Negotiating Summer Vacation Schedules: Divorced Parents’ Tug-of-War

Posted in Divorce

The start of summer can be a joyous occasion for many—the warm weather heralds the start of vacations, as well as summer break for children. Unfortunately, the start of summer vacations can be particularly aggravating for divorced parents. The issue of vacations and breaks are a perennial issue between some contentious divorced parents, as one parent seeks to deny or limit the other parent’s vacation with their children. The problem is especially difficult if international travel is involved.

In a decision issued on June 17th, the Hon. Lawrence Jones, J.S.C., dealt with such matters in the context of a mother’s proposed trip to Holland with the parties’ son to visit his maternal grandparents. The mother wanted the child to stay with his grandparents for an additional seven weeks after their two-week vacation, which would have deprived the father of summer parenting time. Unsurprisingly, the father objected, but in doing so sought to bar the two-week vacation on the basis that his ex-wife posed a flight risk. When presented with these troubled facts, Judge Jones found both parties positions to be unreasonable and allowed the two-week vacation, but, however, denied the additional seven weeks sought by the mother.

The court then had to deal with the father’s refusal to sign U.S. State Department form DS-3053 (the child’s passport application) and, while acknowledging that it could not force him to sign the form, granted the mother’s request for power of attorney to apply for the passport without the father’s consent. This thereby allowed the mother to take her son on the international vacation, but with the understanding that afterward he would return to the U.S. for the rest of his summer break.

Although the above facts were unique, Judge Jones’ decision squarely addressed the troublesome area of summer vacation time and highlighted the court’s inherent equity power to achieve a fair result.

Papal Visit to Philadelphia – Positive Economic Opportunities for Commercial/Retail Owners

Posted in Commercial, Retail & Industrial Real Estate, Real Estate

This blog was co-authored with my colleagues Tom Onder, Esq. and Brian Smith, Esq.

Pope Francis is coming to Philadelphia in September. The visit will attract millions of visitors from around the world. A quick look at prior Pontiff visits shows the enormous influx of people that the Pope attracts to other global cities:

Attendees

Global City

3.5 Million

Copacabana Beach, Rio, Brazil in 2013

6.6 Million

Vatican in 2014

6 Million

Manila, Philippines in 2015

+2 Million

Expected to see the Pope in Philadelphia  [1]

Many commercial, retail and other property owners are now planning to benefit from the multitude that come to see the Pope when he visits the United States in September. Currently, the Papal itinerary has him in Washington, D.C., New York, and Philadelphia.

Bigger Economic Impact than the Super Bowl

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Tax Appeals: The Silent Killer

Posted in Tax Appeals

It is crucial for owners and other taxpayers of commercial, industrial, retail and other income producing properties to be on the lookout for the “Silent Killer” of tax appeals, commonly known as Chapter 91 requests. New Jersey law permits a municipality to request income and expense statements from owners of income producing properties on an annual basis (N.J.S.A. 54:4-34). The request (referred to as a Chapter 91 request) must be made in writing, served by certified mail, and must enclose a copy of the statute providing the authority to make the request. A property owner has 45 days to respond to the Chapter 91 request or risk having a subsequent tax appeal dismissed by the County Tax Board or New Jersey Tax Court.

Property owners should be aware of the following:

  • Now is the time to be on the lookout for Chapter 91 requests since many tax assessors mail the requests during the summer. If tax bills are sent to a location outside of New Jersey (ie., accounts payable department located at corporate headquarters), it is advisable to make certain that the Chapter 91 request is sent to the person responsible for completing the request immediately.
  • Complete the entire form accurately. If a form is not complete or is misleading, the tax appeal may still be dismissed.
  • Although the statute appears to limit the request to income producing properties, that can be misleading. For example, an owner-occupied office building can be considered “income producing” in this situation. Also, if the property was income producing in a particular year, and vacant the following year for renovations, the property owner should still complete the form and advise the tax assessor that the property is now vacant. Also, inter-company leases or arrangements need to be disclosed. When in doubt, send in a response.
  • When responding to the Chapter 91 request, file the response to the tax assessor (not the township attorney) via certified or registered mail, overnight delivery service or in person so it is received within 45 days. There have been numerous cases where property owners allege they mailed their response, but the municipality denies receiving the response. In those circumstances, the Court is often required to hold an expensive plenary hearing to hear the testimony of the property owner and municipal assessor in order to decide whether the response was mailed. This is a costly way to start a tax appeal and can be avoided by obtaining a certified mail receipt.

