Divorce Lessons from Capt. Jack Sparrow

Fiscal Emergencies Alone Do Not Permit Public Employers to Adversely Affect Employee Compensation in Violation of Collective Bargaining Agreements

In re Robbinsville Tp. Bd. of Educ. v. Washington Tp. Educ. Ass’n, __ N.J. ___ (2016).  In Borough of Keyport v. International Union of Operating Engineers, 222 N.J. 314 (2015), the Supreme Court approved temporary layoffs of public workers where those layoffs were motivated by an economic crisis.  Importantly, as a backdrop those layoffs, “an […]

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Mandatory Post-ESP Mediation

If your case does not settle at Early Settlement Panel, you are required to attend a mediation session with a mediator, either from the approved list of mediators or any other mediator. If you choose a mediator from the approved list, the first two hours are free. The first hour is used by the mediator to read and analyze the issues in your case from your attorney’s submission, and the second hour is an in-person meeting with both parties and the mediator. Anything beyond two hours is paid for by the parties.

This is another excellent opportunity to settle your case. You have the ear of a highly experienced matrimonial attorney, as mediator, whose job is to try to close the bridge between you and your spouse on open issues. It is done at the mediator’s office where you might be altogether in one room for discussions of the issues, or you may be in separate rooms wherein the mediator will go back and forth in an attempt to settle your issues.

If the case cannot settle in one session, you can always make a second (or third or fourth) appointment if you believe it will be helpful.

You must always keep in mind the costs of litigation if you can’t settle. This opportunity is important to explore before your attorneys start preparing for a trial.

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Should You Appeal Your Added Assessment Tax Bill?

What Landlords and Tenants Should Do Before and After the December 1st Appeal Deadline

If the commercial property you own or rent has had recent construction and the Certificate of Occupancy (CO) was issued, it is likely the municipal assessor tacked on an added assessment to its regular assessment. It is also possible you may have received a tax bill for an omitted assessment, which has a similar deadline of December 1st.

While you may be already reeling from paying the non-residential development fee at the time of CO, as a taxpaying landlord or tenant, you should not shrug off the additional tax burden without giving thought to whether a formal or informal appeal of the added or omitted assessment should be made. As the December 1st deadline is rapidly approaching, now is a very apt time to consider whether the property is over-assessed and if you are paying too much in taxes.

By law, the municipality must provide notice to the property owner to the address on file with the municipality. N.J.S.A 54:4-63.7, -63.19 and -63.35. The notice may take the form of a letter and an additional tax bill, or just a tax bill. In either case, the added assessment will be clearly identified. These notices would have gone out in October, but it is not too late to formally challenge the assessment and file an appeal.

In order to appeal an added or omitted assessment, a petition must be filed by December 1, 2016, or thirty days from the bulk mailing of tax bills for added or omitted assessments, whichever is later. “Filing” means that the petition of appeal must be received by the County Board of Taxation at its offices by the close business on December 1 or, if December 1 is on a Saturday, Sunday or legal holiday, the next business day. This year, the deadline is Thursday, December 1, 2016.

The filing costs for an appeal are relatively modest at $150.00 or less. The Petition requires a submission of data on the property and a list of sales the taxpayer believes are comparable. However, with income-producing property, the value of the property is typically determined by an income approach which means that a qualified valuation witness must provide a written report utilizing the income and operating costs from a property and a capitalization rate applied to the net operating income. Usually, this witness is an appraiser who will use comparable leases and properties to come up with a market value based on data from several properties that may be different from the actual operating experience of the property under appeal. The appraiser may also rely on comparable sales for such properties or owner-occupied properties.

Handling an added assessment appeal can be tricky business because of the compressed timeframe within which an appeal is filed and when the County Board of Taxation hears the case and issues a judgment. Under ordinary circumstances, that is completed before year’s end and, in many cases, before Christmas. The evidence of value that a taxpayer needs to submit to support the appeal must be received by the County Board of Taxation seven days before the hearing date. Thus, an astute taxpayer must act quickly to challenge an added or omitted assessment. Depending on the complexity of the matter, an experienced tax-appeal attorney and an appraiser should be utilized. If a result is unfavorable, the taxpayer can file a Complaint to the Tax Court with 45 days of the mailing of the Board’s judgment.

