NJSBF.org

Dedicated To Educating The Public About New Jersey Law

Legally Speaking

The New Jersey State Bar Foundation offers a FREE Speakers Bureau, where volunteer attorneys address school, community and senior citizen groups throughout the state on numerous areas of the law. In our Legally Speaking series, which is posted to our Facebook page on Thursdays, an attorney from the Foundation's Speakers Bureau answers a general legal question. 

 

Please note the information provided in Legally Speaking is general information and does not constitute legal advice, which should only be given by retained counsel. 

 

To request a speaker through our Speakers Bureau, click here. For attorneys that would like to become a member of the Foundation's Speakers Bureau, click here. NOTE: To join the Foundation's Speakers Bureau, you must be a member of the New Jersey State Bar Association.

 

February 27, 2017

CAN I TRIM THE BRANCHES OF THE NEIGHBOR'S TREE THAT HANGS OVER ONTO MY YARD?

New Jersey common law allows a property owner to trim the overhanging branches of a neighbor's tree if they constitute a nuisance. However, the property owner must exercise due care when doing so. If the property owner does not, he or she could be forced to pay money to the neighbor if the actions taken result in damage to the neighbor's property or tree. In fact, if the owner knowingly or recklessly damages a neighbor's tree when trimming the branches, he or she could commit a crime of the third degree. Consequently, before a property owner takes it upon him or herself to trim the overhanging branches, he or she should speak with the neighbor to see if the matter can be resolved.—Michael S. Selvaggi, Esq., Lavery, Selvaggi, Abromitis & Cohen, P.C.

 

February 20, 2017

CAN I GET MY MONEY BACK IF I AM THE VICTIM OF A SCAM?

The answer is: it depends. A victim of a scam has recourse in the courts. The victim can sue the scammer and get a judgment against the person for fraud but that does not mean the victim will "get their money back" since the scammer may not have assets to attach with the judgment or, as is probable in most fraud crimes, the identity of the scammer may never be known. A victim can also report the scam to criminal authorities who may be able to find the scammer and charge the person with a crime. Sometimes a person convicted of a crime will be required to make restitution to the victims in the form of repayment of the amounts taken. Most states, including New Jersey, have strong consumer protection statutes that can also provide some recourse especially if the scammer is a business.

 

Finally, the victim of a scam should check their homeowner's or renter's insurance policy as sometimes there is coverage for such losses. Bottom line, if it sounds too good to be true it probably is a scam, so vigilance against scammers is the best defense.—Stephen V. Falanga, Esq., Walsh Pizzi O'Reilly Falanga, LLP

 

February 13, 2017

IF I AM CALLED TO SERVE IN THE MILITARY, IS MY EMPLOYER REQUIRED TO HOLD MY JOB FOR ME UNTIL I RETURN?

The simple answer is "probably, but maybe not." Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), an employer must re-employ an employee if he/she (1) gives advance notice of the service; (2) has 5 years or less of military service with that employer; (3) returns to work in a timely manner; and (4) was not separated from service with a disqualifying discharge or under other-than-honorable conditions.

 

If these conditions are met, an employee is generally entitled to reemployment. Multiple New Jersey laws also provide employees with reemployment rights. For instance, the Law Against Discrimination prohibits discrimination on the basis of liability for service in the armed forces. Keep in mind, however, that USERRA and state laws often make it difficult to know precisely what employers' and employees' obligations and rights are. In fact, there are situations in which employers are not required to hold a job for someone in the military. So, it is always best to ask a question than to assume. —Timothy D. Cedrone, Esq., Apruzzese, McDermott, Mastro & Murphy, P.C.

 

January 19, 2017

what should a divorcing couple know about the process of using a divorce mediator and what are the benefits?

Mediation is a process where the parties work with a Mediator, who serves as a neutral and balanced facilitator. The Mediator assists them in defining their issues and problems. The Mediator helps them work through these issues and problems, so they can arrive at a mutually acceptable solution for them and their family. The settlement includes how they will share parenting responsibilities with the preparation of a Parenting Plan that works for them and their children. It will also resolve all financial and any other related issues.

 

In mediation, all decisions are made by the couple with the Mediator's assistance. This is called "self-determination" and is a major benefit of mediation. Other benefits of mediation include: 1. confidentiality and privacy of the process; 2. the safety and security of the process; 3. an efficient use of time; 4. monetary savings, as mediation is a more cost effective process as opposed to litigation, which can take years and cost huge amounts of dollars; 5. improvement in the parties' ability to communicate; and 6. mediation provides reassurance to the parties that they can and will survive financially after a divorce. Moreover, a successful mediation will provide the parties with a "road map" for their future lives. —Bonnie Blume Goldsampt, MA, JD, Accredited Professional Mediator

 

 

January 12, 2017

DO FATHERS HAVE THE SAME RIGHT TO CHILD SUPPORT AS MOTHERS?

