Ensure a Successful Estate Plan: “Prepare for Tomorrow by Acting Today”

Posted in Stark Events, Trusts & Estates

Stark & Stark Shareholder Robert F. Morris, member of the firm’s Trusts & Estates Group, will be hosting the free seminar “Prepare for Tomorrow By Acting Today: Tips for Ensuring a Successful Estate Plan.” This seminar will be held from 7:00 – 8:00 PM on Tuesday, September 15, 2015 at the Princeton Elks Lodge #2129, 354 Route 518, Blawenburg, New Jersey 08504.

The seminar will outline how individuals can make sure their estate plan is adequate to protect their family’s financial security. Rob will discuss topics including estate planning strategies, gift and death taxes, credit shelters, estate planning under a will or revocable trust, as well as inter vivos trusts.

Limited space is available for each session and pre-registration is mandatory. Attendees can RSVP to Sarah Ryan by calling 609.895.7246 or emailing sryan@stark-stark.com.

Grandparent Visitation Revisited

Posted in Divorce

Children of divorce are sometimes caught in the thorny legal thicket of “grandparent visitation.” No one wants to deny a child the benefits of having a good relationship with their grandparents. However, the situation is made more complicated by the right of a parent to raise their child or children as he or she sees fit, and one of those rights may include which may include limiting or prohibiting grandparent visitation.

New Jersey courts approach such cases with strong deference to the parent—in layman’s terms, this means that there is no level playing field between parents and grandparents from the courts’ perspectives. In fact, in order to succeed over an objection of a child’s custodial parent, a grandparent must prove by a preponderance of the evidence that the grandchild or grandchildren would suffer particularized harm in the absence of such visitation. Thus, grandparents must first make “a clear and specific allegation of concrete harm… significant enough to justify State intervention in the parent-child relationship” whereas “mere general and conclusory allegations of harm are insufficient.”

This heightened legal requirement is intended “to avoid imposing an unnecessary and unconstitutional burden on fit parents who are exercising their judgment concerning the raising of their children;” see Moriarty v. Brandt, which was decided by the N.J Supreme Court in 2003, and Daniels v. Daniels, an Appellate Division decision in 2005.

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The Importance of Cohabitation Agreements

Posted in Divorce

In today’s society, many couples choose to live together rather than get married. This growing trend has become more common in recent years than ever before. There are a variety of possible reasons why couples choose to live together rather than get married. One factor that is likely considered is the complex legal proceedings that will occur if the couple was to get divorced. Couples that cohabitate would rather make it simple and just be able to move out rather than go through a formal divorce.

However, while cohabitating couples may think they are simplifying their lives, legally, it is important to note that they are given none of the legal protections of married couples. This is especially true in New Jersey, as common law marriages are not recognized, so cohabitating couples are actually doing themselves a disservice by not seeking out the legal protection offered in marriage. Some of the rights that unmarried but cohabitating couples lose out on include the protections provided by divorce laws, the right to make medical decisions for their partner, inheritance laws, survivor’s benefits as well as many others.

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Debtor Does Not Get a Free House After All

Posted in Bankruptcy & Creditor's Rights

On February 2, 2015, the New Jersey Law Journal published my article discussing the Bankruptcy Court decision of In re Washington, Case No. 14-14573 (Bankr. D.N.J. Nov. 5, 2014), where the Bankruptcy Court held that under New Jersey law, a mortgage holder is time-barred from foreclosing on a residential mortgage if the complaint is not filed within six years of the date the mortgage loan was accelerated by the mortgagee.

On August 11, 2015, the United States District Court for the District of New Jersey reversed the decision, holding that the claim is time barred twenty years from the date of default. As a result, the mortgage is still valid and must be paid by the mortgagor.

The District Court looked to several recent state court cases (all unpublished) and the plain meaning of the statute in question. In May 2015, two Chancery Division Judges (Morris County and Hudson County) did not follow the Washington decision. The Judges disagreed with the Bankruptcy Court’s interpretation of N.J.S.A. § 2A:50-56.1.

The District Court followed the reasoning of the state court judges and found that the acceleration of a residential mortgage upon default does not accelerate the maturity date of the mortgage loan, since the maturity date is generally a specified date in the mortgage document (ie. date for last payment). Without a change in the maturity date, the District Court found that the twenty year statute of limitations was applicable to the facts before the Court.

