New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

Business owners are always looking to increase profits and space. As most savvy business owners know, the option of buying rather than renting is a better investment because it will save them money down the road. However, finding affordable property can be problematic at times. 


These two issues have spawned the popularity of commercial condominiums, which are similar to residential condominiums except that people own units of a building reserved for commercial ventures.  Commercial condominiums offer generally what business owners desire: space, substantial savings and control over their property and monthly expenditures.  The ability to control the building operations and expenses is also an attractive value to a business owners.  No longer does the business owner have to worry about increased rent and fees from a landlord. 


The owners of the commercial condominium association can set their own budget and fees and manage their own amenities as they see fit.  This is especially attractive to small business owners who do not have the funds to purchase an entire building.  Moreover, the owners of commercial condominium units enjoy tax advantages over commercial tenants who are generally unable to claim deductions for property taxes, repairs and depreciation.  Owners of the condominium may also negotiate a change in the allotted space to each unit owner if the units and/or master deed are flexible in nature.  Although owning over renting has its disadvantages such as a down real estate market, and repair/upgrade expenses, the benefits generally outweigh the detriments.  


Legally, commercial or business condominiums are generally governed under the same rules as residential condominiums.  The New Jersey Condominium Act applies to all condominium units in New Jersey, including those created for commercial or mixed purposes.  However, disclosure laws, such as the Planned Real Estate Development Full Disclosure Act, are not applicable to commercial condominiums.  There are also many practical difference that are specific to commercial condominiums. 


As such, it is imperative that the commercial condo's counsel, Board and managing agent be familiar with the particular differences between residential and commercial condominiums to be able to provide appropriate representation and/or operation the Association.

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The mediator privilege is extremely important to the mediation process.  Without it, participants would have no confidence in the process and information necessary to assist the mediator in resolving a case would not be communicated.   It has often been said that the mediation process involves two levels of confidentiality.  The first level is when the parties are together in a joint session.  While the communication itself at a joint session cannot be used at a later proceeding, the information conveyed has been heard by all and that cannot be changed.  However, communications at a separate session consisting of a party, counsel and the mediator are completely confidential, subject to the provisions noted below.

 
Effective July 1, 2008, New Jersey Evidence Rule 519 was amended.  This amended Rule deals with the "Mediator Privilege". 

 
Privileged communications
The amended Rule provides that a mediation communication is privileged and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by law.  In a mediation proceeding, the following privileges shall apply:

(1) a mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

(2) a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.

(3) a nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.

Evidence or information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.  


Waiver of privilege
The privilege may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:

(1) in the case of the privilege of a mediator, it is expressly waived by the mediator;  

(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant;

(3) a person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure; and  

(4) a person who intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege.   

Lack of privilege
There is no privilege for a mediation communication that is:

(1) in an agreement evidenced by a record signed by all parties to the agreement;

(2) made during a session of a mediation that is open, or is required by law to be open, to the public;

(3) a threat or statement of a plan to inflict bodily injury or commit a crime;

(4) intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

(5) sought or offered to prove or disprove a claim or complaint filed against a mediator arising out of a mediation;

(6) except as otherwise provided, sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation;  

(7) sought or offered to prove or disprove child abuse or neglect in a proceeding in which the Division of Youth and Family Services in the Department of Human Services is a party, unless the Division of Youth and Family Services participates in the mediation.

(8) considered by a court, administrative agency, or arbitrator,  in certain limited proceedings involving a crime or to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation, and in which there is a finding, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality.   

Permitted disclosures
A mediator may not make a report, assessment, evaluation, recommendation, finding, or other oral or written communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation, except as is noted below. A communication made in violation of subsection a. may not be considered by a court, administrative agency, or arbitrator.


A mediator may disclose:

(1) whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; or

(2) a mediation communication as permitted under other provisions as noted above.

Confidentiality is the key to a successful mediation.   Every mediator must be aware of its significance and make sure that all counsel and participants understand and appreciate its role in the mediation process.

