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Asset Protection (equitable distribution): Gift to one spouse New Jersey

Is a gift given to one spouse protected from future equitable distribution claims by the other spouse?The burden of establishing immunity from equitable distribution of a particular asset rests with the party who seeks to exclude an asset. Painter v. Painter, 65 N.J. 196, 214 (1974). Ultimately, the fashioning of an appropriate allocation of marital property is vested in the discretion of the trial judge. Savoie v. Savoie, 245 N.J. Super. 1, 5 (App. Div. 1990). Nevertheless, the findings of fact must be supported by substantial credible evidence. Cesare v. Cesare, 154…

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Investing in Property

When planning a real estate investment as a married couple, location of your investment plays a big role for asset protection. In New Jersey, the property held by the entireties (as Husband and Wife) is protected from partition sale by creditors, but the interest of a debtor-spouse is subject to levy by that spouse's judgment-creditor (meaning that lien will attach to the property but the non-debtor spouse cannot be evicted) ( Freda v. Commercial Trust Co., 118 N.J. 36a). In a few states, Florida being one of them, assets held by the…

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Another Reason to Wed

When the federal government enacted 12 USC 1701j-3, the purpose, as suggested in the title, was to preempt state legislative enactments and judicial decisions that prohibited enforcement of due-on-sale clauses. As of 1985, all of due-on-sale clauses are enforceable, thanks in part to this statute. The legislators provided several exceptions to the due-on-sale enforcement, among these is the ability to transfer encumbered property through devise, decent or operation of law after the death of joint tenant or tenant by the entirety under 12 USC 1701j-3(d)(3). Whether intended or not, this creates an…

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Getting a Patent at the USPTO

This post is a high level overview of the patent prosecution process. A typical soup to nuts process in the USPTO lasts about three to five years. After the application is filed and granted a filing date, the application will be placed in a queue. This queue usually accounts for the single longest period of delay between filing and allowance. Eventually, every application gets assigned to a technology center (TC). A TC represents a group of examiners that specialize in a particular field of art. For example Chemistry, Biology, Electronics, will all…

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Due on Sale Clause and Transfers to Trusts 12 ups ยง 1701j-3

If you read through your mortgage carefully, you will notice that the bank reserves the right to accelerate the repayment of your loan in the event that the property is sold or transferred without the bank's written approval. This clause is there to safeguard the bank's rights in the property, which is the collateral for your loan. While an outright gift or sale to a third party is what the clause is intended to guard against, transfers arising out of estate planning strategies can and do trigger a breach of this clause.…

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