While an assessor of any municipality can serve a Chapter 91 request, taxpayer vigilance is particularly key in municipalities undergoing a revaluation. In Central New Jersey, Hamilton Township, Plainsboro, Trenton and possibility Ewing Township are in the process of completing revaluations. If the revaluations are completed in 2015, virtually every tax assessment in these municipalities will change in 2016. In order to make certain you preserve your right to appeal your 2016 tax assessment, make certain you comply with any Chapter 91 requests in a timely manner. Failure to do so may result in a high tax bill in 2016, with no recourse.

For more information on Chapter 91 requests or tax appeals, please contact Stark & Stark or visit www.NJLawBlog.com.

Ch 91 requests

Preserving Assets of an Estate During a Will Contest

Posted in Probate Litigation

If you are at the point that you have decided to contest a Will, there is often a concern that the assets of the Estate may be depleted by the current beneficiaries under the disputed Will pending the disposition of the case. This concern is often present in probate litigation, as if a beneficiary were to receive Estate assets without Court imposed restraints this party would be free to convert and dispose of same. As such, it is common practice for attorneys in probate litigation to seek the imposition of preliminary restraints and/or temporary restraints pending the resolution of a Will Contest.

The imposition of preliminary or temporary restraints is called Injunctive Relief. The purpose of Injunctive Relief in the context of probate litigation is to preserve the assets of the Estate and to maintain status quo with regard to both tangible and intangible assets, and furthermore, to prevent the distribution of assets from the Estate pending the resolution of the matter.

The standard for obtaining Injunctive Relief is typically a four part test. The first prong of the test is to determine whether the party who is seeking the relief would suffer irreparable harm if the restraints are not granted. The next part of the test concerns whether the party who seeks the Injunctive Relief has a reasonable probability of ultimate success on the merits. This means that there must be some demonstration of a valid and reasonable claim asserted by Plaintiff. The next prong of the test would be to determine whether the restraints would cause an undue burden upon the person who would be subject to the restraints. The final part of the test is to determine whether it is in the public interest to grant the restraints which have been requested. Typically, in reviewing such an application the Court will place the most weight upon the first two prongs of the test. Recent decisions by the Appellate Division, however, have rendered the probability of success prong less crucial in determining whether injunctive relief should be issued. As a result, the Courts are now more inclined to preserve the status quo of the Estate pending the disposition of a matter on its merits.

As discussed above, it is important that if a party is considering contesting a Will and there are concerns that the Estate may be converted or wasted while the matter is pending, that Injunctive Relief be sought by their attorney to preserve the Estate until the matter can be fairly decided on its merits. This Relief may protect the party’s interest so that the matter can be fully and fairly decided. Obviously, the process is technical and any party who wishes to obtain this relief in the context of a Will Contest should seek the guidance and assistance of an experienced attorney.

How Cohabitation Affects Alimony Payments

Posted in Divorce

At the conclusion of many divorce proceedings, alimony is calculated by the court to be paid from the supporting spouse to the dependent spouse. The amount of alimony to be paid is calculated based on a variety of factors, including, among others, the length of the marriage and the martial lifestyle of the couples while married. Once calculated, alimony can typically only be modified by showing a “change in circumstances” that would warrant either the increase or decrease in alimony payments to be made. An occurrence that can be considered a “change in circumstance” is when the alimony recipient then cohabitates with another following the divorce while still receiving alimony payments.

Cohabitation situations can be frustrating to the alimony obligor (the spouse making the payments) because the alimony recipient cohabitating with another can mean two things: (1) the recipient may be using the payments to support their new partner, or (2) the recipient may be receiving financial support from their new partner in addition to the alimony received from their former spouse, essentially receiving monies from two different sources and concealing changes in their finances.

How does the law define cohabitation?

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Get that Divorce Agreement in Writing!

Posted in Divorce

In a case decided by the Appellate Division on July 15 (A.F v. P.F.; full names redacted), the Court emphasized the importance of reducing divorce agreements to writing in order to be deemed enforceable. In this case, while at the Courthouse, the parties reached what their lawyers labeled a “Partial Agreement” that needed to be “cleaned up.” In reliance on this representation, the Judge scheduled the case for an uncontested hearing. The conversion of this draft agreement did not occur. Instead, one of the parties sought to enforce the “Partial Agreement.”