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Deposits with the copyright office of pictures depicting dress designs, as opposed to specimens of the actual fabric designs, are usually sufficient to protect those designs.  See Blue Fish Clothing, Inc. v. Kat Prints, 1991 WL 71113 at *3 (E.D.Pa. 1991) (Designs displayed in clothing catalogs properly registered); see, also, Winfield Collection, Ltd. v. Gemmy Industries, Corp., 147 Fed.Appx. 547 (6th Cir. 2005) (citing King Features Syndicate v. Fleischer, 299 F. 533 (2d Cir.1924); Geisel v. Poynter Prods. Inc., 295 F.Supp. 331 (S.D.N.Y. 1968); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 5 F.Supp. 808 (S.D.N.Y. 1934)) (copyright protection for two-dimensional photographs or drawings encompasses three-dimensional depictions that are substantially similar).


A party seeking to establish fraud on the copyright office in order to rebut the presumption of copyright validity of a registered dress design, bears the heavy burden of proving deliberate misrepresentation (This same standard is applied for both the copyright application as well as the deposit accompanying the application.  See Data General Corp. v. Grumman Systems Support Corp., 36 F.3d 1147, 1163 (1st Cir. 1994). See Chere Amie, Inc. v. Windstar Apparel, Corp., 191 F.Supp.2d 343, 350-51 (S.D.N.Y. 2001) (citing Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452, 455 (2d Cir.1989); Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.1984) (fraud on the copyright office occurs only when there is a “knowing failure to advise the copyright office of facts which might have occasioned a rejection of the application”); Santrayall v. Burrell, 993 F.Supp. 173, 176 (S.D.N.Y.1998) (the affirmative defense of fraud requires proof of deliberate misrepresentation to overcome the presumption of validity)).


Mere mistake or inadvertence in the application process is not sufficient to challenge the validity of a copyright registration.  See Imperial Laces Inc. v. Westchester Lace Inc., 1998 WL 830630 (S.D.N.Y. 1998).  In Imperial Laces, the plaintiff filed a copyright application with the copyright office claiming a copyright on lace design No. 8191 and identifying itself as the author of the design. However, plaintiff failed to indicate in the designated portion of the application that design No. 8191 was a derivative work based upon lace design No. 5725.  Id.  The application was signed by plaintiff’s vice president, as the authorized agent for plaintiff, who did not read the application before signing it.  Id.  The court found that:

Although required to do so, Imperial failed to identify lace design No. 8191 as a derivative work on its copyright application. As this appears to have been the result of mere inadvertence rather than fraud, however, this omission in no way invalidates Imperial's copyright registration. See Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.1984); Harrison/Erickson, Inc. v. Chicago Bulls Ltd. Partnership, 1991 WL 51118, at *5 (S.D.N.Y. 1991).

Id. at note 4.
   

This requirement of scienter on the part of the applicant in proving fraud on the copyright office was similarly addressed in M.S.R. Imports, Inc. v. R.E. Greenspan Co., Inc., 1983 WL 1778 (E.D.Pa. 1983), which held:

Mr. Rodack testified at trial that, since he believed he had designed the wagons himself based on his own original ideas, there was nothing ‘preexisting’ to report. He may have been entirely incorrect in his narrow reading of the term ‘preexisting,’ but this does not establish intentional or purposeful withholding of information.

Defendant offered nothing to refute Mr. Rodack's claim of lack of understanding of the requirements of section 6 of the application, except the fact that Mr. Rodack had prepared numerous applications in the past. This in itself is insufficient to prove fraudulent conduct or the necessary scienter to warrant invalidation of the copyrights.

Id. at *9 (citations omitted) see, also, Sunham Home Fashions, LLC v. Pem-America, Inc., 2002 WL 31834477 at *5 (S.D.N.Y. 2002) (Manufacturer committed inadvertent error, rather than knowing fraud, on copyright office in falsely designating quilt designs as works made for hire, when it had employees in its design department who did not understand legal terms fill out copyright applications, and thus false designation did not destroy presumption of validity arising from certificates).


Thus, deposits with the copyright office of pictures depicting dress designs are usually sufficient to protect those designs, and a claimant asserting fraud on the copyright office emanating from such deposits bears a heavy burden.

