs. While it is perfectly normal to want to know how your child is doing and what they are up to, try to be respectful of your ex-partner’s time. Too many calls or text messages could begin to interfere with their custody time and put a strain on your ex-partner’s relationship with the kids. In effect, this can put even more of a strain on your relationship with your ex. It also has the potential to trigger another court appearance.


Do Not Message Your Child About Your Problems 


Can I Text My Child When They Are with My Ex?If your child is with their other parent, resist the urge to use your child as a go-between. A child is not a tool or communication device. Do not text your child telling them to tell your ex something. If you need to get in touch with your ex about something, use the appropriate means of communication.


In the same vein, do not text your child while they are with your ex-partner about your problems or issues. Never send degrading, mean-spirited, or hurtful messages about your former partner or their parenting style. These text messages can sour your child’s relationship with their other parent. They can also cause the courts to reexamine your custody arrangement. While messages can be deleted, the data is not gone forever. Never send harassing, obscene, or angry text messages, ever.


Consider a Communication Schedule 


Every parent worries about their child when they are not in plain view. If you are anxious about being separated from your child, talk to your ex-spouse about a communication schedule. Agree on setting aside some time each day for you to communicate with your child through calls, video conferencing, or texting. A calling or texting schedule can help you feel more at ease about the custody transition. It may also help ease tensions between you and your ex since you each know what to expect, and there are no surprises.

Related Post: Does Facetime Count as Visitation?

Do Not Tamper with Your Child’s Phone 


If you miss your child and want to stay in contact with them while they are away, think about how your ex-spouse feels. They may also want to text message their child. Never tamper with your child’s phone while they are in your custody. Do not delete messages or calls, and do not remove the phone’s battery, rendering them unreachable.


Don’t Put Your Child in the Middle 


If you are having issues communicating with your child, or need to reach your ex about a particular issue and are finding it difficult, talk to your lawyer. Do not put your child in the middle of a cell phone dispute or turn them into the go-between. Reach out to an experienced family law attorney and lay out your issues. If you have evidence of harassing messages, ignored calls or messages, or other communication problems, your attorney can help you sort them out.


In some situations, communication problems may result in another court appearance or a modification to your custody agreement. Protect yourself and your child and get an attorney involved as soon as you feel something isn’t right.


Contact a Highly Experience Family Law Attorney Today 


You have the right to communicate with your child. However, your ex has the right to a relationship with their child as well. Navigating custody agreements and communication issues in the age of cell phones is challenging. It often means striking the right balance between disinterested and overzealous.


If you need help managing custody or communication issues post-divorce, talk to a skilled family law attorney today. The office of Law Office of Andrew A. Bestafka, Esq. can help you pursue a positive outcome for your situation. Call us at (732) 898-2378 right away.

What Determines Child Custody In New Jersey?

What Determines Child Custody In New Jersey?Divorce is unpleasant enough for all parties, but it can be twice as hard when there are children involved. Child custody discussions are never enjoyable, but there are ways to make the process flow as smoothly as possible.

Custody and Support

In New Jersey, child custody is handled separately from child support. Support is based upon many factors, including the earning ability of the parents, the number of children, and the standard of living.

When custody, or visitation, is determined under New Jersey law, and there are fourteen enumerated factors a judge must consider. These factors include:

  • Each parent’s ability and willingness to communicate with the other and to encourage a healthy relationship between the child and the other parent
  • Each parent’s ability to provide a safe, stable home environment
  • The child’s relationship to each parent and to their siblings
  • Each parent’s geographic location relative to the other and to the child’s school and friends
  • The child’s own preference
  • Any history of domestic abuse

In New Jersey, as in all states, the judge must consider the best interests of the child first and foremost. The old “maternal preference” no longer applies in custody cases, except in instances of infants.

Other Considerations

The parent who has primary physical custody of the child is the “custodial parent.” This refers to the parent with whom the child spends the most time, even if only by one day. The other parent is the “non-custodial parent.” These terms principally have to do with the child’s address.

When a parent is granted “legal custody,” that means they are responsible for making decisions involving the child’s medical, educational, religious, and other activities. Unless there is a compelling reason not to do so, courts award parents joint legal custody. This means that both parents have an equal right to make decisions about their child and should consult one another before making important decisions.

In all but the most extreme cases, courts award physical custody to both parents equally. The court will try to grant custody with the minimum possible disruption to the child’s routine. Typically, parents find it expedient to trade weeks, which lets the child maintain their school and social schedule without too much alteration.

In unusual situations, such as when a parent lives a long way from the other, then the parents and child can make alternative arrangements. For instance, the child may spend the school year with one parent and summers and holidays with the other.

When Parents Agree

What Determines Child Custody In New Jersey?Ideally, parents understand that the custody arrangement must be whatever is best for the child. It may not be the best option to have two separate bedrooms and two separate homes every other week. If both parents are agreeable to different arrangements, they may create any setup they like.

The court has to step in only when parents cannot or will not agree.

When the Child Disagrees

A child’s opinion is considered by the court under certain conditions. The judge must consider the child’s mental age and emotional status. A child under eight is presumed to be too young to state a preference, although family court judges will often agree to speak to the child privately to ensure they understand what is happening.

Between the ages of 9 and 17, a child may make a preference known. Although the judge is not bound to follow it, there should be consideration given. A child who says they want to stay at their mom’s during the week because the downstairs neighbors at their dad’s place are so loud that studying is impossible is making a good point.