With what the Appellate Court described as “an abundance of caution,” the Judge permitted the party seeking enforcement to testify as to why the document should be considered binding. The Judge found that it was not entitled to enforcement and an appeal followed. The Appellate Division affirmed the Judge’s findings that there had been “no meeting of the minds” between the parties.

This case points out the importance of having divorce settlements properly memorialized since, as in the above case, the document in question was insufficient. No settled divorce should be finalized without a comprehensive, written Marital Settlement Agreement, as opposed to a working draft, memorandum of understanding or the like which will lead to misunderstanding and litigation.

“White Collar” Workers Get a Raise: Changes to the Exemption under the FLSA

Posted in Employment

Arguably the most important law guaranteeing a worker’s right to fair pay is the federal Fair Labor Standards Act of 1938 (“FLSA”), which defines the forty hour workweek, sets the federal minimum wage, establishes requirements for overtime pay, establishes recordkeeping requirements for employers, and places restrictions on child labor. In addition, the FLSA requires employers to pay employees overtime (1 and ½ times their regular rate of pay) if they work over 40 hours in a single work week.

Employers often mistakenly believe that just because their employees are salaried, and not wage earners, then the employer is immune from paying overtime and those employees are automatically exempt from the FLSA overtime requirement. However, that’s not true. There are categories of employees who are exempt from receiving overtime pay, but that is dependent on the unique circumstances of the employment. For example, certain administrative, executive, professional and highly compensated employees may not be entitled to receive overtime pay—but even that might be changing soon.

On June 30, 2015, the United States Department of Labor (“DOL”) announced its proposed revisions to the overtime exemptions for “white collar” employees, i.e. those holding executive, administrative and professional jobs. The last time the FLSA was updated was in 2004, which established a salary threshold for the white collar exemption at $455/week ($23,660/year). The DOL’s new proposal doubles this salary threshold. Specifically, in order for an executive, administrative or professional employee to be exempt from overtime, at a bare minimum the employee must be salaried “at the 40th percentile of weekly earnings for full-time salaried workers ($921 per week, or $47,892 annually).”

Should this proposal be adopted, employees—white collar, blue collar or no collar—who earn less than $47,892 annually will be entitled to overtime pay no matter what. This is a significant upward departure from the current salary threshold, and is an additional hurdle to the other constituent tests employers must satisfy to demonstrate their employees are “bona fide” executive, administrative or professional employees. This means that even if an employee performs traditional “white collar” duties, the employee will be entitled to receive overtime pay if that employee earns less than this new, heightened salary minimum.

For example, under Section 13(a)(1) of the FLSA, as defined by its Regulations, 29 CFR Part 541, to qualify for the administrative employee exemption—in addition to the salary requirement—an employer must show that the employee primarily performs office work directly related to the management or business operations of the employer or the employer’s customers, and that “the employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” So, in addition to an employer proving that an employee is a bona fide administrative employee, the employer also must pay that employee at least $47,892 in annual salary to exempt the employee from receiving overtime pay.

Importantly, the DOL’s proposal also includes a mechanism “for automatically updating the salary and compensation levels going forward to ensure that they will continue to provide a useful and effective test for exemption.” As a result, the DOL projects the new annual salary floor would increase to $50,440 in 2016.

Additionally, the DOL has proposed an increase to the total annual compensation requirement needed to exempt highly compensated employees “to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers,” which would be $122,148 annually if made effective immediately.

Employers should start planning for these new salary increases, as well as the resultant increases in the number of employees who will be entitled to receive overtime pay. With this new regulatory change on the horizon, employers should not delay in auditing their personnel by reviewing their current workforce composition and determining which employees classified as exempt will remain exempt—or become non-exempt—under these new regulations.

Furthermore, while many state wage and hour laws closely track or follow the FLSA, employers must remain mindful of the differences between the FLSA and their own state’s wage and hour regulations. For example, while the current requirements of Pennsylvania’s Minimum Wage Act, 35 P.S. § 333.101, et seq., and regulations at 34 Pa. Code § 231.1, et seq., and New Jersey’s Wage and Hour Law, N.J.S.A. 34:11-56a, et seq., are substantially similar to the current federal standards, employers must ensure compliance with both federal and applicable state wage and hour laws where there is any difference or deviation between the two.

