People are always asking about maternity leave laws, creating a will, or even custody laws. As always, Little Hoboken wants to bring you the right information from the right people...and in this case that meant some big time lawyers! But they don't just give up the information that easily. So I had them meet me at a bar....and bought them a round of drinks...and then another one... and mayyyybe one more.
And then, I asked them all the questions we want to know!
Meet the lawyers:
Ashley Vallillo Manzi, Esq.
Carly Skarbnik Meredith, Esq
Gregory C. Ein, Esq.
Cassie: So, let's start with something that affects us all. Everyone knows wills are a smart thing, but so many of us don't have one. If I'm not a millionaire, and my sister knows I want her to raise my kids if something happens to me, do I need a will?
Greg (Estate Lawyer): Absolutely. Without a will, naming a guardian for a minor child, family members can become embroiled in a dispute as to who gets custody and care over the child when the parent(s) die(s). These can go on for years, and often require intervention by the courts. Naming a guardian can avoid battles between family members. This is simply one of many issues that can arise from non-monetary related reasons.
Cassie: Ok, so will 101. What do I need to know?
Greg: There are several roles that must be filled when executing your will. The Executor probates the will, gathers the assets, conducts an accounting of the estate, and distributes the assets to the beneficiaries. A Trustee is an individual who handles the financial aspect of a trust for the benefit of, for example, a minor child. A Guardian is an individual who cares for a minor child’s welfare, education, and day-to-day decisions. So, in creating a will, you will need to choose a friend or family member for each role. While each is a somewhat of a philosophical decision, a good rule of thumb is to choose people who get along. These people may have to work together for a long time after your death. It is also important to note that you can hire an attorney or accountant to handle these responsibilities.
Cassie: Again, I'm no millionaire, so what can I leave in my will and how hard is it to change my will if I need to?
Greg: Assets such as joint bank accounts, 401k, IRA, and insurance policies all have named beneficiaries, so you likely cannot leave them to someone in your will. It is often thought that you can award these assets to whomever you please through the execution of your will, but this is not true. As far as changes to your will, this is actually highly recommended. A common misconception is that once you create a will, it is sealed in concrete and locked away in a safe, but you can actually change your will whenever you want to. A good rule of thumb is to review your will every 4-5 years, or at the completion of a big life event. Things change, and so should your will.
Cassie: Speaking of things changing, let's talk about babies & marriage. First things first: What are the maternity leave/FMLA basics we should know? And when should I consult an employment lawyer?
Carly (Employment Lawyer): Ah, maternity leave. There are a lot of misconceptions about maternity leave and insurance, with people often confusing the two. If you and your employer meet specific conditions, you can take 12 weeks of maternity leave under the Family Medical Leave Act (“FMLA”). The FMLA is a federal law and applies to all 50 states. If you are eligible, the FMLA provides 12 weeks of job protected leave. However, it does not provide you with any income. Some employers have private short term disability insurance policies. Otherwise, an employee can likely collect disability insurance from the state for a certain period of time prior to and following the birth of the employee’s child. However, insurance only provides you with money and does not offer you any job protection. This is a very simplified and basic version of the basic laws and entitlements surrounding maternity leave. If you are a New Jersey employee, the New Jersey Law Against Discrimination may also come into play as may the New Jersey Family Leave Act. If you have specific questions concerning your maternity leave rights, you should consult with your HR department and also an employment attorney.
As for when to call an employment lawyer: if you are questioning it, then the answer is...NOW. Anytime you question if you are being treated lawfully, it is beneficial to consult a lawyer.
Cassie: Most large companies have HR, and many of us assume that is who we consult to solve a problem or talk about our maternity leave. As an employment lawyer, what are you thoughts on that?
Carly: Whether you are an employee or an employer, there are many reasons that employment attorneys are essential to advise, guide, and/or represent you. From an employee’s standpoint, HR often times is representing the company and may not have an individual’s best interests at heart. Additionally, for both the employer and employee, HR may not be aware of an employer’s legal obligations and responsibilities. This typically arises in the context of leaves (i.e.: FMLA, maternity, and disability).
Cassie: Maternity leave and a mother's rights are such hot topics and many feel like they are being treated unfairly. Does an employer have the right to be a jerk?
Carly: Unfortunately, there are no laws that protect you from a boss that is a jerk! But, "harassment" is a buzz-word in the employment law field. Employers cannot "harass" you based on a protected characteristic (i.e. gender, race, ethnicity). If someone is an “equal opportunity harasser” then there may not be anything that can be done legally. However, please do not make this determination for yourself. Consult with an employment attorney and seek their advice on the situation!
Cassie: Although we think (and hope) we will never need you, so many end up needing a divorce lawyer. Where does one even start when thinking about a separation?
Ashley (Divorce Lawyer): Well first of all, "legal separation" doesn't exist in NJ. If you and your spouse decide to live apart, it may affect some issues in your case but, again, there is no such thing as legal separation in NJ. Once you and your spouse decide to move forward, I always ask my clients for a wish list. What do you want for your house, kids, money and future plans? I also need a list of all of your assets, your income, your spouse's income, any liabilities, etc. All of this information helps me to understand your expectations and then guide you on what is reasonable.
Cassie: I've seen some nasty divorces and some more amicable ones. Some seem to last forever, others are divorced before anyone even knows it happened. What is the process really like?
Ashley: You're probably going to hate this answer, but it all depends. Every case has 2-4 personalities: those of the two people separating, and those of the attorneys involved. Everyone plays a part in determining how difficult (and costly) the case can be. If people are reasonable and cooperative, then we can all accomplish tasks quickly. If any one person remains entrenched in an unreasonable position or refuses to cooperate with the process, the process is longer and more expensive. By far, the most expensive and lengthy types of matters are those wherein the parents cannot agree on a custody and parenting time plan for their children. In those cases, we need to involve experts (typically mental health professionals), and their evaluation process alone can take 6-12 months.
Cassie: If a couple is determined to keep it civil and amicable, what should they do?
Ashley: Meditation and settlement are great and are actually the most common ways to resolve divorce cases in NJ. You can go to a mediator with or without an attorney, however you should always have a lawyer look over any agreement before you sign it. Please don't use Google for legal documents related to your divorce, child custody, or any of your assets.
If there was one thing all of these tipsy lawyers agreed on, it was talking to the right lawyer about any issue you may have. Like many professions, there are some lawyers that "do everything". But there are so many specialities and so many laws to understand within each area. So, each of these lawyers strongly advise finding a lawyer specifically practicing in your area of need.
Most lawyers offer a free consult, and document review shouldn't be too costly (assuming it's not too long!).
If you need to talk more with any of the lawyers in this post, feel free to reach out! Feel free to email any additional question to email@example.com