BrachEichler LLC Blogs Feed Jan 2019firmwise Rules Against Spouse For Destroying Evidence of Illegal Surveillance Jan 2019Blogs<p style="margin: 0in 0in 0.0001pt; line-height: 13.5pt; background-image: initial; background-position: initial; background-size: initial; background-repeat: initial; background-attachment: initial; background-origin: initial; background-clip: initial; vertical-align: baseline;">As an update to our New Jersey Law Journal <a href="">article</a> from last July, we continue to monitor cases that involve spouses that utilize electronic surveillance during their divorce action to spy on their spouse. According to an <a href="">article</a> in the January 7 issue of the New York Law Journal, a husband was sanctioned for destroying evidence on his wife obtained through surveillance. Moreover, the husband has been sued for allegedly violating the Federal Wiretap Act. Again, we caution parties seeking to use surveillance as part of their divorce strategy to proceed carefully. This is an instance where the husband may have gone too far.<br /> <br /> If you have family matters involving divorce, custody or post-judgment action, Brach Eichler&rsquo;s team of family law attorneys are highly skilled in these areas, particularly high-conflict cases. We represent clients from mediation through trial and appeal.</p> Decision Reaffirms Need for Plenary Hearing On All Contested Child Custody Matters Jan 2019Blogs<p>The recent Appellate Division decision, <em>J.G. v. J.H.</em>, approved for publication this month, reaffirms the principles set forth by New Jersey Courts that a plenary hearing is necessary, if not required, when making determinations concerning parenting time, custody, and a child&rsquo;s best interests, whether the parents, are married, divorced, or unmarried and custody is contested. The decision confirms that there can be no distinction regarding the parent&rsquo;s marital status. It further affirms that consideration of the custody factors (N.J.S.A. 9:2-4(c)) is required, with the parties being afforded the right to have mediation, discovery, lay, and expert testimony and an evaluation of the child&rsquo;s best interests. Courts may limit the scope of discovery but should not deny it outright without good cause. While the case does not provide anything entirely new, it does reaffirm the core principles in contested child custody matters that a fair plenary hearing must be undertaken with consideration of all the factors in N.J.S.A. 9:2-4 before a court may decide a parenting and custody arrangement that serves the child&rsquo;s best interest. This applies to all family part dockets.<br /> <br /> If you encounter matters concerning custody or parenting time, Brach Eichler&rsquo;s team of family attorneys are highly skilled in the area of child custody matters, particularly high conflict cases, which includes representing clients from mediation through trial and appeal.</p> Changes Remediation Investigation Public Notification Requirements Dec 2018Blogs<br /> The New Jersey Department of Environmental Protection (&ldquo;NJDEP&rdquo;) announced amendments to the Administrative Requirements for the Remediation of Contaminated Sites (&ldquo;ARRCS&rdquo;). These amendments include an update regarding Notification and Public Outreach. Specifically, NJDEP will require public notification within 14 days of initial field activities for a remedial investigation. N.J.A.C. 7:26C-1.7. Formerly, the notification was required after commencement of remedial action activities. For any case where a remedial investigation was initiated prior to August 6, 2018, the public notification is now due. However, there is a grace period.<br /> Announces Updated Pesticide Remediation Technical Guidance Dec 2018Blogs<p>The New Jersey Department of Environmental Protection (&ldquo;NJDEP&rdquo;) has issued updated technical guidance regarding pesticides. According to NJDEP, this guidance offers a more streamlined approach to the investigation, delineation, and remediation of historically applied pesticides (&ldquo;HAP&rdquo;) than the previous guidance, which was issued in 1999. This updated guidance only applies to HAP, which is defined as &ldquo;any organic or inorganic chemical which has been and is no longer used for pest control, and that has been found to have long-lived residues and lasting health and environmental impacts. [HAP] does not include the manufacture, mixing, or other handling of these chemicals that result in a discharge. The pesticides of concern include, but are not limited to, arsenic, lead, DDT (and its metabolites, DDE and DDD), dieldrin, aldrin and chlordane.&rdquo;</p> <p>The guidance provides that if the sampling results indicate HAP are present at concentrations exceeding applicable standards, under the Administrative Requirements for the Remediation of Contaminated Sites (&ldquo;ARRCS&rdquo;) and the Technical Regulations, then remediation must occur pursuant to the NJDEP rules and regulations. This guidance does provide for exceptions for agricultural property and active golf courses. For those sites, the remediation can be deferred until the property is no longer being used for either of those purposes.