Why bother to appeal? The tax bite for the added assessment alone may seem to be relatively modest, especially if it is for less than six months. However, it sets the total assessment for the next tax year and the taxes in some cases will double or even triple from previous levels. November, December, and early January are the best times to seek an adjustment of the 2017 tax assessment informally. If successful, the tax reduction is immediate and there is no need to file a tax appeal by April 1, which is the deadline for 2017 formal tax appeals.

Experienced tax appeal attorneys such as the tax appeal attorneys at Stark & Stark are very adept at these negotiations or, if necessary, filing and prosecuting formal appeals on the 2017 property assessments. Thus, the added assessment bill needs to be reviewed in terms of the anticipated tax bite for 2017 which likely will be substantially more than the tax bill for the added assessment alone.

If you have any further questions about an added assessment appeal or seeking assistance negotiating a reduction on the full 2017 assessment, please do not hesitate to contact Stark & Stark’s tax appeal attorneys.

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I Want an Oompa Loompa and I Want it Now

Ah, that unforgettable line uttered by Veruca Salt in Willy Wonka and the Chocolate Factory.  As a matrimonial attorney, this is what it feels like we deal with quite often.  But I am not referring to people just being demanding, I am talking about people making unreasonable demands, with no apparent justification in law or in fact.  In fact, I have had enough of “my client just wants”, “that’s not enough” and “I know that a court would never do that but my client insists” over the last several months to last me a career.

Some examples have been, in no particular order, demands for child support that exceed what the Guidelines would require by 7 to 10 times; demands for combined alimony and child support representing 60% or more of pre-tax income; demands for a buy out on the house for higher than the agreed upon value less the agreed upon mortgage; demands to share in exempt inheritances, trusts or family gifts that were never commingled; demands that one party get most of the marital assets because they were held in her name, though not exempt; demands for more than half of the assets, or 100% of the house free and clear of the substantial mortgage debt “because you caused the divorce.”

It is bad enough when an a litigant, who is uneducated about the law makes these demands.  That is to be expected because of ignorance of the law or raw emotions clouding judgment or both.  It is quite another thing when the client’s lawyer makes the demand, knowing that there is no rational or legal basis for the request.  As a younger lawyer, I remember incredulously asking an adversary, “Is your client really seeking 80% of the assets and 90% of my client’s net income?” to which the answer was yes.  Inevitably, when they are called on it, they sell their client out, saying how unreasonable they are, but they are just doing what they have been instructed to do.  Is that response good enough?  First, you wonder if they ever actually educated their client on the law (or whether they know it themselves).  If they have educated the client, is it proper to make a demand that is unreasonable, if not bad faith?

On the other side of the equation there may be the litigant that is willing to negotiate a reasonable resolution within the expected settlement parameters based upon the facts of the case (though often, water finds is level and where there is one unreasonable party, their spouse may be their mirror image in that regard.)  But what is the reasonable litigant to do?  They are often left with having to make the  “Hobson’s choice” of capitulating to the unreasonable party, or incurring the cost of litigation.  Worse yet, I have seen mediators, early settlement panelists, and even judges, try to pressure the reasonable party to settle because the other party wont budge, or split differences between the reasonable proposal and the unreasonable demand resulting in a slightly less unreasonable proposed resolution.  That said, I have seen these same judges, mediators or panelists use the threat that the unreasonable party may be required to pay the other party’s counsel fees as an effective deterrent.  Unfortunately, usually by that time, a lot of money has already been spent for something that should probably have been nipped in the bud from day one.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Two Appellate Division Judges are Nominated for Tenure

Governor Christie has nominated eighteen judges for tenure after their initial seven-year terms.  Two of those judges currently sit in the Appellate Division.  They are judges Gibbons Whipple and Vernoia.  Judge Gibbons Whipple has been serving on Part B, while Judge Vernoia has been a member of Part F. It is relatively rare for judges […]

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Supreme Court Will Review a Long Term Tax Exemption Law Case