In New Jersey, all parents have an obligation to financially support their children, whether the children were born of a marriage or of a dating relationship. Child support is paid to the custodial parent of the child, regardless of that parent's gender. As there are many cases wherein the father is deemed to be the custodial parent for the children born of the relationship, custodial fathers are just as entitled to the payment of child support as custodial mothers are. For example, should a father be identified as the custodial parent, the mother would then need to pay the father an appropriate amount of child support. Custodial arrangements may be entered into either by ruling of the Court or by agreement of the parties.

 

Child support is a right that belongs to the child and not to the parent, meaning that a parent may not waive child support on the child's behalf. In most cases, child support is calculated by using a formula identified as the New Jersey Child Support Guidelines. These guidelines take into consideration many factors, including but not limited to the following: each parent's income, the amount of overnights spent with each parent, health care premiums, and more. As calculating the appropriate amount of child support is an important part of your custodial relationship, it is imperative that you consult with a New Jersey Family Law Attorney in order to ensure that the ongoing financial needs of your children are met, whether you are just beginning the negotiation phase of your custodial arrangement or you are engaged in post-judgement motion practice.—Amanda J. Muhaw, Esq., Atkinson & DeBartolo, PC

 

 

January 5, 2017

HOW IS MEDIATION DIFFERENT FROM LITIGATION AND WHAT KINDS OF CASES CAN BE MEDIATED?

Litigation is a duel between warring factions. The attorney is the champion for his/her client and uses whatever weapons are in the attorney's arsenal to win the war. There are many battles between the parties before one is declared the winner by the judge. Mediation is a process wherein an impartial mediator facilitates discussion between the parties to arrive at a solution, which is satisfactory to all.

 

Any kind of case can be mediated. In the commercial setting one can mediate cases as different as breach of contract and employment discrimination. In the construction industry all areas of dispute involving the construction of both commercial and residential buildings can be mediated including damages for delay and poor workmanship. Issues involving home improvements can also be mediated. In family matters, parties can enter into divorce mediation to reach an agreement prior to going to court. Families can mediate issues involving custody of children as well as issues relating to aging parents. In probate matters, families can mediate any disagreements relating to undue influence and will contests. As long as all parties involved agree to mediate there is no limit on the type of matter that can be mediated.—Linda F. Spiegel, Esq., NJ Court Approved Mediator and Arbitrator, Law and Mediation Office of Linda F. Spiegel, Esq.

 

December 22, 2016

under what circumstances may a landlord enter a rental property without the tenant's consent in new jersey?

The simple and obvious answer is, no, a landlord cannot enter a rental property without the tenant's consent. New Jersey has one of the most liberal, pro-tenant laws in the country save California. A tenant's right to peaceful possession of its rental property is strongly protected. A landlord has no right to enter a tenant's rental home without a court order or the consent of the tenant. Even with a court order, such as an order of eviction, a landlord cannot, without the aid of a constable or sheriff's officer, enter the rented space. There is one exception, however. An inspection of an apartment, which is part of a multiple dwelling by the N.J. Bureau of Housing Inspection or for inspection and maintenance by the landlord is permissible without the tenant's consent. Such inspections and maintenance require reasonable prior notice, which has been held to be a minimum of one day. Such entries must also be reasonable; they can't be a nuisance. Of course, entries without advance notice are permitted in the case of fire, structural or health and safety emergencies. —Donald B. Veix, Esq., Antheil Maslow & MacMinn, LLP

 

December 15, 2016

Can I make a Handwritten Will?

A handwritten will, also referred to as a holographic will, is valid as a will, under NJSA 3B:3-2, if it is signed by the testator, whether or not it has been witnessed, and if the material portions of the document are in the testator's handwriting. Where the requirements of NJSA 3B:3-2 is not met, then clear and convincing evidence will need to be presented by the proponent of the will to show that the document was intended to be the testator's will to be admitted to probate, as laid out under NJSA 3B:3-2. —Allison J. Busch, Esq., Hartman Doherty, LLC

 

December 8, 2016

ARE THERE LAWS RESTRICTING A PERSON'S RIGHT TO OPERATE A BUSINESS FROM HOME?

As with most legal questions, the answer is that it depends. For the most part, people are legally allowed to operate a small business from their home. For example, an attorney can operate a law practice from his or her home, since it provides a brick and mortar location to store files. However, other types of businesses may have restrictions, which a home cannot accommodate. For example, you could not operate a restaurant out of your home if it is not zoned for such a purpose. Anyone wishing to start a home business should consult an attorney to determine the restrictions in his or her residential area. —Ahmed M. Soliman, Esq., Soliman & Associates, P.C.

