(201) 592-7767 (James Caporrino)

(201) 242-9666 (Andrew/Jill Park)

Wish商品总是被起诉? 律师教你检查产品是否侵权!

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最近,越来越多的wish店铺因为侵权被冻结账户,很多卖家都人心惶惶的。从一开始因为仿冒产品被告,到现在很多产品因为一些设计被告,可以肯定的是,很多知识产权律所以及卖家都已经盯上了wish上的卖家们。与其在被告后再花费大量律师费进行和解诉讼,最好的结果是提早进行防范。其实,不仅仅是英文不是第一语言的中国卖家一直在知识产权这块栽跟头,很多欧美的初创公司和大公司也没有少吃知识产权的苦头。

那么,下面安朴律师事务所就为大家支支招,如何检查自己的产品是否侵犯了美国的知识产权法:
知识产权主要分为三大类:商标、专利和著作权。而在跨境电商中让卖家们吃尽苦头的主要就是商标侵权。商标,可以是文字、图案或者是文字和图案的结合体,任何能够让消费者识别产品、服务的显著标志都属于商标。比如,耐克有名的对勾图案,以及“NIKE”这个词,都属于商标。很多人不知道的是耐克著名的广告语“JUST DO IT” 也是注册在案的商标。如果你正在售卖的产品上有这句话,你在不知情的情况下,也已经侵犯了nike的商标。
 
文字商标:在所有的商标中,文字商标是属于最容易进行检索的一类。以下基本步骤供大家参考:
1. 找到美国知识产权网站 https://www.uspto.gov/
2. 在右上角 Quick Link中,点击放大镜TESS
3. 点击第一个选项: Basic word mark search后,输入需要检索的文字商标就可以。
大家可以看到,有的时候不仅仅是Lego, Ray-Ban这种牌子会侵权。我们输入了一个很常见的词汇“You are beautiful”,就出来几十个已被注册的商标,其中还包括“You are more beautiful nude”。可以说欧美各国人民真的是很有创意,然后也很非常喜欢注册商标。如果这时候,你售卖的化妆袋或者电话壳上有这样的语句,就很有可能会被起诉侵权。
Trademark check
You’re beautiful Search
文字商标和图案商标相结合:
这类图标也是比较好检索的。如果你看到一样潜在商品,但是不确定是否存在知识产权侵权的风险。可以在USPTO的网站上,注入商标中的文字,如果商标有被注册过,一样是可以找到的。
1. 找到美国知识产权网站 https://www.uspto.gov/
2. 在右上角 Quick Link中,点击放大镜TESS
3. 点击第三个选项: Word and/or Design Mark Search (Free Form) 后,输入需要检索的文字商标就可以。这类检索出来的结果会比较多,你可以选择每页显示100、200、300、400或500个结果。我一般会选择显示500个结果,然后再用Ctrl+F,对网页进行第二次搜索。
图案商标:图案商标的检索会稍微复杂一些,一般正规彻底的排查需要雇佣专业的知识产权律师来做。但是如果你刚刚起步,没有经费的话,也可以试着先自己进行初步排查:
1. 找到美国知识产权网站 https://www.uspto.gov/
2. 在右上角 Quick Link中,点击放大镜TESS
3. 在页面中点击第三个选项中的 Design Search Code Manual
4. 再点击第三个选项: Word and/or Design Mark Search (Free Form)
USPTO 并没有非常非常前沿的图片检索技术,他们对图案进行识别的方法主要是对图案进行编号。而在第三步中我们所打开的 Design Search Code Manual 就是他们的编号字典。比如,PUMA的商标是一匹马,如果你在不了解PUMA商标的情况下,想要查询这匹马是不是注册商品,就可以到编号字典里找到马的对应编码,然后输入到搜索栏里,那么你就可以看到所有有马元素的注册商标。
搜索图片商品会比文字商标繁琐很多,除了在官方的网站进行搜索以外,还有一个很简单好用的小技巧,就是通过谷歌图片搜索,然后查看图片网页以及来源,判断是否侵权。这毕竟适用于传播率比较高,比较知名的图案商标。https://images.google.com/
 