The Supreme Court has announced that it has granted review in EQR-LPC Urban Renewal North Pier, LLC v. City of Jersey City.  The question presented in that appeal, as phrased by the Supreme Court Clerk’s Office, is “Do the 2003 amendments to the Long Term Tax Exemption Law, N.J.S.A. 40A:20-1 to -22, apply to these […]

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The “Tender Years” Hearsay Exception

State of New Jersey in the Interest of A.R., ___ N.J. Super. ___ (App. Div. 2016).  Judge Sabatino teaches at Rutgers-Camden Law School.  Students there pay to be educated by him.  Readers of his judicial opinions on evidence can get some of that same education for free.  Judge Sabatino has written a number of prodigious […]

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Another New Justice is Launched: Justice Timpone’s First Opinion

State v. Bryant, ___ N.J. ___ (2016).  As has been noted before, a new Justice’s first opinion is customarily a unanimous one in a relatively uncomplicated case.  Today, Justice Timpone authored his first opinion since taking the bench.  Fittingly, given Justice Timpone’s experience in criminal law, that first opinion deals with search and seizure issues. […]

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Appellate Division Oral Argument Dates and Attorney Vacations

The Appellate Division issued a Notice to the Bar today regarding oral argument in that court.  That Notice, titled “Oral Argument in the Appellate Division,” is available here. The Notice began by summarizing the right to oral argument and the proper method and timing for submitting a request for oral argument.  It then went on […]

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The Human Village Brewing Company Craft Brewery Opening Soon in Pitman, NJ

Congratulations to The Human Village Brewing Company, which opens on November 18th in Pitman, New Jersey.

The Human Village Brewing Co. began as “the shared vision of Emily Barnes and Megan Myers,” who began brewing their own beers as a hobby until it grew into its own company. Ms. Barnes has a background in chemical engineering, while Ms. Myers has a background in research and international studies. The brewery will have a “strong concentration in European styles” while still hoping to “emulate traditional brewing styles.”

To make reservations to the Grand Opening on November 18th, click here. To learn more about Human Village, please click here.

Marshall T. Kizner, member of the Stark & Stark Beer & Spirits Group, represents the brewery. Mr. Kizner focuses on assisting breweries, wineries, and distilleries in state and federal licensing, equipment leasing, financing, and employment matters. Additionally, he also has experience in commercial litigation.

The Stark & Stark Beer & Spirits practice is one of the only practices in New Jersey and Pennsylvania of its kind with a team dedicated to the needs of the craft and artisan spirits industry.

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New Jersey Superior Court Opines on a Child’s “Giftedness” in Published Child Support Ruling

Many parents want to believe their children are “gifted,” but do they know that this “giftedness” may increase their child support obligations?

Judge Jones’ new published (precedential) opinion, P.S. v. J.S. highlighted the distinction between a regular old “extra-curricular activity” and the pursuits of a “gifted” child, reaffirming that, where a child is “gifted,” the Court may deviate from the Child Support Guidelines to award supplementary child support in order to foster that child’s talents and providing some guidance on how the Court might assess whether a child is “gifted” in a particular area.

In many cases, the issue of extra-curricular activities is a big one.  Parents want their children to be able to enjoy sports, dance classes, acting lessons, singing lessons, and so on and so forth.  Most parents agree that such activities are important for a child’s enrichment and development.  However, there is often a question over whether the child support payor should contribute to these activities over and above his or her basic child support payment.

In P.S. v. J.S., the parties acknowledged that their daughter loved to act and that they wanted to support her theatrical endeavors.  The only question was whether the non-custodial parent’s child support payment already covered the cost of the daughter’s acting activity, or whether there should be an additional contribution over and above the child support payment.

In his opinion, Judge Jones began by recognizing that the Child Support Guidelines do, in fact, contemplate that the guidelines-based child support award will cover “entertainment expenses,” defined by law to include:

…fees, memberships and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Thus, “extra-curricular” activities are technically covered by a child support award calculated under the Child Support Guidelines.

But just when you think Judge Jones is going to “zig,” he “zags.”  Judge Jones went on to note that Comment 9(d) of the Child Support Guidelines

…expressly provides that the Court may in fact add supplemental funds to guideline-level support to help defray expenses for the development and special needs of a “gifted” child.  Under the guidelines, if a court deems a child to be “gifted” regarding a particular field or discipline, then it may be financially fair, equitable and appropriate for a court, upon application of a parent, to add a reasonable additional earmarked stipend onto both parents’ basic support obligation to help defray the costs of developing, enhancing and encouraging growth of a the child’s giftedness in a specific area.

