Articles & Resources

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Two questions often asked by clients at their initial interview are “Do I need to be separated from my spouse for any length of time before I can file for divorce? and Can I obtain a legal separation from my spouse?” The short answer to both questions is no.

In New Jersey, there is no required term of separation necessary to file for divorce. In fact, spouses are often still residing together at the time one of them chooses to file for divorce, or retain an attorney, and they remain so throughout the process. While a physical separation remains a valid cause of action (reason) to file for divorce, it is not required. The majority of individuals who file for divorce do so with their reason being irreconcilable differences.

In New Jersey, there are nine causes of action or reasons which would entitle an individual to obtain a judgment of divorce from their spouse. Seven of these are fault-based and two are not. They are:

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As yet another consequence of the #metoo movement, the New Jersey Legislature has passed legislation aimed at prohibiting employers from including certain waiver provisions and non-disclosure clauses routinely found in employment agreements. Senate Bill No. 121 (“the Bill”) , which is expected to be signed by signed by the Governor, will bring about a sea change for employers on several fronts.

The Ban on Waiver of Rights Under the LAD: Until now, employers were free to enter into agreements with employees to waive rights to jury trial and arbitrate all employment-related claims, including claims under the New Jersey Law Against Discrimination (“LAD”). In recent years New Jersey courts have declined to enforce individual arbitration agreements unless the employer agrees to preserve certain procedural and substantive rights, such as statutory rights to punitive damages and attorney fees, the full benefit of the statute of limitations period, and the absorption of the costs of arbitration by the employer. Nevertheless, properly crafted waivers and arbitration agreements were enforced by the courts despite the employee’s surrender the right to a jury trial in a judicial or arbitral forum.

Under the Bill, a provision “in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation or harassment shall be deemed against public policy and unenforceable.” Moreover, the Bill bars any prospective waiver of any right or remedy under the LAD or any other state statute. Whereas the rights conferred by the LAD include a jury trial, the Bill effectively prohibits an employer from entering into any agreement i) to waive a trial by jury of LAD claims in a judicial forum, or ii) to arbitrate LAD claims which necessarily dispenses with a jury. At the very least, employers may be required to exclude claims for discrimination, retaliation and harassment from arbitration agreements. No surprisingly, these mandates do not apply to collective bargaining agreements.

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Marijuana comes from plants that have hundreds of chemicals known as cannabinoids. The two most notable cannabinoids are the psychoactive Tetrahydrocannabinol (“THC”) and the non-psychoactive Cannabidiol (“CBD”). Hemp, while also derived from the cannabis family, has virtually no THC present thereby causing no psychoactive effect.

The Controlled Substances Act (“CSA”) is the statute under federal law regulating drug policies in the United States. It regulates everything from the manufacturing, possession, use and distribution of certain substances. Under the CSA, Marijuana is considered a Schedule I controlled substance while CBD is considered a Schedule V controlled substance, the least restrictive under the Act. Hemp is no longer treated as a controlled substance pursuant to the Agricultural Improvement Act of 2018 (“Farm Bill”).

Given the extremely small level of THC present in CBD, many people have been asking: is CBD legal in New Jersey? While this is arguably unchartered territory for New Jersey, both the New Jersey State Assembly Bill 1330 and Farm Bill offer some guidance.

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Increased exemptions for 2019. The IRS has announced that the gift and estate exemption has increased to $11.4 million per person in 2019. The exemption amount in 2018 was $11.18 million. This means that in 2019, an individual can make gifts during life or at death totaling $11.4 million without incurring gift or estate tax. In addition, a married couple can now transfer $22.8 million worth of assets during life or at death tax-free. The annual gift tax exclusion amount remains at $15,000 per recipient ($30,000 if spouses elect gift-splitting).