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Under the Local Redevelopment and Housing Law a municipality may declare private property to be blighted if it meets one of the enumerated criteria set forth it the statute at N.J.S.A. 40A:12A-5. For example, under the so-called “e” criteria - referred to as such because it is codified at N.J.S.A. 40A:12A-5e - property may be deemed blighted or in need of redevelopment if the property lacks “proper utilization” caused by such things as conditions of title, diverse ownership or “other conditions,” which result in a “stagnant or not fully productive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.”


In Gallenthin Realty v. Bor. of Paulsboro, decided last year, the New Jersey Supreme Court held that in order to satisfy the “e” criteria there must be substantial, credible evidence that the “particular configuration” of properties or their “fractionalization” due to conditions of title, diverse ownership or other conditions would frustrate the orderly redevelopment of the study area. A mere showing that property is not being used in an optimal manner is not enough. As such, it is essential to review deeds and other title records and conduct surveys of property and public rights-of-way in evaluating the applicability of the “e” criteria. If these studies show that the proposed redevelopment area (a) is characterized by landlocked parcels, (b) contains properties having questionable or invalid title, (c) is marked by numerous physical encumbrances into the public rights-of-way and/or (d) displays other similar deleterious circumstances directly linked to stagnation and underutilization, then all or some of the study area may qualify for redevelopment under the “e” criteria.

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It is well established that utilitarian or useful articles, such as dresses or the functional components of dresses, are not the proper subjects of copyright registration and protection.  However, decorative patterns, lace and fabric designs incorporated into dresses “are considered ‘writings' for purposes of copyright law and are accordingly protectible.”  See Eve of Milady v. Impression Bridal, Inc., 957 F.Supp. 484, 489 (S.D.N.Y. 1997) (citing Knitwaves, Inc. v. Lollytogs Ltd, 71 F.3d 996, 1002 (2d Cir. 1995); Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 763 (2d Cir.1991)).  Moreover, The level of originality and creativity in fabric designs that must be shown is minimal, only an “unmistakable dash of originality need be demonstrated, high standards of uniqueness in creativity are dispensed with.” Folio Impressions, 937 F.2d at 765 (citing Weissmann v. Freeman, 868 F.2d 1313, 1321 (2d Cir. 1989); Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)).


In Folio Impressions, a fabric designer cut out photocopies of roses, arranged them in a pattern and then photocopied that pattern against a background.  Folio Impressions, 937 F.2d at 764.  That design was then registered with the copyright office as “Pattern # 1365.”  Id.  The Folio Impressions court aptly addressed defendant’s arguments based upon the utilitarianism and lack of originality of the fabric design:

The arrangement of the roses over the background portion of Pattern # 1365, while perhaps elementally symmetrical, does not appear to be designed to ease manufacture since, once the decision as to how to place the item against the background was made and executed, the whole piece was copied mechanically. Thus, it did not matter for manufacturing purposes of what the original design consisted. Rather, Sadjan's decision to place the roses in straight rows was an artistic decision. Further, there is no evidence that Sadjan copied the placement of the roses from any source. Consequently, the district court's finding that the particular arrangement given the Folio Rose in Pattern # 1365 was not original was clearly erroneous. Although the arrangement may have required little creative input, it was still Sadjan's original work and, as such, copyrightable.

Id. at 765.

Thus, while dresses clearly constitute utilitarian or useful articles, decorative patterns, lace and fabric designs incorporated into dresses are the proper subjects of copyright registration and protection.

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The Honorable Francis B. Schultz, J.S.C. recently held that the New Jersey Prevention of Domestic Violence Act (hereinafter “DVA”) is unconstitutional in that it violates New Jersey’s constitutional article on separation of powers and utilizes the preponderance of the evidence standard of proof.  In his letter opinion, the Judge disagreed with the Defendant’s other attacks on the constitutionality of the statute, including arguments regarding the statute’s alleged violation of the Defendant’s First Amendment right to free speech and Second Amendment right to bear arms, as well as other jurisdictional attacks. 


With regard to the Defendant’s separation of powers argument that the DVA is unconstitutional based upon the statute’s prescription of procedural aspects constitutionally reserved to the Court,  the Judge noted that the procedures established by the DVA directly conflict with established Court Rules and specifically held that “the entirety of N.J.S.A. 2C:25-29A, especially the ‘within ten days’ requirement for the setting of the final hearing, contains what are unambiguously rules for practice and procedure.” 


