I have co-authored this blog with Steven L. Friedman, Esq., a colleague of mine at Stark & Stark.
While holiday parties and shopping fill your schedule, consider setting aside time to evaluate year-end tax planning. This is the season for giving, and if giving does not factor into your current tax strategy, it could be an area for improvement. Developing charitable and intra-family giving strategies is an important component of any plan, and is particularly important at the end of the year. Charitable and intra-family giving can reap substantial rewards, but failing to properly consider your options each year may limit these benefits. The following analyzes some of the major end-of-year tax planning considerations for charitable and intra-family giving. Continue Reading
It is reasonable to think that owners of real property are responsible for maintaining and insuring that property. In community associations, however, the maintenance and insurance obligations are often not entirely consistent with ownership. Knowing the maintenance and insurance obligations for your community association and its unit owners is critical.
Ownership. Ascertaining who owns what property in a community association depends on the structure of the community – condominium, townhomes, cooperative, single-family home, etc. – and how it was created: by master deed, declaration, or proprietary lease. The owner of a single family home may own everything that is on his lot while the owner of a condominium unit may only own everything within her unit boundaries. In a co-op, the shareholders own no real property, just shares of stock in a corporation which owns the real property. While a homeowners association owns all of the common property, in a condominium association the common and limited common property is owned proportionately by each of the unit owners.
Maintenance. Unit owners may or may not be responsible for maintenance, repair and replacement of the property they own in a community association. A homeowners association may mow lawns on individual single family home lots or maintain, repair, and replace the roofs and exteriors of a townhome. A condominium association may be responsible for maintenance, repair, and replacement of pipes and wires which are part of the unit and a condominium unit owner may be responsible for maintenance and repairs of limited common elements adjacent to the unit. Ownership of property in a community association does not necessarily dictate the maintenance obligations.
Insurance. The insurance requirements in community associations may also be inconsistent with property ownership. Condominium associations and unit owners should be most concerned about insurance requirements because poor interpretation can result in duplicative insurance or even gaps in insurance. An association may be required to insure portions of the unit such as drywall, appliances, cabinets, and floor coverings or it may only be required to insure the building from the “studs out” (excluding drywall and all interior furnishings). Understanding the insurance requirements for unit owners and associations is essential to ensure sufficient coverage in the event of a casualty loss.
The association master deed/declaration and by-laws must be carefully reviewed to understand the ownership interests, maintenance obligations, and insurance requirements of unit owners and the association. A thorough understanding of these important provisions is fundamental to proper administration and management of a community association.
In an important recent opinion, Superior Court Judge Lawrence Jones (Ocean County) examined the competing claims of divorced parents regarding their child’s pre-school selection and issued a new set of legal principles to be applied if parents cannot agree. Judge Jones approached the task by considering the interplay between parental rights and the role of pre-school as a combination of child care and education.
In Madison v. Davis (pseudonyms for the parties’ actual names), Judge Jones was faced with the question of whether a custodial parent had the right to change a child’s pre-school without the consent of the other parent even though the other parent had joint legal custody. Although the lawyers for both parties made compelling arguments based on existing New Jersey law dealing with school selection, Judge Jones concluded that since the case did not involve compulsory education for children between ages 6-16, a specialized set of factors was necessary in the pre-school context.
Basically, the parties differed on the question of whether pre-school constitutes “day care” (mother’s position) or an “educational facility” (father’s position). The distinction is important because of judicial deference to the residential custodian (in this case the mother) concerning the right to select or change day care providers, as opposed to the more stringent requirement that both parents be involved in educational decisions involving their children. Instead, Judge Jones held that “simply lifting generic principles…and pasting them into the context of [this] litigation” was unsound since pre-school is a “cross between day care and school”. His conclusion was that since “there is no present law or policy” on the subject, the following principles shall govern:
- The custodial parent has the initial right to select a proposed pre-school program or to transfer the child form one program to another.
- The custodial parent’s rights are “not absolute and unlimited” in that such a selection must be “reasonable” in terms of cost, accessibility, hours, curriculum, and ancillary services.
- The custodial parent must provide the other parent with notice of his/her intentions regarding pre-school enrollment or any proposed change.
- The non-custodial parent, as a joint legal custodian, has the right to investigate and evaluate the above information but not to arbitrarily block or veto the custodial parent’s decision by simply refusing to consent.
- The non-custodial parent is free to file a motion with the court if he/she believes that the custodial parent’s selection is unreasonable and contrary to the child’s best interests. The non-custodial parent will, however, carry the burden of proof to so convince the court. The non-custodial parent must also provide the court with a “specific, more reasonable plan”.
- Finally, if the court finds that the pre-school selected by the custodial parent is unreasonable, the court may override that parent’s decision and order different day care arrangements, including placement at a different pre-school. The court can also award counsel fees to or issue other sanctions if it determines that a party has acted unreasonably.