IRS addresses estate and gift tax exemption “clawback.” The Tax Cuts and Jobs Act (“TCJA”), which was signed into law in December 2017, increased the gift and estate tax exemption from $5 million to $10 million, indexed for inflation (see current rates above). The TCJA also provides that the exemption amount will revert to $5 million in 2026. This led many practitioners to wonder: what happens if an individual makes a gift in excess of $5 million now, and dies in or after 2026 when the exemption amount is only $5 million? Because the gift and estate tax exemption is unified, this could mean that estate tax would be due since the individual’s gross estate, which includes the prior gift made, would exceed the applicable exemption at the time of death.

However, in November 2018, the Treasury issued proposed Regulations addressing this “clawback” of the exemption amount (Prop. Reg. Sec. 20.2010-1(c)). The Regulations provide that in the situation described above, the applicable estate tax credit will be based on the greater of the two amounts. For example, if an individual makes a gift of $9 million in 2019 when the exemption amount is $11.4 million and then dies in 2026 when the exemption is $5 million, the individual’s estate may use the higher exemption of $11.4 million to ensure that tax will not be due on the amount in excess of $5 million. Thus, if you are considering make a large gift (or a series of gifts), now is the time to do it, when the exemption amount is the greatest it has ever been.

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The New Jersey estate tax was repealed effective January 1, 2018. Coupled with the significant increase in the federal estate and gift tax exemption ($11.4 million in 2019), the repeal has reduced the need for transfer tax planning by many New Jersey residents. However, because the New Jersey inheritance tax remains in place, clients must still consider the effect of the inheritance tax upon their estate plans.

New Jersey is one of six states that have an inheritance tax, the others being Iowa, Kentucky, Maryland, Nebraska and Pennsylvania. New Jersey’s rates begin at 11% and rise to 16%. N.J.S.A. 54:34-2. The inheritance tax applies to gifts at death, or within 3 years of death, to beneficiaries who are separated into different classes based upon the relationship of the decedent to the beneficiary. N.J.S.A. 54:34-1 and 54:34-2. Class A beneficiaries (spouses, civil union partners, direct descendants, direct ancestors, and stepchildren) are exempt from the tax. Class B was eliminated as a category in 1963. Class C beneficiaries (siblings, sons- and daughters-in-law, and civil union partners of children) receive a $25,000 exemption and are taxed at rates ranging from 11% to 16%. Class D beneficiaries (everyone else) are taxed at 15% on bequests up to $700,000, with a rate of 16% for amounts above $700,000. Qualified charities are Class E beneficiaries and gifts to them are exempt from application of the tax.

There is no exemption from the New Jersey inheritance tax based upon the size of one’s estate. Even transfers from a very modest estate will incur the tax if the recipients are in a taxable category. The inheritance tax is assessed against the recipients unless the will directs otherwise. Executors are charged with deducting the tax from the bequests before distributing to the beneficiaries. N.J.S.A. 54:35-6.

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As our clients age they often tell us they do not feel comfortable with their ability to continue to manage their financial affairs. They also express the unfounded fear that upon their death all their bank accounts will be frozen for months on end with no ability for anyone to access their funds to satisfy their obligations after death for the care of their home or loved ones. The common step taken by many is to put a family member or trusted friend on their accounts as joint owner so that in the case of a disability or death, funds will be readily accessible to satisfy the client’s obligations without interference.

Unfortunately, this step, although well-intentioned, has sometimes resulted in significant confusion, litigation and costs to the client’s estate because the creation of the joint account and the transfer of those assets to the surviving joint owner at death were not clearly understood by the elderly client or were not properly explained to her by the custodian of the account.