</p> Posts Expired UST Registrations Dec 2018Blogs<p>The New Jersey Department of Environmental Protection (&ldquo;NJDEP&rdquo;) announced that it has added a new report to its DataMiner records site. Specifically, the NJDEP has posted a report that provides a list of all underground storage tank (&ldquo;UST&rdquo;) facilities with expired UST registrations. NJDEP asserts that the report was created to ensure that UST facilities are properly registered, prior to fuel being delivered, to assist fuel suppliers. NJDEP can issue violations to fuel suppliers if they deliver fuel to a UST that is not properly registered. The report can be searched by county and is available in both PDF and Excel format.</p> Expands MLUL's Definition of "Interested Party" Aug 2018Blogs<p>In the case of <em>Cherokee LCP Land, LLC v. City of Linden Planning Board</em>, the NJ State Supreme Court has expanded the definition of &ldquo;interested party&rdquo; in the Municipal Land Use Law (MLUL) to include the holder of a tax sale certificate. The Court considered whether the holder of a tax sale certificate has standing as an &ldquo;interested party&rdquo; to challenge a planning board&rsquo;s approval of a land use application for a neighboring property. The Court ruled that tax lienholders can have standing to challenge a planning board&rsquo;s actions, however, this is &ldquo;not in and of itself determinative to standing.&rdquo; A tax lienholder must also show that its right to use, acquire, or enjoy property, is or may be affected by the planning board&rsquo;s action. While the ruling stops short of giving all tax lienholders automatic standing, it is significant as it still increases the potential pool of challengers to a planning board&rsquo;s decision. This arguably gives those with the most speculative of future interests in neighboring properties to use the MLUL to challenge the decisions of the municipal planning board.</p> Costs After Divorce: Agreement for Child to Take Out Loans Rendered Unenforceable Aug 2018Blogs<br /> Once again, New Jersey provides a conflicting remedy for a child of divorce attending college compared to a child in an intact family. In an unpublished (non-precedential) decision, the Appellate Court affirmed a trial court order finding that a child was not bound by a property settlement agreement requiring her to apply for college loans. Carl J. Soranno, Esq. of the Family Law Department previously wrote on this issue for the New Jersey Law Journal in January of 2015. Unfortunately, it appears that the situation for divorced parents has only gotten worse.<br /> <br /> The parents in <a href="" target="_blank">M.F.W. v. G.O.</a> were divorced in 2003. At the time their daughter was five years old. The parties entered into a property settlement agreement which required both parents to contribute toward college expenses. The Agreement also required their daughter to apply for all &ldquo;loans, grants, aid, and scholarships available to her, the proceeds of which shall be first applied to college costs.&rdquo; In 2016, the daughter was accepted at Georgetown University &ndash; a school with a first semester tuition of over $30,000. The parties then filed motions over the payment of the daughter&rsquo;s education costs and child support (among other issues not addressed in this post).<br /> <br /> On the issue of college costs, the trial court ruled that it was &ldquo;unfair and unjust&rdquo; to require the child to apply for and utilize &ldquo;loans, grants, aid, and scholarships&rdquo; before the parents would be required to contribute. The court also found a change in circumstances warranting a modification of the Agreement; i.e., both parents&rsquo; incomes and assets had increased since the divorce. Consequently, the court determined that the parties could afford to send their daughter to Georgetown University without requiring their daughter to apply for loans first. The Appellate Division affirmed the trial court&rsquo;s decision, which was reached without a plenary hearing. The Court wrote that &ldquo;because it was the parents&rsquo; obligation to pay for college and they had the ability to do so&rdquo; it was unfair for the daughter to obtain loans.<br /> <br /> The <a href="" target="_blank">M.F.W. v. G.O.</a> decision is another blow to divorced parents. While intact families can make the decision about whether and how they want to contribute to their child&rsquo;s college education, divorced parents are forced to abide by a judge&rsquo;s determination on how to finance college. The parents in <a href="" target="_blank">M.F.W. v. G.O.</a> tried to make their own decision in their settlement agreement on how to pay for college, only to have the court reject their agreement in favor of the child. The provision included in the parties&rsquo; settlement agreement was standard and is included in many settlements. Although the parents&rsquo; income had increased (from approximately $130,000 per year combined to $300,000 per year combined), it will still be difficult to pay tuition of over $30,000 per semester with no financial contribution from the daughter. It is discouraging that parties could enter into these terms only to find out years later that they are unenforceable. In sum, divorced parents who litigate over college costs have little to no control over the outcome.<br /> <br /> Although the bulk of the <a href="" target="_blank">M.F.W. v. G.O.</a> decision creates a legal headache for divorced parents and family law practitioners, the opinion did affirm the trial court&rsquo;s decision not to hold a plenary hearing on the issue of college costs and child support. Most prior decisions on similar issues confirmed the need for a plenary hearing &ndash; and thus created a significant cost to any litigant seeking the relief. Nevertheless, the <a href="" target="_blank">M.F.W. v. G.O.