The Court further held that the supplemental funds awarded to advance a gifted child’s development  “must be economically reasonable, with significant deference to each parent’s financial situation and actual ability to pay.”  In other words, there must be limits commensurate with the parents’ financial abilities.

The question, then, became whether the child at the center of the case was merely interested in acting as an extra-curricular activity, or whether she is a “gifted” actress.  Judge Jones opined that a child’s giftedness will generally relate “to a child’s aptitude , abilities and/or achievements” in one of four areas:  Academics, Athletics, Technology, or The Arts (though he did not foreclose other areas of “giftedness” outside these general categories).  In the particular case before Judge Jones, he found that the child in question was in fact “gifted” at acting.  As a basis for this ruling, he seemed to primarily rely upon two (2) interviews he had with the child approximately two years apart, and his observation that her dedication to and enthusiasm for acting had only seemed to grow in that time.  His decision did not, however, rest upon any sort of evaluation of her acting skills, as he acknowledged in his opinion that he had not observed her perform.  The decision suggests that a determination of a child’s giftedness may not rest upon his or her actual skill level alone.  In my opinion, the criteria for determining whether a given child is gifted will be tested and refined by further cases addressing this distinction between an extra-curricular activity and a gifted child’s pursuit.  Stay tuned…

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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The Eight & Sand Beer Co. Opening in New Jersey

Congratulations to The Eight & Sand Beer Co., which opened this month in Woodbury, New Jersey.

The Eight & Sand Beer Co. was started by two friends to “build a more sustainable brewery” by using “environmentally friendly steam rather than direct fire burners to heat [their] 10 barrel brewhouse.” Eight & Sand plans to feature “rotating taps in [their] tasting room, providing a different experience for every visit.”

The Eight & Sand Beer Co. is now open, and has Tasting Room Hours on Thursday through Sunday. To learn more about the Eight & Sand, please click here.

Marshall T. Kizner, member of the Stark & Stark Beer & Spirits Group, represents the brewery. Mr. Kizner focuses on assisting breweries, wineries, and distilleries in state and federal licensing, equipment leasing, financing, and employment matters. Additionally, he also has experience in commercial litigation.

The Stark & Stark Beer & Spirits practice is one of the only practices in New Jersey and Pennsylvania of its kind with a team dedicated to the needs of the craft and artisan spirits industry.

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Editorial: Tomorrow is Election Day

Tomorrow is Election Day.  This election presents one of the most consequential choices between major party candidates for President of the United States that this nation has ever seen. When appropriate, this blog has criticized both Democrats and Republicans.  This blog has never endorsed a political candidate and will not do so now.  This post […]

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An Attorney Disqualification Mess

Estate of Francis P. Kennedy v. Rosenblatt, ___ N.J. Super. ___ (App. Div. 2016).  Judge Nugent’s decision for the Appellate Division in this case today encapsulated in its opening paragraph the messy fact pattern that presented itself: “This interlocutory appeal involves a delicate and difficult conflict-of-interest issue that arose after plaintiffs’ attorney, who had filed […]

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Supreme Court Will Review A Megan’s Law Case and Another Criminal Matter

The Supreme Court announced that it has granted review (one on a motion for leave to appeal and one on a petition for certification) in two more criminal cases.  In State in the Interest of C.K., the question presented, as phrased by the Supreme Court Clerk’s Office, is “Does the imposition of Megan’s Law lifetime […]

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Foreclosures—New Jersey Recovery Still Slow

According to a September report from RealtyTrac, nationwide foreclosure rates have dropped 24% from a year ago. For the first time since the real estate crisis foreclosure timelines have also decreased. Experts suggest the reduction in timelines is the best indication of a full market recovery because it shows states are clearing the backlog of foreclosures.