另外,值得注意的是,大家再找到相似的商标之后,还要注意该商标是否依旧有效,在USPTO的网页上,如果标注为LIVE即为有效状态,DEAD则为终止状态。如果商标有效,大家可以再进行判断,看其所申请的类别是否与你的产品相同。
像我们刚刚进行搜索的商标“ YOU ARE FUCKING BEAUTIFUL”的注册类别就是衣服-T恤。如果你想把这个词组用在手机壳上,哪怕是一样的句子,也不会构成侵权。

安朴律师事务所立志于帮助客户取得最满意的结果。我们有超过25年的诉讼经验。我们希望这篇文章能够对您有所帮助,如果您有其他关于商标侵权诉讼的疑问,欢迎随时联系我们,我们会在下期专栏中回复您的疑问。您可以拨打我们的热线(201)424-9666或发送邮件至aip@ParkCaporrino.com.

以上文章不构成法律意见。

如果您需要专业的法律意见,请联系我们进行咨询。

转载请注明出处

安朴联合律师事务所

Wish账号被冻结,收到起诉书? 卖家应如何应对。

Sorry, this entry is only available in 中文. For the sake of viewer convenience, the content is shown below in the alternative language. You may click the link to switch the active language.

在短短的几个月内,安朴联合律师事务所就收到了许多中国wish卖家因为商品商标侵权账户被冻结的信息。除了一些众所周知的大公司,包括Apple,Disney,Pandora和Lego以外,一些并不那么知名的公司也对wish平台上的侵权产品提出了诉讼,比如,hand and nail harmony指甲油产品,Frisbee飞盘玩具,Ideavillage Products Corp的含铜护膝产品,Dewalt得伟电池,PHLAT BALL(减压玩具球),瑞士军刀(十字架商标),Peppa Pig小猪佩奇,Shopkin玩具, RAINBOW LOOM彩虹织机, 指尖猴子,Brian Flakes雪花片,指尖陀螺以及今年刚刚完成商标注册的off white等等。

随着wish平台的知名度越来越高,这些品牌厂家也发现了在wish平台上的假冒侵权产品。我们发现有几家知识产权律所 ( Epstein Drangel LLP, Keith, RedPoints, GBC, Holihan Law, Blakely Law Group, SMG, Marshall, Gerstein & Borun LLP 等)在这几年更是专门处理wish平台的商标侵权的案子 – 一个案子就多达几十甚至上百个被告:其中大部分都是中国卖家。在这类案件中,和之前的eBay侵权案件很相似的是,中国卖家的Wish账号会先被封,随后账户里的资金会被冻结:小则几万美元,多的更是高达几十万美元,然后在账户被封以后,卖家在wish平台所留的邮箱才会收到来自原告律师的起诉状。

Wish Seller
Wish Seller

如果你的店铺也不幸中招了,你能采取什么补救措施呢?安朴联合律师事务所将在这儿就客户经常问的几个问题进行回答,希望对wish店主们能够有所帮助。

1. 起诉书上要求被告在21天内进行回复,一定要进行回复吗?

一般来说,在美国提起诉讼,原告需要面临的第一个问题就是找到被告! 只有原告成功地按照法律所接受的方式通知到了被告:你在某某法院被起诉了,法院才会进一步处理这个案子。为了保证被告的利益,法律对这个步骤有严格的规定:大部分送达都需要由与案件无利害关系的送件人亲自送达或递交给与被告共同居住的人。但是在这些案件中,因为被告人大多都为国际卖家,原告特地向法院申请了送达动议:要求法院同意原告通过邮件进行送达。从安朴联合律师事务所经手的wish案子来看,法院也同意了原告的这个请求。

因此,原告向被告发送电子邮件后就会被法院认为是送达成功了。送达成功后,法院就会认为被告已经知道自己在某法院被起诉了。如果被告不进行回复的话,法院就会认为被告是自行放弃了辩护的权利。

2. 如果我不进行回复会怎么样?

