Articles Posted by Insights

No one goes into a marriage expecting to be divorced, but when a family makes that tough decision, the last thing you want is for your children to be caught in the crossfire.

Nicole A. Kobis, Esq., partner in Lindabury’s Divorce and Family Law Practice Group, discusses the challenges of Divorce & Your Children as a featured guest on RVN Television’s Legal Breakdown, with host Erin Brueche.

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers of 100 or more to adopt COVID-19 policies, maintain rosters of vaccinated employees, and provide paid time off to employees to vaccinate or recover from its effect. These mandates were to go into effect on January 10, 2022. By February 9, 2022, employers were to require employees to show proof of COVID-19 vaccination or undergo weekly testing.

On that same date the Centers for Medicare & Medicaid Services (CMS) issued an interim rule mandating COVID-19 vaccination and other requirements for workers in most healthcare settings participating in Medicare and Medicaid programs by January 22, 2022.

Legal challenges quickly wound their way through the federal courts, leaving businesses in limbo about their obligations to implement these vaccination and testing mandates. On January 13, 2022 the Supreme Court of the United States (SCOTUS) issued decisions on both mandates, imposing a stay on the OSHA ETS vaccination and testing mandates, but upholding the vaccination mandate and other aspects of the CMS for healthcare facilities.

As COVID-19 infection numbers continue to surge, the CDC released updated guidelines addressing the changing understanding of the Omicron variant. In a media statement issued on December 27, 2021, the CDC noted that the majority of COVID-19 transmissions happen earlier in the illness, typically prior to symptoms and two to three days after. The CDC addressed changes for both individuals exposed to COVID-19 (quarantine guidelines) and for individuals who contracted COVID-19 (isolation guidelines.) Vaccination is relevant only for quarantine requirements.

Quarantine guidelines: These guidelines differ by vaccination status. Those vaccinated with Pfizer or Moderna within the last six months, or with Johnson & Johnson in the last two months, or those “boosted” no longer have any seclusion requirement. Instead, if no symptoms emerge, individuals should wear a mask for ten days around others and test on day five.

For those not vaccinated, or not meeting the requirements of the above paragraph, the CDC recommends quarantine for five days. After five days of seclusion, individuals should continue to wear a mask around others for ten days and obtain a test on day five. Once again, if any symptoms develop, the CDC recommends seclusion and testing.

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Births, deaths, marriages and divorces reshape the definition of “family” for individuals on a constant basis. It’s no wonder, then, that family law and estate planning often go hand in hand. Estate planners and divorce attorneys alike are often presented with “what if” questions that span both areas of law. Here, we explore a few common questions clients may have when faced with these life transitions. The goal of this article, is to help clients make decisions that protect their loved ones and their assets.

Changing a Will

Can I change my will while getting divorced and should I? Although the last thing that many clients want to do once the divorce action has begun is to engage another attorney, it’s actually a good idea for them to review their estate plan this time.

Shortly after OSHA issued its Emergency Temporary Standard (ETS) mandating vaccination or weekly testing for employers of 100 or more, legal challenges in the federal district courts stalled the implementation of the deadlines for compliance. On December 17, 2021, the Sixth Circuit Court of Appeals – the court designated to hear the consolidated challenges filed in multiple districts – lifted the stay, clearing the way for the implementation of the ETS mandates.

The New ETS Deadlines: Initially, employers were expected to comply with the ETS’s vaccination verification and masking requirements by December 6, 2021, and implement periodic testing for unvaccinated workers by January 4, 2022. In response to the Sixth Circuit ruling lifting the stay, OSHA has announced that it will not enforce any of the ETS standards until January 10, 2022, and will not issue citations for non-compliance with the ETS testing requirements until February 9, 2022, so long as employers are exercising “reasonable, good faith efforts to come into compliance with the standard.”