Unfortunately this improvement has not carried over to New Jersey which still ranks #2 for the highest foreclosure rates. September figures show 1 in every 691 homes went into foreclosure proceedings in September. New Jersey also exhibited an increase in the time to foreclosure with a 7% increase that secured the #1 spot in the nation, averaging of 1262 days. This time estimate reflects proceedings started during the highest periods of foreclosure. It is expected that new foreclosure proceedings will close in a shorter time frame.

September foreclosure rates in cities over 200,000 in population brought good news to New Jersey. Although Atlantic City maintained position #1, its September rate improved month-over-month to 1 foreclosure in every 375 homes (vs. 1 in every 232 homes in August). Even better news is that in September Trenton fell off the Top 5 list (see foreclosure rates across the nation).

The states with the shortest foreclosure times have one thing in common—they have non-judicial foreclosure processes. This is not the case in New Jersey which has a judicial process and the longest foreclosure timeline. In New Jersey a foreclosure must go through the state courts. That means filing documents, finding time on court schedules, attending hearings, and multiple levels of paperwork. The large number of foreclosures started during the housing crisis and today have backlogged the courts and stymied banks from recovering on these bad debts.

What Can Banks Do to Recover on Bad Loans?

Housing inventory in New Jersey has been in a steady decline all year. Unfortunately for buyers the prices have been rising as well. This trend is good news for banks with foreclosure inventory. If they can get title to the desirable houses on the docket they can sell them below market value to recover their loan dollars and perhaps even make an expense-covering profit. If the bank has to wait 1262 days, that is not as likely an outcome—there is no way to predict where the market will be in 3-4 years.

This is where an attorney becomes valuable. A bank that is overloaded with customer service issues or does not have enough experienced negotiators to work with homeowners, should use its attorney to independently reach out to mortgage holders to resolve the foreclosure. Depending on the desirability of the home and the size of the existing foreclosure stock, the best strategy may be to get title by directly offering a deed-exchange. This process allows the borrower to transfer all interest in the property (i.e., transfers the deed) to the lender to satisfy the loan and avoid foreclosure. Both parties win. The bank expediently secures 100% ownership of the property so it can dispose of the liability and the borrower gets out of a loan he cannot pay without going through the foreclosure process.

New Jersey is not experiencing the same kind of foreclosure recovery as the rest of the country. The trends indicate that New Jersey is a long way from market stability. Foreclosure starts continue and time to foreclosure has increased. Simultaneously the market inventory is going down and prices are rising.

If the foreclosure timeline continues to increase, banks involved in the long-term foreclosure process can expect increasing costs and loss of market opportunity to clear inventory during the growing demand period. Given this news, banks in New Jersey may wish to find more creative ways of clearing the docket. The choice a bank makes now—whether it is to complete the long foreclosure process or make alternate arrangements with the borrower—could impact debt-recovery well beyond the running foreclosure completion period.

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Read Mark Ashton’s Post “Listening to Your Kids During Traumatic Times”

Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and former editor of our Pennsylvania Family Law Blog wrote an interesting post entitled “Listening to Your Kids During Traumatic Times” .

In this post, Mark, from a child’s perspective, lists 15 things that parents going through this process should consider, as follows:

1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”

2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.

3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.

4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.

5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.

6. It really, really hurts when you don’t show up for something we have scheduled.

7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”

8. When I’m with you, I do miss my other parent and that does not diminish my love for you.

9. I am not staying with you to provide information about what the other parent is doing.

10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.

11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.

12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.

13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.

14. If there is bad news, please don’t ask me to be the courier.

15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

I recommend that everyone take a minute to read the entirety of this very thoughtful piece.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Justice Delayed is Justice Denied – How the Systemic Delay in Having Matters Adjudicated Causes Litigant’s to Lack Confidence in the Judicial System and Makes Cases Harder to Resolve

“Justice delayed is justice denied.”  I am sure that many have heard this old legal maxim.  Though the original source is unclear, what is not unclear is that it essentially means that when a legal remedy is available, but not provided in a timely fashion, it is like having no remedy, at all.