It is too early to tell if the debtor will appeal to the Third Circuit Court of Appeals. If an appeal is filed, we will monitor and report on the case.

Making a Claim against a Payment Bond Posted by a General Contractor or Sub-Contractor

Posted in Litigation

In construction projects that are performed either on behalf of a municipality or a state agency, a general contractor and potentially a sub-contractor are typically required to post payment and/or performance bonds with the county or municipality. A general contractor or sub-contractor is required to post a payment and/or performance bond, because this ensures that sub-contractors or suppliers are paid, and enables the Township or state agency to have the work completed should the contractor fail to do so in a timely fashion. As a supplier or sub-contractor on such a municipal or state project, it is important to know your rights with regard to making a claim against a payment bond.

The most important thing that any sub-contractor or supplier must do prior to providing materials or services for a public contract is to provide the proper notice as required by N.J.S.A. 2A.44-145. This strict notice requirement specifies that the sub-contractor or supplier notify the party who posted the payment bond for the project in writing via certified mail of their intent to provide materials or services for the project. This is a prerequisite to being able to make a claim against the bond, or to receive a payment for materials and services with regard to the project if they are not paid by the sub-contractor or general contractor. As such, it is very important that any sub-contractor or supplier provide the appropriate notice to the party that posted the bond prior to performing any work or providing any materials.

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Chapter 91 Update: Time to Address the Mailing

Posted in Tax Appeals

What happens when the tax assessor mails a Chapter 91 request to the address maintained on the assessor’s public records, but the request is returned “unclaimed”? Is the assessor required to conduct any type of investigation to determine if the address is correct, or can the tax assessor rely solely on his or her records? Recently, the New Jersey Tax Court had an opportunity to review these issues in First Growth Plaza, LLC v. Borough of Raritan.

The Tax Court ultimately found that a tax assessor may rely upon its public records in sending out Chapter 91 requests and an “unclaimed” envelope will not defeat a motion to dismiss a tax appeal when the tax assessor relied upon his or her tax list when addressing the envelope. The Tax Court held that a tax assessor is not required to investigate the address of an unclaimed certified mailing. On the contrary, the Tax Court found that it is incumbent on the property owner to ensure that any change in the owner’s address is properly recorded with the assessor.

Property owners must be diligent in making certain that a tax assessor has a good address to mail notices and tax bills. Generally, the assessor will use the address set forth on a deed when updating a tax list after the sale of a parcel of property. That being said, this is not always the best address for the company.

More importantly, if a company merges, changes management companies or accountants or relocates, it must be diligent and send a formal change of address notice to the tax assessor if tax bills and notices need to be sent to a new address.

For any questions regarding this decision, it is recommended that you speak with experienced counsel.

Exposing Children to New Dating Partners

Posted in Divorce

One of the most difficult issues that can occur in divorce cases involves the exposure of the child or children to a parent’s new girlfriend or boyfriend. In legal parlance, limitations on such contact are known as “DeVita” restraints, named after a 1976 decision which held that exposure of the parties’ child to Mr. DeVita’s new girlfriend on an overnight basis endangered the child’s moral welfare. Since this decision, the DeVita case has been routinely cited by family law attorneys.

This landscape was recently altered by the Hon. Lawrence R. Jones, J.S.C., in the case of Mantle v. Mantle, where Judge Jones was faced with the enforceability of a consent agreement between divorced parents which prohibited contact between their child and the dating partner of either parent. Significantly, the agreement contained no expiration or review date. When Ms. Mantle sought to enforce the agreement, Mr. Mantle objected on the basis that she was trying to alienate the child from him and denied the allegation that he had ever “slept” with his girlfriend in the child’s presence. He did not deny, however, that he was allowing contact between the child and his girlfriend.

In denying Ms. Mantle’s application, Judge Jones revisited DeVita and determined that the rationale employed by the court in 1976 –i.e., that having one’s dating partner stay overnight was “contrary to a substantial body of the community”—was no longer applicable today.

In place of this premise, Judge Jones held that while a court should always remain cautious concerning the motives of the parents in such cases, the controlling principle must be the impact on the child in question. In other words, some cases may warrant restraints while others may not. Moreover, even if restraints are ordered, they should be periodically reviewed to determine if they should be continued, relaxed or vacated. Judge Jones’ well-reasoned opinion will prove invaluable to judges, family law attorneys and divorcing parents going forward.

For questions of how this decision may affect you, or questions related to divorce proceedings, please contact experienced counsel.