送达成功后,如果你不进行回复的话,原告有权要求法院缺席判决。法官会根据原告所提交的诉求和证据进行判决,因为缺少抗辩,一般缺席判决对被告来说都会比较不利。拿到判决书之后,原告可以要求wish对账户里的余额进行执行。对于很多中国卖家来说,有时候并冻结的余额数目并不是很大。那么放弃抗辩可能从经济效益上来说,对自己更为有利。但是需要注意的是,放弃抗辩之后,原告有可能可以要求法院进行缺席判决,从而拿到数目较大的判决书。跨国的判决书执行起来难度非常大,中国鲜少有帮助美国民商事裁决进行执行的先例。但是,值得注意的是,在2017年9月,作为中国首次, 武汉市中院根据互利互惠原则裁定承认并执行美国加利福尼亚州洛杉矶县高等法院所作判决。未来中国法庭是否会执行美国判决,现在也难以确定,会取决于未来的中美关系以及中国的政策。

  3.原告律所知道我的wish账户的冻结的金额吗?

我们认为原告知道。在提起诉讼后,原告可以向wish平台发送信息披露的请求,要求原告披露账户余额以及账户销售数字等等。但是根据我们的经验,很多时候,wish 后台给出的数字未必是100%准确的。因此,我们强烈建议卖家在收到起诉状后,对自己的销售金额进行尽可能准确的统计。这样,在之后的和解过程中,可以避免不必要的延误。

   4.原告律所知道我具体销售了多少货物吗?

像我们刚刚提到的,从安朴联合律师事务所经手的wish案子来看, 原告会从wish后台调取数字。我们建议卖家也另外进行统计,以防wish的数字有错误。

    5.诉讼还是和解?

大部分的wish、ebay平台的商标侵权案件都是以和解而告终。安朴联合律师事务所的律师认为主要有两个原因: 1,其实不仅仅是wish、ebay的侵权案子大多以和解而告终,大部分的案子都是以和解结尾的。因为诉讼的费用非常高昂,不仅仅是被告,大部分的原告也不愿意支付按小时计算的高昂的律师费。在这类案件中,原告的主要目的是让侵权产品下架,并警告其他侵权卖家。所以,在递交起诉状,冻结卖家账户后,他的目的已经大致都达到了。因此,原告也会乐意进行和解。第二,而对被告来说,如果是非常明显的商标侵权的话,选择诉讼对被告并没有特别的优势。不如尽快与对方和解,节省时间和金钱。当然,这不是说所有的案子都应该只谈和解,不谈诉讼。在事实并不充分支撑商标侵权的前提下,如果原告蛮不讲理,漫天要价的话,被告的账户若是被冻结了很多货款,我们建议个案分析,可以考虑选择诉讼。

6.一般需要多久才能够处理完?

这是律师最常被问到的问题。我们的回答,客户都不太喜欢,因为我们的回答都是:要看情况而定。不计入客户准备材料(销售数字,店铺冻结金额,产品成本,店铺运营成本等)的时间,如果对方回复非常迅速的话,大概可以在2-4个星期之内顺利和解。但是现实生活一般都不会如此顺利,卖家提供给律师的数字会和原告律师的有出入,或者原告律师回复地速度比较慢,或者原告律师又心血来潮想要看其他数据等,这都是我们经常碰到的事情。一般来说,1-2个月的时间线是比较常见的。

7.一定要做的和一定不要做的!

在收到起诉状后,请尽快联系律师。收到邮件后,卖家将有21天的时间对其进行回复。我们有的客户会等到20天的时候才来和我们联系,这会导致我们非常被动。如果一不小心错过21天的截止日期的话,后果可能会非常严重。请不要在没有仔细考虑地情况下,回复对方的任何问题。有许多的中国卖家傻傻以为只要道歉了就没有事情了。我们碰到过一个卖家,在收到起诉书后,回邮件给原告律师说,自己只是想赚一点生活费,以后再也不会做违法的事情了,希望对方可以解冻店铺。这封邮件等于说是间接承认了卖家明知道卖这类产品是违反法律规定的: 故意侵权行为,根据美国法律规定,原告可以要求被告支付惩罚性赔偿。这样的邮件对被告是非常不利的。另外,原告律师通常会询问被告店铺是否同属于一个公司,这些问题都需要据实回答,但是不同的答案都会对和解的金额有非常大的影响。我们希望卖家们在进行慎重地考虑后再进行回答,不要擅自在没有理解对方问题的情况下回复,或因为自身的利益而回复虚假信息。

 

安朴律师事务所立志于帮助客户取得最满意的结果。我们在商标诉讼领域有超过25年的诉讼经验。我们希望这篇文章能够对您有所帮助,如果您有其他关于商标侵权诉讼的疑问,欢迎随时联系我们,我们会在下期专栏中回复您的疑问。您可以拨打我们的热线(201)424-9666或发送邮件至aip@ParkCaporrino.com.