When I speak to other attorneys in court, at mediations or at bar events, one of the things discussed most is the delay in getting matters decided.  While the discussion is sometimes about a trial decision, most of the time we are talking about routine motion practice both during active divorce cases and during post judgment cases.  For a trial, especially a long one, it is more understandable.  Very often the attorneys want to review the transcripts and otherwise have a month or more from the close of the evidence to submit written summations.  Moreover, in addition to their jam packed daily dockets, the judge needs time to review the evidence and prepare a thoughtful and comprehensive (hopefully) written or oral decision.  That said, I have been in involved in cases where it has taken more than a year from the end of a trial to get a decision.  I have heard, anecdotally, of people getting trial decisions more than 2 years after the close of the evidence.  In addition, several years ago, we heard that one judge was not permitted to start any more trials due to the number of completed trials that were not decided.  A moment ago I said that “hopefully” you then get a comprehensive decision, but very often, it seems that decisions are either incomplete, or certain findings of fact simply wrong, most likely due to the passage of time between when the testimony heard and evidence presented, and the completion of the opinion.  During this time, peoples lives remain on hold and temporary support orders which might be too high or too low remain in effect.  In the off chance that they are adjusted by the trial decision, that could create a huge arrears or huge credit to a party.  If they are not corrected, then one party had to live with a potentially unfair result for a very long time.

While there are delays in receiving trial decisions, while more understandable, this impacts fewer litigants than delays in receiving motion decisions because a very small percentage of cases are actually tried to conclusion.  On the other hand, motions are heard every Friday or every other Friday depending on the county and the judge.  Now, the rule regarding motions in family part cases, specifically R. 5:4-4(f), clearly states:

(f) Orders on Family Part Motions. Absent good cause to the contrary, a written order shall be entered at the conclusion of each motion hearing.

Unfortunately, all too often, this Court Rule is honored in the breach and the decision on the motion is delayed days, weeks, months or even years.  Yes, I said YEARS.  I have one pre-judgment motion that was filed nearly 2 years ago, in large part regarding the payment of college for the first child.  A second child is now in college and there is still no decision.  The matter, which was supposed to be tried more than a year ago, has basically been shut down for 22 months and counting.  I have another motion that is pending for more than 15 months.  We have others which have been pending for several months, including ones that are seeking either financial restraints or restraints related to children which are being flaunted while no decision is made.  I hear similar stories from many or our colleagues and adversaries.

Note too that these delays are on top of the delays in getting the motion heard in the first place.  It is not unusual for a motion to be delayed based upon an adversaries request for an adjournment.  Since first adjournment requests are almost universally granted, even when there is time of the essence on certain issues, it is most often fruitless to oppose them – though sometimes you have to.  Very often, motions are administratively adjourned because the judge’s motion calendar for the selected day is full or the judge is otherwise unavailable.  When that adjournment is added to the first adjournment request, which at that point possibly shouldn’t be granted but is granted anyway, then the motion is heard about one month after the original return date and about 2 months after it was filed.  Some judges, however, despite demanding that all papers be filed as if the motion is going to be heard, do not schedule oral argument on the motion for weeks or months.  That is then compounded when that same judge doesn’t decide the motion on the day of argument as required by the Court Rules.

What is the outcome of this delay?  For a party who is cut off financially by their spouse, they could go weeks, if not months, with little to no money at all.  When it is an enforcement motion, the violator is often empowered by the lack of a decision and doubles down in his or her violation of court Orders because they feel impervious to sanctions.  When restraints are sought and adjudication is delayed, the risk of a new status quo being improperly created or parties or children harmed because you cannot “put the genie back into the bottle”, or the money is gone, or worse yet, a child is physically or emotionally hurt, are real results of justice delayed.

The other outcome is that the harmed litigant loses faith in the judicial system. They have not been treated fairly by the delay and feel that they will never receive a fair result from the judge that they believe does not care about their case – or worse yet, they feel that the judge is harming their case if not their children and/or their life. Sometimes this results in them losing faith in their lawyers too.  Sometimes it makes cases harder to settle because decisions that could have nipped issues in the bud or shaped a fair resolution of the case do not happen or come too late and then the fight is how to fix the mess created by the delay or counsel fees created by it.  And who do you complain to?  Do you risk a negative result on the pending motion or future appearances before that judge by writing to the Presiding or Assignment Judge?