Stark & Stark Attorneys Recognized in 2016 “The Best Lawyers in America” Rankings

Posted in Stark News

Best Lawyers announced the 2016 “The Best Lawyers in America” rankings, and 18 Stark & Stark attorneys have been named, for practice areas that include bankruptcy and creditor debtor rights, commercial litigation, corporate law, family law, bankruptcy litigation, construction litigation, trusts and estates litigation, personal injury litigation for both defendants and plaintiffs, real estate law, trusts and estates and workers’ compensation law.

Rankings for Best Lawyers are based on a rigorous evaluation process that is strongly rooted in peer-review, following an analysis of the feedback from Best Lawyers and a final eligibility check for all nominees. Attorneys can be nominated by anyone other than themselves.

For reference, here is the full list of Stark & Stark attorneys, along with their practice areas, that have made “The Best Lawyers in America” rankings:

Lawyer Name Specialty
Timothy P. Duggan Bankruptcy & Creditor Debtor Rights/Insolvency & Reorganization Law
Kevin M. Hart Commercial Litigation
Lewis J. Pepperman Commercial Litigation
Allen M. Silk Corporate Law
John S. Eory Family Law
Maria P. Imbalzano Family Law
Timothy P. Duggan Litigation – Bankruptcy
Donald B. Brenner Litigation – Construction
Thomas J. Pryor Litigation – Construction
Lewis J. Pepperman Litigation – Trusts and Estates
John A. Sakson Personal Injury Litigation – Plaintiffs
Albert M. Stark Personal Injury Litigation – Plaintiffs
Bruce H. Stern Personal Injury Litigation – Plaintiffs
Gary S. Forshner Real Estate Law
Daniel L. Haggerty Real Estate Law
Steven L. Friedman Trusts and Estates
Vicki W. Beyer Workers’ Compensation Law – Claimants
Arthur H. Kravitz Workers’ Compensation Law – Claimants

 

For more information about the Best Lawyers selection process, please click here.

Chapter 91 Update: Delivery of Response

Posted in Tax Appeals

In our July 23, 2015 blog, “Tax Appeals: The Silent Killer,” we suggested that property owners return their Chapter 91 response by certified mail or some other method that generates a receipt. The basis for this suggestion is several tax court decisions, including the case discussed in my December 5, 2011 blog and the recent case of 2 JFK Blvd v. Township of Franklin, docket no. 00578-2015 (Tax Court June 24, 2015).

In 2 JFK Blvd, the municipality moved to dismiss a tax appeal alleging the property owner did not respond to a Chapter 91 request. The property owner alleged that it did respond in a timely manner and produced a certification that set forth the date the response was mailed, the address where the response was mailed and enclosed a signed copy of the response. The tax assessor certified that he did not receive the response.

The Tax Court found both witnesses credible and each scenario plausible. The Tax Court also commented that both witnesses “kept records with respect to the question at issue,” which seems to have bolstered the credibility of the property owner and assessor. Based upon the record, the Tax Court denied the motion to dismiss the appeal since there was not “sufficient evidence of non-compliance” by the property owner.

Sending the response by certified mail, overnight mail or hand delivery, provides a property owner with proof of service of his or her response and can help avoid a costly battle at the outset of an appeal.

Jurisdictional Requirements of Child Support Modifications

Posted in Divorce

A change in circumstances is a common occurrence in post divorce matters. The financial status of either divorcing party can easily change following a divorce. Considering that financial obligations, like child support, are calculated at the time of divorce, changes in financial status are especially impactful for those making the child support payments.

However, there is another factor to consider when attempting to modify child support payments:  the geographical location of the parties. Again, many things can change following a divorce—for example, either party can move from the state that initially granted the divorce. If that happens, it opens up a whole host of new questions. The foremost of which has to be, Which state should the party attempting to modify the child support payments file their petition? Choosing a state that has proper jurisdiction over a child support modification is critical because different states have different laws that could significantly affect what the revised payments are.

The Uniform Interstate Family Support Act (UIFSA) addresses this exact question and provides guidance as to which state has jurisdiction over the modification of child support payments. The UIFSA has been codified by every state. For example, in New Jersey, N.J.S.A. 2A:4-30.72a provides that a State has continuing, exclusive jurisdiction over a child support order as long as the State remains the home of the obligor (the individual making the child support payments), the obligee (the individual receiving the child support payments) or the child who is the center of the child support order.

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