 

以上文章不构成法律意见。

如果您需要专业的法律意见,请联系我们进行咨询。

 

转载请注明出处

 

安朴联合律师事务所

Cannot locate my spouse, can I still file for divorce?

 

Cannot locate my spouse while filing for divorce? Can I still file for divorce while lost touch with my spouse? The answer is absolutely yes. The law maker has designed a specific process for serving a missing spouse. Even though the process may take a little longer.

When it comes to divorce, many people choose to escape from the unhappy marriage rather than engaging in the divorce proceeding. This might be troublesome for the other party as they cannot properly serve the complaint and summons. One of our client’s husband left the children and the wife for more than 3 years without a single message. The wife completely lost contact with the husband. She has to work to pay for the mortgage and take care of the children at the same time. During the three years, the wife was not able to sell the house or refinance the mortgage because the paperwork requires husband’s signature. Also, The wife was not able to take the children to Korea because application for passports also requires both parents signatures.  It was through publication that the wife finally got the divorce judgment and an order enable the wife to refinance the mortgage on the house. In this article, we will discuss the divorce proceeding that applies if you cannot find your wife or husband.

File Complaint

To start the divorce proceeding, one party needs to file the divorce complaint with the court. To file a complaint, the current address of your spouse is usually required. But if you cannot find your husband/wife, you can state “unknown” on the paperwork. Experienced attorneys will explain your situation in detail in the complaint to put the court on notice that additional steps may be necessary for your case to proceed.

Serving the Summons and Complaint via Publication

After filing with the court, New Jersey Law requires the plaintiff to serve the summons as well as the filed complaint with the defendant. This process is usually referred to as “service”. Services gives court the jurisdiction over the defendant and enables court to make decisions on issues related to the divorce, such as property division, child support and custody, alimony, etc.

New Jersey allows services through Publication once you prove that you’ve exhausted all the possible methods to locate your spouse. New Jersey Court Rule 4:4-5. (Summons; Service on Absent Defendants; In Rem or Quasi In Rem Jurisdiction)requires a diligent inquiry to be done before allowing the service by publication.  Based on our experience, diligent research usually includes, but not limited to:

  1. Contacting your spouse’s relatives, friends and employer;
  2. Internet Search
  3. Conduct a search of the Division of Mortor Vehicle;
  4. Mitilary Search

After conducting all above-mentioned methods, you may file a motion with the court for permission to serve your spouse by publication. Once it’s granted, you need to place a legal notice in local newspapers in the area where your spouse last resided. Detailed requirement will be specified in the court order.

Enter Default Judgement

Once you finished the publication and your still cannot locate your spouse, you can proceed to enter default judgment. You will be required to make appearance at the default hearing. The judge will ask you some basic question about your divorce. The judge is also likely to raise questions regarding your attempts to find your spouse. after the default hearing, the judge will issue the Final Judgment of Divorce.

Park & Caporrino has a strong record of obtaining favorable result to our clients. We have over 25 years of experience in family law in  New Jersey and New York, with a mission to protect what our clients value most. We sincerely hope that you find this article useful, if you have any questions or suggestion regarding our columns, please feel free to email our office at jsp@parkcaporrino.com and aip@parkcaporrino.com or contact us at (201) 242-9666.

Above article is for general guidance only.


Park & Caporrino, LLP
Attorneys at Law.
Licensed in New York and New Jersey

 

Prenuptial Agreement, do you need one?

An opinion about Prenuptial Agreement from an experienced family attorney 

Prenuptial Agreement, do you need one? Many of my clients would ask me that whether it is necessary to get one from an divorce attorney’s perspective. Before I state my personal opinions, I just want to share with you that based on a national survey,  around 50% of marriage end up in divorce, which means 1 out of 2 couples end up in divorce. As a divorce attorney, I have witnessed countless lengthy divorce filled with nasty fights over properties separation and alimony issues, etc that were disastrous to both parties lives. Personally, I will recommend prenuptial agreement  – Just like we all have insurance for cars and houses, why shouldn’t we get an insurance for our marriage. You will definitely be better protected with an prenuptial agreement.