As to the standard of proof issue, the Judge held the DVA unconstitutional utilizing the balancing test promulgated by the United States Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976).  Based on the implication of a Defendant’s fundamental right as a parent to be with his or her child, the Judge found that the due process clause of the Fourteenth Amendment and the New Jersey Supreme Court case of In re Polk “require that a clear and convincing standard be utilized in domestic violence matters.”  Interestingly, while the Court found that a new hearing was required, the Judge did not order that the Judge who will conduct the hearing to apply the clear and convincing standard, holding only that the Matthews’ balancing test should be utilized in determining the standard of proof to be applied. 


The impact of this case may result in the overturning of hundreds of thousands of Final Restraining Orders upon application of Defendants across the State.  However, based upon the Judge’s utilization of the Matthews’ test when focused on the fundamental right of a parent to be with his or her children, it seems that such arguments may only be applicable for cases where the parties have minor children, and the Defendant’s access to them has been substantially cut off due to the entry of the Final Restraining Order, thus implicating a fundamental right.  Anyone who feels that this case may be applicable to his or her Final Restraining Order should consult with an attorney and consider awaiting the result of the new hearing to be conducted pursuant to the Judge’s Order.  Based upon the interview of the Plaintiff’s attorney by the New Jersey Law Journal published June 30, 2008, appeal of the Judge’s determination in this case is likely if she loses at the new hearing in which the Matthews’ balancing test will be applied in determining the standard of proof.

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Gary S. Forshner, Shareholder in Stark & Stark's Real Estate Zoning & Land Use group will present at this year's Lorman Education Services seminar, Real Estate Development From Beginning to End in New Jersey. Mr. Forshner's presentation on Ethics in Land Use will be part of a full day seminar covering topics related to development in New Jersey including government approvals, redevelopment, construction financing and the purchase and sale agreement.


The seminar will take place Friday, September 26, 2008 from 8:00 AM - 4:30 PM at the Parsippany Holiday Inn Hotel & Suite in Parsippany, New Jersey. You can access the full seminar brochure with additional information and registration form here.

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Times are tough all over and those who live in community associations are no exception.  When money is tight, some association members make paying their maintenance fees a low priority.  This can be a big mistake because, if ignored, a small amount of delinquent maintenance fees can expand into an unexpectedly large debt.  

   
Each member of a community association is responsible for paying his or her share of the common expenses.  Common expenses are things like snow removal, swimming pool maintenance, and lawn care.  When a member does not pay his share, the other members must pay more to subsidize the delinquent member.  In the same way, when the association must pay its legal counsel to collect those delinquent maintenance fees, the other members must pay more to subsidize that cost, as well.  Fortunately, the governing documents of most condominium associations, as well as New Jersey law, permit the association to pass on those costs to the person responsible: the delinquent member.  

   
An association member will be given many opportunities to address his delinquent maintenance fees before significant legal costs begin to accrue.  The association will first send out reminder letters to the member.  After a certain point, if the debt is not paid, the account will be referred to the association’s legal counsel.  The attorney will typically send out a collection letter.  The amount due in the collection letter will include the total debt plus a small amount of legal fees to review the file, calculate the amounts due, and prepare the letter.  If, after 30 days, the member has not paid the account or made arrangements to pay it, further action must be taken such as recording a lien against the unit and filing collection litigation.  Each time the association’s legal counsel must perform work to collect the delinquent maintenance fees, the association will charge these fees to the member’s account.  Legal fees will continue to accrue against the member’s account until the matter is resolved and all amounts due are paid.  Thus, while a member may believe his maintenance fees total only a couple thousand dollars, the legal fees may eventually equal or exceed that amount.  The association’s board of directors has an obligation to the association and all of the members who pay their fees each month to see that as much of this amount is recouped as possible.

   
Accordingly, it is extremely important for an association member to ensure his maintenance fees are paid when due and that if he becomes delinquent that he makes repayment a priority.

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Adam J. Siegelheim, member of Stark & Stark's Franchise group, was a participant in the June 2008 franchise roundtable for GC Mid-Atlantic Magazine, titled The Franchise Relationship: Trends in the Law.