 

December 1, 2016

WILL MY ESTATE HAVE TO PAY TAXES AFTER I DIE?

New Jersey residents face three possible "death taxes"—inheritance tax, NJ estate tax and federal estate tax.

 

If you leave property to someone other than your spouse, children, grandchildren, parents or a charity, then your heirs may have to pay inheritance tax. If you leave property to your brother or sister, niece or nephew, boyfriend or girlfriend, or friend, for example, they may face inheritance tax.

 

If you own more than $675,000 in property when you die, your estate may have to pay New Jersey estate tax. However, the state recently increased this amount to $2,000,000 for deaths in 2017. Deaths in 2018 or later face no New Jersey estate tax (unless the law is changed).

 

Federal estate tax only affects people with more than $5.5 million when they die (or who have made enormous gifts during their lifetime). Chances are, it won't affect you. And if it does, hopefully you already have a good lawyer. —Mark R. Friedman, Esq., FriedmanLaw

 

 

November 17, 2016

HOW DO I REBUILD MY CREDIT AFTER DECLARING BANKRUPTCY?

Many people erroneously assume that there is a certain designated period after they receive a discharge in bankruptcy where they are ineligible to either apply for or receive new credit cards or other debt. This is entirely untrue. While a bankruptcy filing generally remains on your credit report for 10 years and you are ineligible to receive another bankruptcy discharge for between 2 to 8 years, depending on which type of bankruptcy you filed, (7 or 13) there is NO prohibition whatsoever on obtaining new debt obligations, after your bankruptcy case in concluded.

 

So, the issue is not IF you can obtain new credit after bankruptcy but HOW. This requires following certain steps. As most secured debts such as home mortgages, car loans and leases are generally unaffected by a bankruptcy filing and will continue as financial obligations after your bankruptcy case is concluded, you should scrupulously keep all such obligations current and paid on time. If you rent where you live, the same advice applies to your monthly rent payments. Your timely payment history will be reported by your creditors to each of the three major credit reporting agencies and help to rebuild your credit.

 

Contrary to popular belief, obtaining new credit cards post-bankruptcy is usually not very difficult. While you may be required to pay a higher interest rate than someone with excellent credit, you probably will be approved for new credit cards. You should obtain 1 or 2 new credit cards. Use them, but be conservative in keeping your balances within your ability to repay easily and ON TIME. Don't go overboard in applying for new credit cards, even if you don't plan on using them, as the amount of your "Available" credit relative to your income will be used in determining your FICO credit score and may even lower it. —Michael L. Detzky, Esq., Detzky, Hunter & DeFillipo, LLC

 

November 10, 2016

DO I HAVE TO BE INJURED AT MY WORKPLACE TO BE COVERED BY WORKERS' COMPENSATION?

Your work injury may be covered by workers' compensation even if you were not on your employer's premises when the accident happened. For example, a police officer is rarely in the police station, but if he or she is injured in the line of duty at a private residence while on his or her regular shift and while making an arrest, the incident will be "compensable." Not all off-premises accidents are covered by workers' compensation, however; accidents that happen before you clock in or after you clock out might not be covered. The law requires the court to look at each case individually, and determine whether the injured worker was engaged in duties arising out of and in the course of employment at the time the accident occurred. The court also examines the extent to which the employer controlled the off-premises employee's activities at the time the accident occurred.—Linda T. Pirolli, Esq., Pirolli & Pirolli

 

November 3, 2016

In New Jersey, can a person take time off work (with pay) to vote?

There is no federal law that requires employers to provide time off from work to vote. Therefore, the answer to your question turns on state law.

 

In New Jersey, there is no state law that entitles an employee to take time off from work to vote (either with or without pay). As a result, it is very important to plan ahead and find out whether early or absentee voting is available to you. If so, you may want to vote early or absentee in order to avoid being unable to cast your vote on Election Day due to a work conflict.

 

In New York, state law requires that, for employees who do not have “sufficient time” outside of working hours to vote at any election, the employer must allow the employee to take off as much time as will allow the employee to vote, and up to 2 hours of the time off must be paid. If the employee has 4 consecutive hours between the opening of the polls and the start of the work shift, or between the end of the work shift and the closing of the polls, then the employee has “sufficient time” and is not entitled to time off to vote. Importantly, the employee must notify the employer of his/her need for time off to vote no less than two and no more than 10 working days before Election Day. —Lisa Manshel, Esq., Manshel Law, LLC