Click to read more about prenuptial agreement and family law
prenuptial Agreement – Park and Caporrino Law Office

What if your fiancee/fiance does not want Prenuptial?

It is common that one party wants the prenup and the other party strongly oppose the idea. It is important to understand just like contract, prenup can be tailed in a way that protects both parties’ interest. I would recommend both parties talk to different attorneys prior to make their decisions. Experienced attorneys assist you in analyzing your situations and help you make a better-informed decision.

What can be inculded in Prenuptial Agreement?

Prenuptial agreement can help you protect premarital assets or even your income during marriage. Here is a list of items that can be regulated by Prenuptial Agreement, not in violation of law:

  1. The ownership of pre-marital assets including but not limited to real properties, stocks, trust account, investment accounts, savings, vehicles and business etc.
  2. Assets values
  3. Amount and terms of Alimony in case of divorce

What can NOT be included in Prenuptial Agreement?

  • Decision regarding child custody and child support.

In New Jersey, when it comes to child custody, the court will always make the decision based on the child’s best interest. Any clause regarding child custody or child support will not be enforceable in later divorce proceedings.  

  • Non-financail matters

Prenuptial agreements are designed to address financial issues. Judge often views prenuptial agreement regulating private matters frivolous, thus strikes them down as unenforceable. For example, we once had client who is a single mother going to get married soon. She wanted to included in the prenuptial agreement that the future husband has to spent at least 2 days a week with her daugher from last marriage. This kind of terms do not address financial issues, thus should not be included in the Pren-up.

  •  Provisions detail anything illegal

Although it may be obvious that prenup should not include anything that is illegal.  I still want to emphasize it since illegal terms may render the whole agreement invalid, thus unenforceable.  

Who should definitely get a Prenuptial Agreement?

We strongly recommend you to obtain a Prenuptial Agreement if following  senarios applies to you.

  1. You have significantly more assets than your future spouse
  2. You are going to earn significantly more than your future spouse
  3. You anticipate to receive a significant amount of inheritance or gift.
  4. You are beneficary of a trust/ trusts.
  5. You have significant debts/ You are marrying someone with significant debts
  6. You own a business
  7. There is child from prior marriages.

Marriage, as an important decision in life, can have a huge impact on your personal life as well as your financial and legal situation. It is important that you understand possible risks and all your options before you make any decisions.

Park & Caporrino has a strong record of obtaining favorable result to our clients. We have over 25 years of experience in family law in  New Jersey and New York, with a mission to protect what our clients value most. We sincerely hope that you find this article useful, if you have any questions or suggestion regarding our columns, please feel free to email our office at jsp@parkcaporrino.com and aip@parkcaporrino.com  or contact us at (201) 242-9666.

Above article is for general guidance only.


Park & Caporrino, LLP
Attorneys at Law.
Licensed in New York and New Jersey

 

DWI/DUI Cases

The first question asked by many of our clients is: “What is the difference between DWI and DUI?” The answer is they are the same thing. In New Jersey, the legislature named the drunk driving statute Driving While Intoxicated, whereas in many other states the statute is called Driving While Under the Influence. Either way, it is the most serious motor vehicle violation a person can be charged with because of the potential for extended driver’s license loss and/or a jail sentence. Unfortunately, every significant change in the DWI laws in New Jersey over the past 30 years has been to increase the penalties and/or make it more likely for a DWI arrest to result in a DWI conviction.

To make matters worse, unlike most traffic and criminal charges that are handled in the Municipal Courts, the New Jersey Supreme Court has made it illegal for prosecutors to plea bargain in DWI cases. For that reason, anyone charged with DWI needs to be sure that they have a seasoned, educated and experienced defense attorney. Unlike many other violations, such as speeding, in order to properly represent his client a lawyer must do more than just ask the Prosecutor for a good deal for his client. DWI cases are for this reason more likely to proceed to trial than any other traffic code violation.