Notably, the FLSA, 29 USCS § 218 (and its regulations at 29 C.F.R. Part 541.4) provides that federal law does not affect the enforcement of state overtime requirements. Employers should know that whichever law, state or federal, provides the greater benefit and protection to its employees will be the one enforced.

In conclusion, employers concerned about these anticipated changes to the framework of the FLSA would be wise to consult with their employment counsel to ensure compliance not only with these new federal regulations but, additionally, to review and ensure compliance with all applicable state laws.

Landlord Wins Lawsuit Due to Good Lease and Guaranty

Posted in Stark News

Stark & Stark Shareholder Jerry A. Nelson, member of the Commercial, Retail, Industrial, and Multi-Family Real Estate Group, authored the article, “Landlord Wins Lawsuit Due to Good Lease and Guaranty,” which was published on May 29, 2015 in the Mid Atlantic Real Estate Journal.

The article explains a new decision that was recently released in the New Jersey Appellate Division. With this unpublished decision, landlords can make and save more money by utilizing good leases and guaranties. The case affirmed this because the landlord was found to have provided a lease and guaranty that were “clear and unambiguous.” Additionally, the tenants and guarantor were “found to be liable for a judgment in the amount of $324,119.20 plus costs.”

For landlords, this decision illustrates the importance of preparing a good lease and guaranty at all times, to protect themselves against any future unforeseen circumstances. This is not a practice to be overlooked, as proper documentation can persuade courts to grant summary judgment, as they did in this decision, which meant the landlord was able to make and save money in a timely manner.

If you’d like to confirm that you have the lease, guaranty, you need to win a dispute, it’s important that you speak with experienced counsel. “Evaluating your legal issues and addressing them carefully, requires careful review on an individual basis.”

You can read the full article by clicking here.

Apple, Amazon and the Wage Payment Issues Arising from Employee Security Screenings

Posted in Employment

Apple, Inc. retail employees who allege they should have been compensated for off-the-clock time spent undergoing the store’s mandatory screening processes have renewed their bid for class certification in federal court in California. In the complaint filed in Frlekin v. Apple, Inc., Docket No. 3:13-CV-03451 (N.D. Cal.), the plaintiff employees alleged that the global technology giant engaged in illegal and improper wage practices in violation of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §201, et seq., and California labor laws, by requiring store employees to wait in line and undergo off-the-clock security bag searches and clearance checks when they left for meal breaks or at the end of their shifts. This practice, the employees alleged, deprived them of wages they should earn during what they contend is compensable time at “work.”

In opposing class certification, Apple has maintained class certification should be denied because (i) different stores implement the screening policy differently, (ii) employees who do not bring bags or their own Apple devices to work are not subjected to the bag and technology screenings, and (iii) there is not sufficient commonality in the class, particularly with respect to the plaintiffs’ individual wage and overtime claims.

On May 13, 2014, the court denied Apple’s bid for dismissal, expressing that the fact issues concerning the implementation of the screening policy at various stores and under various circumstances precluded the entry of summary judgment. Then, in that same order, the court stayed the Apple litigation pending the outcome of Busk v. Integrity Staffing Solutions, Inc., 135 S. Ct. 513 (2014), another employee screening case for which the United States Supreme Court had granted certiorari.

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Modification of Alimony Due to Retirement

Posted in Divorce

During the course of divorce proceedings, alimony from the supporting spouse to the dependent spouse is typically calculated based on a variety of factors. The income of the two spouses is a critical factor in determining the amount of alimony to be paid. However, some incomes are not guaranteed and can change over time. One of the most common scenarios in which the income of a spouse can change is due to retirement. Following one’s retirement, a spouse can petition the court to modify the alimony payments they either receive or pay. However, there are an additional set of factors the court must consider in permitting alimony payments to be modified if the parties were divorced prior to September of 2014.

The leading case in New Jersey addressing the modification of alimony is Lepis v. Lepis (1980), which states that “the party seeking modification [of alimony] must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself.” Furthermore, the court will look at the party’s circumstances at the time of the divorce (when the alimony was determined) and at the time of application for the modification of alimony to see any differences in the circumstances between these two dates.

Because retirement is one of the leading causes for a petition for the modification of alimony to be filed, there are cases in New Jersey that have laid out a series of factors to determine whether or not the retirement of one of the spouses warrants alimony to be modified.

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