The panelists discussed topics related to the franchise industry including a discussion on the difference between a franchise and a license, what are the most common factors in disputes that arise among franchisors and franchisees and tips on how to how handle dispute resolution issues in a franchise agreement.

You can read the full article here.

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The New Jersey Department of Transportation and New Jersey Transit have developed a program known as the Transit Village Initiative, which recognizes municipalities that are committed to redeveloping the area around a transit facility into a compact, mixed-use community.  Once designated, a municipality may obtain technical assistance and financial benefits.  New Jersey’s Transit Village Initiative is an offshoot of the so-called “smart growth” policies first advanced by former Governor Christine Todd Whitman and included in the New Jersey State Development and Redevelopment Plan.  It is not supported by specific legislation.  However, this could soon change if the State Legislature enacts and Governor Jon Corzine signs into law the proposed New Jersey Transit Villages Act introduced earlier this year in the Senate as bill number S1223.


Under the proposed New Jersey Transit Villages Act, at Section 11, “[a] municipality or a county in which a transit village has been designated by the [C]ommissioner [of Transportation], shall receive priority on all applications for funding from programs that are administered by State agencies and departments that support the use of transit through transit oriented developments.”  This legislation would also, among other things, authorize the New Jersey Department of Environmental Protection to develop an expedited and coordinated permit review and approval process for transit villages and make available to developers of property within a designated transit village tax credits “equal to four percent of allowable costs plus such other incentives deemed appropriate[.]” The term “allowable costs” is defined under Section 12 of the Senate bill and includes such expenses as “legal, engineering, architectural, and other professional fees allocable to construction or rehabilitation . . . not to exceed $200 per square foot of finished interior space.”


The New Jersey Transit Villages Act is also being considered in the State Assembly under a companion bill (No. A1633).  However, the future of this proposed legislation is uncertain.  In light of the current economic downturn and the concomitant budgetary concerns, it appears unlikely that the Legislature or the Governor will be receptive to any new funding or tax credit programs. On the other hand, because the proposed New Jersey Transit Villages Act encourages redevelopment planning and construction which, in turn, promotes economic activity it might have a chance during the 2008-2009 legislative session.  It certainly is a bill that is worth watching.

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The Appellate Division recently decided in favor of an association as it pertains to the amount of attorneys fees awarded in the matter of Summerhill Condominium v. Venner. What is most germane to associations is the fact the lower Court found, and was upheld by the Appellate division, the attorneys fees and costs to be reasonable, despite the attorneys fees being more than 50% of the amount of maintenance fees due.


While the Appellate Court stated that the work needed to complete this matter was not "novel or complex", the Court did recognized the amount of work needed to complete the matter, and agreed that the fees in this matter were similar to fees that are regularly charged for this type of work.


It is important that Courts have an understanding of the legal work needed to collect maintenance fees. Regardless of the amount owed to an association, the attorneys fees and costs needed are similar no matter the amount owed.

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In a significant opinion issued on June 17, the New Jersey Supreme Court  ruled 6-1 that cohabitation is not an absolute requirement for a successful "palimony" claim but is only one of a number of factors a court should consider.


Th ruling is important because it breaks tradition with precedent set  by nearly every other state court in that a plaintiff need only prove a "marital type relationship" rather than show that the couple lived together for some period of time.


"Palimony" is a term of art for equitable recovery based on a long-term spousal type relationship between two unmarried persons. In most successful palimony claims cohabitation will exist but it is no longer an indispensable element. Instead, the "entirety of the relationship" must now be considered. Thus, persons who have a "marital type relationship" but do not live together for such reasons as employment, educational or military opportunities would qualify under the new  standard.  New Jersey is the first state to rule that cohabitation is not a requirement for palimony.


Although every case is determined on its own facts, the ruling eliminates one long-standing factual requirement and opens the door to new and varied situations which would previously had no legal basis.


It is important that a person involved in such a situation obtain skilled legal advice in determining how to proceed.

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In the recent case of Ruggiero v. Valleybrook Homeowner’s Association (Valleybrook), the plaintiff, Ruggiero, claimed that the method Valleybrook used to collect maintenance fees was not consistent with all sub-associations, and therefore invalid under the law.