This miscalculation was recently demonstrated in an Appellate Division case, In the Matter of the Estate of Jones, No. A-2557-16T2, 2018 WL 4471686 (N.J. Super. Ct. App. Div. Sept. 19, 2018). Subsequent to the death of her husband, Erna M. Jones visited her investment broker with her middle daughter, Barbara, to open a new account distinct from the one she held jointly with her husband. Mrs. Jones executed a new account application that identified her daughter Barbara as a second party, and the box was checked that the account was “Joint Tenants with Right of Survivorship.” Subsequent to this account opening, Mrs. Jones managed the account, paid her bills and handled her investments with the representative of the brokerage company. At her death in 2015, her daughter Barbara claimed the account as hers as the surviving joint tenant. Barbara’s older brother, David, objected and filed a Complaint under New Jersey’s Multi-Party Deposit Account Act (“MPDAA”) alleging that the account was not held with right of survivorship but was merely a “convenience account,” and that all money in the account was to be distributed equally amongst Mrs. Jones’ surviving three children. Mrs. Jones’ Last Will and Testament provided that her estate was to be divided equally amongst her children and throughout her life, David stated, she had always treated her three children equally. David further alleged that Barbara had utilized undue influence in getting her mother to name her as a joint owner on the account.

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Lindabury’s Wills, Trusts & Estates practice group has just published its latest edition of the Planning Matters newsletter. This publication is a complementary resource shared with clients and professional service providers working in the areas of estate planning and tax. Planning Matters is produced and distributed seasonally and provides updates and analysis of recent developments in estate planning, administration and tax law.

Topics covered in the Planning Matters Winter 2019 edition include:

  • The Potential Confusion Over Joint Accounts
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In all divorce matters where alimony or child support is an issue, the income or earning capacity of the parties needs to be determined. If you and your spouse are employed on a full-time basis your annual income can be easily determined. However, if you or your spouse are unemployed (either recent or long-term), under-employed or at some point during the marriage one of you took a leave of absence from your prior full-time position, the issue of imputation of income to one or both of you would need to be addressed.

New Jersey Courts have the authority to, under appropriate circumstances, impute income or determine the earning capacity of an individual whether or not they are actually earning at that level. When the true earning potential of a spouse is at issue in a divorce setting, the parties can either stipulate to an income for the under-employed or unemployed spouse, or they can reference the “Occupational Employment and Wage Estimates for New Jersey.” This information is calculated with data collected from employers in all industry sectors in New Jersey.

As the employment history or qualifications of a spouse may not fit within the table or if they are specifically unique, the table itself may be of nominal value. When there is continued disagreement as to a spouse’s income potential one or both of the parties may retain an employability/vocational expert to evaluate the earning capacity of the unemployed or underemployed spouse. At the outset of the case, the parties can jointly retain one such expert or each can retain their own. There are dozens of such experts statewide who regularly perform these evaluations, issue reports, and subsequently testify at any hearing or trial.

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In a recently published article by Relias Media, Andrew Gibbs says “It is useful to think of cyberinsurance as filling in gaps in existing insurance coverage.  Cyberinsurance can fill in gaps, and in some cases give you interlocking or overlapping coverage.  A large organization might have a crime policy with a social engineering endorsement, and then if you get a standalone cyberpolicy that also has social engineering coverage, you’ll have an overlap. That overlap helps protect you because those policies are going to limits and exclusions that might be overcome by the other policy.”

“There may be higher deductibles for certain kinds of cyberlosses, so healthcare organizations should get with their brokers or lawyers and try to maximize the coverage they can get within their financial restraints,” Gibbs says. “They also should watch carefully for exclusions and language that lessens the coverage.”

You may download the full article here.

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On November 26, 2018 a Joint Committee of New Jersey lawmakers advanced a bill that would legalize recreational marijuana use in the state. Although the bill had widespread support, including from Gov. Murphy, disagreements among Senate Democrats over the percentage of state taxes on marijuana stymied the vote on the bill that was expected in mid-December. Predictions that the bill will be re-introduced and voted upon early this year may be overly optimistic given other pressing issues pending in Trenton. If the bill is ultimately passed, New Jersey will join 10 other states that have legalized recreational marijuana.

When reintroduced, it is not expected that there will be any changes to the bill’s provisions addressing marijuana in the workplace. A single paragraph of the prior version of the sweeping legislation specifically addresses recreational use and the workplace, and simply provides that nothing in the bill requires an employer

to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana items in the workplace or to affect the ability of employers to have policies prohibiting marijuana use or intoxication by employees during work hours. No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke or use marijuana items, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.

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