The only ones who seem to benefit from this delay are mediators or arbitrators, who the parties now have to pay because they cannot get timely relief from the court.  There is something very unfair about that, though this happens every day.  Clients suffer and the system as a whole suffers as a result.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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No Valid Settlement With DEP Absent Signature and Public Notice of Proposed Settlement

Cumberland Farms, Inc. v. New Jersey Dep’t of Environmental Protection, ___ N.J. Super. ___ (App. Div. 2016).  Plaintiff (“CFI”) operates convenience stores and gas stations in many locations in New Jersey.  Hazardous substances are discharged at some of those locations.  Defendant (“DEP”) offers a settlement process under which parties responsible for potential damage to natural […]

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Three More Cases for the Supreme Court

The Supreme Court announced that three more cases have been added to its docket.  State v. Carrero, Jr. is before the Court by virtue of a dissent in the Appellate Division.  The question presented there, as phrased by the Supreme Court Clerk’s Office, is “Did the evidence elicited in this trial for first-degree murder support […]

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Free Seminars Examine the Differences between Collaborative & Litigated Divorce

Stark & Stark Shareholder Maria P. Imbalzano and Associate Corrine E. Cooke will be presenting three upcoming seminars entitled Understanding the Difference between a Collaborative Divorce & a Litigated Divorce. Each seminar will be held on a different time and day but the content will be identical.

The seminar will examine the aspects of collaborative divorce, which is a process wherein both parties agree to resolve their divorce outside of court. Instead, the parties work through all of the issues civilly, constructively, and with an open mind to any alternatives available to settling these issues.

Each seminar will cover the same content, but take place on different dates and times. The first seminar will be on November 16th from 8:30am to 10:00am, the second on November 18th from 12:00pm to 1:00pm, and the third and final on November 21st from 5:30pm to 6:30pm. All seminars will be held in the Stark & Stark Lawrenceville office.

Shareholder Maria Imbalzano is a member of Stark & Stark’s Family Law and Divorce Group. Ms. Imbalzano concentrates her practice in divorce, custody, adoption, and family law mediation. Additionally, she is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney and is a court-approved family law mediator.

Associate Corrine Cooke is a member of Stark & Stark’s Family Law and Divorce Group, and she concentrates her practice on divorce proceedings and post-judgment litigation. Ms. Cooke also handles custody, alimony, child support, and equitable distribution.

To learn more about the upcoming seminars and dates, please click here.

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Amending a Construction Lien Claim

At times, it may become necessary to amend a construction lien claim after if it is initially filed. The relevant statutory authority which addresses this issue is codified by N.J.S.A. 2A:44A-11. In general, this section provides that a lien claim may be amended for any appropriate reason, including but not limited to, correcting inaccuracies in the lien claim or errors in the original form, or revising the amount claimed in the lien claim. The amendments may be made due to additional materials or services being provided, a partial payment of the lien claim, or a release of a proportionate share of interest in the property due to a partial payment. Like the original lien claim, the amended lien claim must be filed with the county clerk and shall comply with all the conditions or requirements for filing an original lien claim, including but not limited to, the notice requirements required by the statute.

The main issue to be addressed with regard to amended lien claim, however, is that a lien claim may not be amended to cure a violation of N.J.S.A. 2A:44A-15. What this means is that a lien claim may not be amended to cure a fatal error with the original lien claim that was filed. As such, a lien claim may not be amended if there is no contract to support it, if it is willfully overstated, if it was not filed in time, or the original form was not appropriate for the type of lien claim that was filed. As such, the original lien claim must have been valid on its face when originally filed, as an amendment thereto may not cure any such fatal error. For example, an issue may occur if a lien claimant attempts to file a residential lien claim in the form which is utilized by a commercial lien claim. Should this party now be out of time to correctly file a residential lien claim, it would be unable to amend the lien claim to comply with the requirements of the relevant residential lien law. Furthermore, if the lien claim was initially filed against the wrong entity, a lien claim may not be amended if the original entity which was not properly noticed of the lien claim. As such, although amendments to lien claims are generally permitted, they are subject to certain prohibitions.

The attorneys at Stark & Stark are well versed in the relevant sections of the New Jersey Construction Lien Law and are able to assist in either filing or defending against improperly filed lien claims.

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