The decision goes on to discuss ancillary issues such as the availability of the other parent to care for the child in lieu of pre-school which are beyond the scope of this article. For present purposes, the two “take-aways” for parents facing such issues are that finding mutually agreeable common ground is superior to the legal, financial and emotional toll extracted by contested litigation except in egregious circumstances and that a parent concerned about such matters should consult with experienced family law counsel before deciding how to proceed.
Whether in time of economic growth or decline, all businesses must be mindful of potential liability. The nature and extent of liabilities has a direct effect on profits, which can hamper business growth and require cutbacks, among other things. Knowing where and how liabilities arise can prevent negative effects on profits, avoid litigation premised on unintended and unknown acts, and promote overall business well-being. Continue Reading
Social media surrounds almost all of us. Statistically speaking, over 70% of you reading this article are probably social media users, whether you utilize Facebook, Twitter, LinkedIn, Pinterest, MySpace, Google Plus, various dating websites, a combination of several of these, or numerous others. In this digital age where cell phones and tablet devices are so common place in everyday living, most with photo and video capturing capabilities, personal privacy has been extremely constricted, voluntarily or not. Continue Reading
The New Jersey Supreme Court, after giving the administration countless opportunities to address the issue by other means (constitutional legislation or regulation), has now scheduled a motion by the Fair Share Housing Center to be heard by the Court on January 6, 2015. The motion seeks to enforce the previous order of the Supreme Court directing the Council on Affordable Housing (COAH) to adopt regulations consistent with the second round rules. The language in the Order essentially invites the legislature or COAH to act so in hopes that the Court can avoid a constitutional crisis.
While understandable that the Supreme Court wishes to avoid harsh action against State leadership, based upon over 15 years of failure of the executive branch to adopt legal and constitutional regulations or adopt new legislation (previous legislation was conditionally vetoed by Governor Christie and then dropped by the legislature), it would appear that the Supreme Court is expecting a different result after 15 years of recalcitrance and the express failure of COAH to adopt regulations. While the Supreme Court has been reluctant to do so, absent a reversal by this administration, it would appear that the only appropriate remedy is for the Court to order placement of a special master to adopt regulations or to allow parties to file builder’s remedy lawsuits to address the failure to provide reasonable opportunities for affordable housing.
Please click here for a copy of the Supreme Court Order.
Stark & Stark Shareholder Benjamin E. Widener, chair of the firm’s Employment Group, authored the article titled, “Employer Guidelines for a Happy Holiday Season,” which was published in U.S. 1 on Wednesday, December 3, 2014.
The article details several guidelines that all employers should follow in order to protect themselves from the “sleigh full of legal dilemmas [which] can expose [them] to significant liability.” Mr. Widener discusses:
- The importance of remembering religious tolerance;
- How to avoid various wage payment issues;
- Properly organizing ad executing holiday parties; and,
- How best to handle employee bonuses.
To read the full article, click here.
Stark & Stark Attorney Megan E. Smith, member of the firm’s Divorce Group, will be hosting the seminar “Understanding the Divorce Process.” This free seminar will be held on Thursday, December 11, 2014 from 5:30 – 6:30 at Stark & Stark, 401 Route 73 North, Suite 130, Marlton, New Jersey 08053.
The seminar will cover topics including things to consider when hiring an attorney, alimony determinations, child support, equitable distribution, settlement alternatives and attorneys fees. The seminar is free to the public, however, limited space is available and pre-registration is mandatory. Attendees can RSVP to TJ Mohin by calling 609.945.7610 or emailing firstname.lastname@example.org.
Stark & Stark Shareholder John L. Laskey, member of the firm’s Litigation and Bankruptcy & Creditor’s Rights Groups, will be present “Foreclosure: An In-Depth Walk-Through with Legal Considerations” and “How Bankruptcy Changes the Landscape” at the National Business Institute’s “Real Estate Foreclosure: A Step-by-Step Workshop” CLE seminar. This full day CLE seminar will be offered on Monday, December 8, 2014 and Tuesday, December 9, 2014 in Princeton and Cherry Hill, New Jersey. For event details and registration information, please follow the links below.
Stark & Stark Shareholder, Steve Friedman, Esq., Chair of the firm’s Trusts & Estates Department, was interviewed by New Jersey Public Television’s NJTV News to discuss the benefits and drawbacks of the New Jersey Medicaid Qualified Income Trust. Until now, individuals with income above the Medicaid Cap ($2,163 in 2014) were only eligible for Medicaid benefits while in a skilled nursing facility, while individuals whose income was below the cap were also eligible for in-home and assisting living care. Effective December 1, 2014, individuals with income above the Cap will be able to use a Qualified Income Trust to be eligible for all levels of care. Unfortunately, the law requires all individual whose income exceeds the Cap to establish a Qualified Income Trust, even if they are in a skilled nursing facility. Residents of skilled nursing facilities who are already Medicaid eligible as of December 1 are grandfathered. The program, which aired December 2, 2014, can be found by clicking here.
For more information about Qualified Income Trusts, visit The New Jersey Department of Human Services’s website.