Since DWI is prosecuted with highly technical evidence, usually involving the results from highly sophisticated alcohol testing devices, either the traditional Breathalyzer machine or the newer computerized Alcotest machines, a successful defense of a DWI charge is typically a highly technical defense. New Jersey law says that if you operated a motor vehicle at a time when an alcohol testing machine says you had a blood alcohol concentration level of 0.08% or higher, and those results are admitted into evidence, then you are automatically guilty. For this reason, our defense strategy usually begins with the review of the evidence and testing data by a widely recognized expert in New Jersey State Police alcohol testing procedures. Many of our successful outcomes have resulted from one of our retained experts uncovering an issue with the testing equipment, the officer’s credentials and/or the testing procedures that result in the Court ruling that the test results are inadmissible. That is the first step in getting a dismissal or an acquittal for our client.

Even though a DWI charge is considered a motor vehicle offense, rather than a criminal offense, the penalties, even for a first time offender, can include jail time and a minimum mandatory license suspension of 7-12 months. That, combined with the prohibition against plea bargaining, makes DWI cases amongst the most challenging that any lawyer can handle. In addition, between Court fines, State Insurance Surcharges and premium increases by your automobile insurance carrier, a DWI conviction can easily result in $10,000.00 in fines and increased costs over the three year period following a conviction.

Our firm has made a commitment to remaining at the leading edge of the ever evolving field of DWI defense law, and we continually work to maintain that edge so that our representation can make the difference between a client keeping or losing his or her driver’s license. Our experience in this rather intense sub-specialty of the law and our dedication to obtaining the best possible outcome in all cases makes us quite effective in defending our clients. If you were to talk to our prior clients, we think our track record would speak for itself.

If you have been charged with a DWI, contact us right away for a no-fee telephone consultation, and decide for yourself if you agree that our lawyers are on the top of their game when it comes to counseling and educating our clients in this complex area of law and defending people arrested for DWI.

Dividing Marital Wealth and Assets in New Jersey

There are two types of marital asset distribution in the United States: 1. Equitable Distribution, 2. Community Property Distribution. New Jersey applies the Equitable Distribution law. This means that rather than splitting all marital assets 50-50, the courts look at the level of contribution each individual has put into obtaining the marital assets.

New Jersey follows a three-step procedure to distribute a couple’s assets. First, the courts determine which assets are subject to distribution, including marital home, bank accounts, debts, stocks, pensions, etc. In general, marital asset is defined as assets obtained by either spouse beginning on the date of marriage. Assets acquired prior to marriage by either spouse may not be subject to distribution in New Jersey and the individual that acquired the asset in question may keep the asset. However, if the other spouse assisted in developing and maintaining the asset in question, the court would distribute the increase in value of the asset. For example, the wife purchased a house before marriage, but the husband, a contractor, installs a better kitchen in the house that increases the value of the house. The increase in value of the house as a result of the new kitchen may be subject to distribution by a New Jersey Court.

Other property that may not be subject to distribution also include inheritance, gifts, and property gained post-filing of divorce. However, if property gained before the marriage is co-mingled with marital assets, the individual assets may be subject to equitable distribution.

Second, the court will need to evaluate the marital assets. This process may become complicated depending on the nature of the asset in question. Assets such as money in savings account may be quickly determined by bank statements, but evaluation of assets such as houses and business may require realtors and investigative accountants to appraise the value of the asset. As such, appraisal of certain marital assets can become complicated and expensive for both parties.

Next, the court will assess the marital property for purposes of distribution. This step may be as straightforward as looking at bank statements or as complicated as retaining an appraiser or accountant to value a business or to analyze business benefits, such as deferred compensation, restricted stock or stock options.

Lastly, New Jersey grants its courts wide discretion to determine the fairest and the most equitable way to split the marital assets. The New Jersey Equitable Distribution Statute, N.J.S.A. 2A: 34-23.1, directs courts to consider the following factors (the list is not exhaustive):

a. The duration of the marriage;
b. The age, physical and emotional health of the parties;
c. The income or property brought to the marriage by each party;
d. The standard of living during the marriage;
e. Any written agreement made by the parties before or during the marriage concerning an arrangement of property division;
f. The economic circumstances of each party at the time the division of property becomes effective;
g. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
h. The contribution by each party to the education, training or earning power of the other;
i. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
j. The tax consequences of the proposed distribution to each party;
k. The present value of the property;
l. The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
m. The debts and liabilities of the parties;
n. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
o. The extent to which a party deferred achieving their career goals; and
p. Any other factor which the court may deem relevant.