When a child suddenly refuses to abide by a custody agreement, it could be a sign that something is wrong. There may be problems with one of the parents, such as abuse or neglect, or one parent may be attempting to alienate the child’s affections for the other parent. Or it could have nothing to do with either parent. Parents and judges should avoid jumping to conclusions in these situations.

Final Determinations

Parents can amend their custody agreements as their lives change. As children get older, their needs for parental support change, their interests and friends change, so the time they spend with their parents will be different.

When this happens, parents should consult their attorneys about having an amendment added to the original agreement. This protects everyone’s interests and prevents anyone from claiming later that they never agreed to alterations of visitation, vacation plans, or other major changes.

If you’re contemplating divorce, or if you’ve already divorced but are having difficulties with the custody arrangements previously made, call Law Office of Andrew A. Bestafka, Esq. at (732) 898-2378 today. We are experienced in all things related to child custody, and we will advise you about your legal options. Don’t suffer through these difficult times alone. Our child custody attorneys stand ready to take on your issues and help you do what’s best for your kids.

How is Property Division Determined in a New Jersey Divorce?

How is Property Division Determined in a New Jersey Divorce?

How is Property Division Determined in a New Jersey Divorce?Are you currently going through or thinking about filing for divorce in New Jersey? Are you wondering how marital property is divided by the court? New Jersey is an “equitable division” state, which means that the court will try to divide the marital property in a fair or equitable way, depending on the circumstances of the couple.  This is an important aspect of a divorce and can be quite complex. The Law Office of Andrew A. Bestafka, Esq. has been dealing with property division issues in divorces for more than a decade.  For help, call (732) 898-2378. You’ll talk with a knowledgeable divorce attorney who can make the difference between a good property settlement and a bad one.

Why You Need an Attorney to Help with Property Division in a Divorce

It is crucial to have an attorney who knows New Jersey divorce law and understands the nuances of how marital property is divided by the court. Whether negotiating a favorable agreement out of court or arguing before the court in a contested hearing, an experienced attorney knows what needs to be done to get the best outcome for you and how to do it.

An experienced attorney also knows the factors the court will be looking at to make its decision and which arguments will best cover each of them.  Another important element in dividing marital property is establishing an accurate value for the property. Knowing how to present favorable evidence to the court regarding value is complicated. If you don’t have a skillful attorney to represent you, you’ll be at a huge disadvantage and are unlikely to get the property division you want in court.

Why Choose Law Office of Andrew A. Bestafka, Esq.?

Law Office of Andrew A. Bestafka, Esq. has practiced exclusively in the area of family law since 2008. Mr. Bestafka grew up in Monmouth County, New Jersey, so he knows the area and the people well.  Law Office of Andrew A. Bestafka, Esq. has been named one of the ten best Family Law Attorneys in New Jersey by the American Institute of Family Law Lawyers. This award is prestigious and takes into account not only client satisfaction but also the respect of his peers in the legal profession. He also has served on the Family Law Committee for both the New Jersey State Bar Association and the Monmouth Bar Association. Law Office of Andrew A. Bestafka, Esq. and his associates take great pride in helping families through one of life’s most difficult challenges.

Law Office of Andrew A. Bestafka, Esq. fights to get the best outcome possible for each and every client. Law Office of Andrew A. Bestafka, Esq. is caring, compassionate, and attentive to the needs and wishes of their clients. Mr. Bestafka and his associates are experienced in family law and will help you get the best outcome possible under the law. Your financial future after your divorce will be significantly impacted by how the court divides marital property, so it is important to choose outstanding legal representation, such as Law Office of Andrew A. Bestafka, Esq..

Factors in New Jersey Marital Property Division

How is Property Division Determined in a New Jersey Divorce?New Jersey law directs the court to divide property “equitably.”  This means your marital property may not be divided 50-50.  The court’s decision depends on several factors. Two of the most important factors are the income and earning capacity of each party and who has primary custody of the children, if children are part of the divorce. The court also looks at how and when assets were acquired and the contribution of each spouse. This contribution can be financial, but it can also be household chores such as cleaning and cooking.  New Jersey Courts also consider whether one spouse helped the other to get through school and earn a degree and if they may have delayed their own education in doing so.  There are many other factors the court can consider that your attorney can discuss with you.  The exact factors depend on your circumstances.

New Jersey honors pre-nuptial agreements, if one was executed prior to the filing of the divorce.  A pre-nuptial agreement is a contract or agreement between the spouses that divides property ahead of time should the parties divorce at some point. If you have questions about pre-nuptial agreements, it is a good issue to bring up during your initial consultation with your attorney from Law Office of Andrew A. Bestafka, Esq..

Marital property may include obvious things like cars and real estate, depending on when and how they were purchased.  But it also includes such things as retirement accounts, investments, pets, and even frequent flyer miles and cryptocurrency.  Your situation is unique, which is why there is flexibility built into the “equitable division” decision the judge makes.

If You Are Going Through a Divorce, Call Us

Division of marital property in a divorce is complicated, and it is very important to your financial future. Law Office of Andrew A. Bestafka, Esq. is an experienced, respected firm that will aggressively pursue the best financial outcome that New Jersey law allows in your case.  Call (732) 898-2378 today to schedule an initial consultation and discuss your circumstances with us.