The Appellate Division affirmed a lower Court’s decision stating that Valleybrook’s methodology of collecting maintenance fees was proper, and distinguished this case form the Brandon Farms Property owners Association v. Brandon Farms Condominium Association case ("Brandon Farms").


In Brandon Farms, the governing documents had language requiring the sub-association (the condo) to be responsible for collecting the fees due to the master association (the property owners association).  That was invalidated in 2004 by the New Jersey Supreme Court.  


However, what distinguished this matter from the Brandon Farms case is that the sub-association voluntarily collects the master association fees from its members, and then forwards those sums to the master association.  The Appellate Division decided that this method of collection did not violate any law.

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Many residents of Bucks County Pennsylvania work in the adjoining counties of Mercer, Burlington and Hunterdon, New Jersey and vice versa. When those residents experience marital problems, it is not unusual that one or the other of them may relocate from Pennsylvania to New Jersey or vice versa, and may then have a legitimate option to file for a divorce in either state.

It is, of course, only in those cases in which the relocating party has resided in the new state for the required period of time to qualify them to file for the divorce in the newly acquired state of residency that this is a legitimate option.  No party can or ever should attempt to avoid the jurisdiction of their home state by relocating or fabricating the length or legitimacy of their new residency in order to acquire jurisdiction.

If the new state is New Jersey, a person must have 12 months of continuous residency prior to the filing of the complaint for divorce.  If the new state is Pennsylvania, the period of continuous residency prior to the filing of the petition for divorce is 6 months.

 In either case, the party filing for the divorce also has the option of filing in the original state if his/her spouse continues to reside in the original state.  The change of a person’s state of residency may have significant ramifications on a variety of levels above and beyond simply the jurisdiction for their divorce.  State Income Tax, Estate Tax and a variety of other factors must all be considered before changing one’s residency.

 However, as Divorce Attorneys we are often asked whether a client should file in one state or the other and the legal ramifications of doing so. In order to analyze that question, the procedural and substantive differences in the law of the respective states as they apply to the facts of a specific case must be carefully considered.

There can be no definitive answer as to which state may be the preferred jurisdiction for the divorce, and each case must be examined in the context of its own factual and legal issues as well as in the context of the other factors mentioned above.  Our office has six attorneys who are licensed to practice divorce law in New Jersey and four who are licensed to practice in Pennsylvania. Very often, one or more of those attorneys must be consulted in each case in order to make an intelligent decision as to whether a complaint can be properly filed in either state and what may be the ramifications of such filing.

 Very often, we, as Divorce Attorneys, need to also confer with our estate, tax and real estate partners.  Sometimes the decision can be made based solely upon divorce related issues, and other times, it is far more complex. However, typical divorce related issues which must be addressed often include: 

• The grounds for the divorce  - that issue is generally not significant since both Pennsylvania and New Jersey now include and encourage the use of broad “no fault” grounds for divorce.
•  The time which either state may take to process the case – New Jersey has adopted a “Best Practices” doctrine which encourages the Courts of New Jersey to conclude an action for divorce within 12 months of its filing date; Pennsylvania has no similar provision.  Generally, but not always, cases take longer to conclude in Pennsylvania than in New Jersey.
• The Child Support Guidelines - although each state’s Guidelines are different, they are not vastly different.  In both states, the Guidelines are applicable to families up to a combined income of $240,000 and over that amount, both states have similar case law for determining “above guidelines” child support.
• Alimony - Pennsylvania has a presumptive amount for temporary alimony defined as being an amount equivalent to 40% of the difference between the parties income; New Jersey has no such presumption.  Generally speaking, New Jersey is more liberal in awarding post divorce alimony in higher amounts and for longer periods of time.
• College expenses - a party’s responsibility for college expenses for the children may vary depending upon the state of jurisdiction

Procedurally, Pennsylvania and New Jersey are very different and depending upon the needs of each case, the respective procedure of one or the other of the states may be better suited or lesser suited to a particular case.

 In short, just as when one establishes a state of residency for real property tax reasons, personal income tax reasons or estate planning reasons, care should be taken to choose the proper jurisdiction for one’s divorce if, in fact, a person qualifies for jurisdiction in either state. 