One important factor considered by the Statute above is the role of the homemaker. Just because one spouse stayed at home to maintain the household and raise the kids without earning an income that does not mean that courts will not consider the homemaker’s contribution towards the development of the marital assets.

In conclusion, this article is a broad overview of New Jersey’s equitable distribution law and is only intended to be an introduction into this area of family law. Having the court distribute the marital assets can be straightforward or highly complicated depending on the nature and the size of the marital assets in question. If you are considering divorce, you should consult a family law attorney to determine your course of action.

* The above is no legal advice but information. Every case must be analyzed based on an individual, case-by-case basis. Please call us for a consultation.

Introduction to Chapter 7 Bankruptcy

You should file for chapter 7 bankruptcy when you are no longer able to meeting your financial responsibilities and require a fresh start.

Bankruptcy is governed by Title 11 of United States Code, a federal law, and the process does not vary widely from state to state. Bankruptcies are generally described as either liquidation or reorganization. Here we will discuss the liquidation, or Chapter 7 bankruptcy.

Chapter 7 is a liquidation bankruptcy meaning it can eliminate most types of unsecured debt. Examples of unsecured debt are credit cards and medical bills. Individuals, married couples, corporations and partnerships can all file a Chapter 7 bankruptcy if eligible.

Chapter 7 Bankruptcy can help you in the following ways:

Keep your property (Car and Home).

1. Bankruptcy may allow you to keep your home and your car. Under most scenarios, your attorney may be able to eliminate your debt and allow you to keep your home, your car, and your personal belongings.

Stop Lawsuits and Creditor Harassment.

2. Once you file for bankruptcy, your creditors will no longer be able to contact you directly to harass you about your debt. The law requires that they stop all debt collecting activities. In addition, filing for bankruptcy will stop all civil actions against you.

Get rid of your debt.

3. All unsecured debts including: credit card loans, utility bills, pay-day loans, car loans, or foreclosure deficiencies may be eliminated through your attorney without payments to your creditors.

Protect your wages.

4. Your creditors may go after your wages and force your employer to garnish your wages for them. Through the help of your attorney and bankruptcy, you can stop the creditors from garnishing your wages.

Chapter 7, Procedural Overview

The Means Test

In order to file for a chapter 7 bankruptcy, you first need to pass the “means test.”

Whether you can pass the means test is determined by the size of your household and your household income. In order to qualify in New Jersey, your household’s income need to fall below the following:

1 Member Household – $60,317.00
2 Member Household – $70,150.00
3 Member Household – $85,575.00
4 Member Household – $103,946.00
5 Member Household – $112,046.00

If your income is the above the median income for the size of your household, you will then need to convert to Chapter 13 bankruptcy, which is commonly referred to as debt reorganization.

Debt usage

If you meet the means test requirement, your attorney then needs to review your debt history to determine whether the way you have incurred your debt would be considered fraudulent by the bankruptcy court.

The courts wants to ensure that the petitioners are not abusing the bankruptcy program. The following activities may trigger the court’s attention and ultimately deny your petition:

1. Incurring large amounts of debt soon before filing for bankruptcy.
2. Spending large amounts money for luxury goods such as: luxury vehicles, handbags, expensive vacations, etc.
3. Incurring loans to pay for other loans such as taking out a cash advance to pay for your other debts.
4. Others.

In addition, your overall financial history has to be reasonable. For example, if you report $50,000.00 of income per year, but your bank statements commonly reflect cash deposits that are unexplained by your reported income, you will need a valid explanation for the additional income reflected.

There are many other concerns that required your attorney to review your financial records before filing for bankruptcy. You may need to bring your attorney about 6 months of bank statements, 6 months of credit card statements, 2 to 3 year worth of income tax returns, and other debt statements for your attorney to make a recommendation.

If you are experiencing serious financial hardships and can no longer afford to make the payments, you should contact this office to schedule a meeting and have us review your financial records to determine your course of action.

* The above is not legal advice but information. Every case must be analyzed based on an individual, case-by-case basis. Please call us for a consultation.