</a> decision confirms the risk for parents litigating college costs. Although avoiding a plenary hearing can save money for a client, the risk over what the judge will order regarding college costs outweighs any benefit.<br /> Updates Jun 2018Blogs<p>In a flurry of legislative activity in New Jersey and New York this year, several new laws have been recently adopted in each state. As a recap, here is a list:</p> <ul> <li> <p>New Jersey&rsquo;s new Equal Pay Act, effective July 1, 2018, amends the New Jersey Law Against Discrimination (&ldquo;LAD&rdquo;). This new law provides significant new money damages and extends the statute of limitations for aggrieved employees of any protected characteristic (not just gender) who claim a pay disparity. The new law also places the burden on the employer to justify any pay disparity that exists. Also, expect several more employment laws to be signed into law in calendar year 2018 in New Jersey.</p> </li> <li> <p>New York State amended its Human Rights Law to impose liability against employers who fail to prevent harassment against non-employees (contractors, vendors, consultants, etc.) in the workplace.</p> </li> <li> <p>New York State now bars the use of mandatory arbitration clauses to resolve sexual harassment claims. This new law is effective July 11, 2018 although, in light of the U.S. Supreme Court&rsquo;s recent decision affirming the use of employee arbitration agreements, this law may be the subject of litigation in the future.</p> </li> <li> <p>New York State, effective July 11, 2018, will prohibit, with an exception in some cases, the use of confidentiality and non-disclosure agreements relating to sexual harassment claims. This new law is effective July 11, 2018.</p> </li> <li> <p>New York State will require employers to have a written anti-harassment policy as well as annual training. Although these two best practices have historically been recommended to employers, they will now be required by law in New York State, effective October 9, 2018. The New York State Department of Labor will be publishing model policies and training programs and your company should customize those policies to fit the workplace.</p> </li> <li> <p>Similarly, New York City amended the New York City Human Rights Law to require anti-harassment training to most employers, expand the coverage of the law against sexual harassment claims, and lengthen the statute of limitations for those claims. The mandatory training component of the law will take effect April 1, 2019.</p> </li> <li> <p>New York City also amended its own Earned Sick Time Act to provide additional job-protected leave for absences relating to family offenses, sexual abuse, stalking, and human trafficking &ndash; known as &ldquo;safe&rdquo; time. This law contains another amendment, effective July 18, 2018, to require employers to grant schedule changes (temporarily) two times per calendar year for leave reasons covered by the Earned Safe and Sick Time Act.</p> </li> <li> <p>New York City expanded the definition of sexual orientation and gender under the New York City Human Rights Law</p> </li> <li> <p>Finally, effective October 15, 2018, the New York City Human Rights Law will require that employers engage in a cooperative dialogue in response to employee requests for reasonable accommodations relating to religious, disability, pregnancy, childbirth or related conditions, or victims of domestic violence needs. The employer&rsquo;s decision must be put in writing setting forth the accommodations granted or denied.</p> </li> </ul> Murphy Signs Clean Energy Legislation May 2018Blogs<p>On Wednesday, Governor Phil Murphy signed bills related to the environmental and energy pledges he made during his campaign. The Governor signed A-3723, a Renewable Energy Bill, which provides new renewable energy standards, implementation of energy efficiency measures along with reforms related to the State&rsquo;s solar programs and reinvigorating programs related to major offshore wind development. The Governor also signed into law S-2313 establishing a Zero Emissions Certificate program in order to maintain New Jersey&rsquo;s nuclear power supply. In addition, the Governor signed an executive order to update New Jersey&rsquo;s Master Energy Plan to provide for 100% clean energy by 2050. The Master Energy Plan is directed to be completed by June 1, 2019 and will incorporate the provisions of the new legislation.</p> Revises Regulated Medical Waste Storage and Disposal Regulations Apr 2018Blogs<p>The New York Department of Environmental Conservation (&ldquo;DEC&rdquo;) issued an enforcement discretion letter related to storage time limitation requirements for regulated medical waste containers, revising 6 NYCRR 365-1.2(b)(7) and 6 NYCRR 365-1.2(b)(8). Based upon concerns of small generators of regulated medical waste (&ldquo;RMW&rdquo;) such as dental offices, the DEC will revise provisions related to the removal of RMW and sharps from patient care or use areas to a room or area designated for RMW storage. The DEC will now require that RMW and sharps be removed when the container has reached the fill line indicated on the container, is otherwise filled, or the container generates odors or other evidence of putrefaction, whichever comes first. This allows small generators additional time as the regulations now provide specific hour and day requirements for the removal of these items.</p>