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Mary W. Barrett, member of Stark & Stark's Community Associations group, authored the article The New Predatory Towing Act for the June 23, 2008 edition of the New Jersey Lawyer.

 

The article discusses the Predatory Towing Prevention Act, signed into law in October of 2007 by Governor Corzine, which primarily increases oversight of tow companies. Ms. Barrett discusses the impact The Act will have on a community associations abilities to tow vehicles from private property areas.

 

You can read the full article here (PDF).

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Last Summer, the New Jersey Legislature added  “affectional orientation” to the list of protected classes of people under the New Jersey Law Against Discrimination (NJLAD). Now New Jersey employers are faced with another tricky issue on a very practical level which may have not been considered by the Legislature.  How does an employer respond to a trans gender employee who wishes to use the bathroom of the opposite “biological” sex? For example, a biologically male employee who dresses as a woman wants to use the “ladies room.”  Should the employer allow this?  What about the other employees?  The courts in New Jersey have done almost nothing to answer these questions to date.  In a recent unpublished decision Opilla v. Parker, the Appellate Division sidestepped these issues in a case which would have otherwise provided employers with real guidance on this issue.  In Opilla, a trans gendered biologically male employee entered the women’s locker room of the corporate gym and allegedly stared at a semi-dressed female co-worker. The coworker was uncomfortable enough to complain about the incident to her employer and eventually filed a lawsuit. 


The court determined that one single incident of alleged discrimination would not rise to the severe and pervasive level required under NJLAD, thereby neatly avoiding the rather obvious issues presented in the case.  Other jurisdictions have taken on this issue and provide some guidance. For example, a Federal Court in Minnesota dealt with the trans gender bathroom question and made the following, seemingly reasonable determination:  If an employee presents “as a male,” the employee should use the mens bathroom – likewise if the employee presents “as a female,” the employee should use the womens bathroom.  While this is obviously not a perfect solution, and does not really address the issues other employees may have with sharing lavatories or locker room with transgendered coworkers, it is probable that this “middle of the road” solution will eventually become the law in New Jersey.  Only time will tell if New Jersey employers will take on the additional economic impact of creating a third “gender neutral” bathroom in their place of business.  

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Gary S. Forshner and Vincent J. Mangini, Shareholders of Stark & Stark's Real Estate, Zoning and Land Use Group authored the article Supreme Court Gives Developers Leg Up for the June 23, 2008 edition of the New Jersey Lawyer.

 

The article discusses the March 31, 2008 Supreme Court decision in Toll Bros. v. Board of Chosen Freeholders, in which the court held that a developer cannot be required by contract to provide offtract improvements that offend the nexus and proportionality test mandated by constitutional principles and by N.J.S.A. 40:55D-42.

You can read the full article here.

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In a case decided on June 17, 2008, a New Jersey appeals court distinguished the roles of a Custody Mediators from Parenting Coordinators in divorce cases.


Essentially, a Custody Mediator, whether court-appointed or privately chosen, is barred from making any recommendations to the court concerning custody or parenting time. A Parenting Coordinator, on the  other hand, whether appointed or chosen, may do so, although the court opined that the "preferable practice" would be to consult with the parents and their attorneys beforehand.

This case demonstrates the need for precise definitions in order to avoid unexpected or unpleasant results. If in doubt, consult an attorney before deciding how to proceed.

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David J. Byrne, Shareholder and Co-Chair of Stark & Stark's Community Associations group, authored the article New Jersey's Municipal Services Act Becomes an Adult: Only act in the union that requires municipalities to provide services to private communities for the June 23, 2008 edition of the New Jersey Law Journal.

 

The article discusses New Jersey’s Municipal Services Act as it turned 18 earlier this year. The Act states that a municipality must either provide certain services to a private community or reimburse that particular private community the cost of those services, including snow removal, collection of trash or recyclables, and the lighting of roads. Currently, New Jersey remains the only state in the union with such a statute. Mr. Byrne discusses the history of The Act, the effects The Act has had on community associations in New Jersey and how The Act relates to the New Jersey’s Planned Real Estate Development Full Disclosure Act.

 

You can read the full article here (PDF).

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