What Now? An emergency appeal of the Sixth Circuit ruling has already been filed with the United States Supreme Court, which will ultimately decide if the ETS will stand. Nevertheless, employers must prepare now for compliance with the ETS mandate because if sanctioned by the Supreme Court, employers will face a very narrow timeframe to come into compliance with the ETS requirements. Many employers have opted to adopt the ETS mandates despite the ongoing legal challenges because OSHA standards only establish minimum workplace standards and employers are free to implement more stringent requirements.

To those who have loved and lost a pet, the experience of grief is profound. Research shows, in fact, that losing a pet can be just as difficult as losing a loved one. After losing a pet, the owner may take comfort in bringing home their pet’s remains for burial or within an urn. With these remains, the owner may then continue to honor their pet and find peace. When these remains are mishandled, the courts have suggested and held that there is recourse for the owner. As with many areas of animal law litigation, this is still a developing area- but there are some hints as to viable claims in existing caselaw.

New Jersey: The most noteworthy case in New Jersey, Quesada v. Compassion First Pet Hospitals, involved the death of a cat, Amor, who was euthanized at an animal hospital in Red Bank. 2021 WL 1235136 (App. Div. 2021). Following the euthanasia, the veterinarian told the owner to pick up Amor’s remains the next day. Unbeknownst to the owner, the veterinarian decapitated the animal to conduct a rabies test and turned the cat back over to the owner in this state. The owner filed suit against the veterinarian including counts of emotional distress, negligence, and bailment. The trial court dismissed all of these counts for failing to state a claim, but the Appellate Division disagreed, holding that the claims should not have been dismissed as the owner did adequately plead these claims. While the case is still ongoing, this indicates these types of counts may be viable against someone entrusted with an animal’s remains.

Nationally: Nationwide, one case coming from California addresses a pet crematorium claim directly. In Levy v. Only Cremations for Pets, Inc., pet owners sued a pet crematorium alleging they sent two of their dogs for cremation but were instead sent random ashes. 57 Cal. App.5th 203 (Cal. 2020). The Appellate Division agreed with the lower court that there were not sufficient claims under contract theory but disagreed with their dismissal on the trespass to chattel and negligence claims. Importantly, the Court noted that the “sole purpose of a private cremation of a pet is the emotional tranquility of the owner.” Therefore, even though there were only small economic damages from the cost of the cremation, the Court asserted emotional distress damages would be available to these owners, meeting the requirement of showing recoverable damages. This is important, as damages are often a challenge in veterinary malpractice claims.

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Every pet owner’s worst nightmare is for something to go wrong to their companion animal while in the care of a veterinarian. Or alternatively, witnessing their pet be harmed or even killed by another animal. Unfortunately, the legal system offers little protection to people who experience the loss of a pet in this way, leading to the need of creative legal advocacy or those looking for a solution to this issue. What options are available – and unavailable – to pet owners in New Jersey?

Veterinary Malpractice: There is currently no cause of action for “veterinary malpractice” in New Jersey. While a bill was proposed in 2016, and again in 2017, creating rights of action for damages in veterinary malpractice situations, the bill never made it to committee and has not been reintroduced. The bill proposed pecuniary damages for claims of veterinary malpractice but did not establish any right to emotional distress damages. The future of a legislative solution to the lack of veterinarian malpractice claims remains unclear.

Loss of Property: Under current New Jersey law, animals are classified as property. However, existing caselaw does recognize that pets have a “special subjective value” beyond that of typical property. Houseman v. Dare., 405 N.J. Super. 538 (App. Div. 2009). Despite this, the Court has clearly denied the right of pet owners to recoup emotional distress damages arising from the loss of their pets. McDougall v. Lamm, 211 N.J. 203 (2012). What does this mean?

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While divorce looks different for every client – some saddened, some shocked, some happy to move on – a common emotion surrounding divorce is nervousness. For many, divorce may be the first time a person has prolonged involvement with the Court system. Understanding the Court System’s divorce process can help lessen anxiety and fear surrounding the divorce process.

Initiation. The first step in any divorce proceeding is the Complaint for Divorce. The Complaint essentially informs the Court of the general facts of your case and is the formal notice to the Court and your spouse that you are seeking a divorce. Your spouse will then have the chance to file an “Answer” to your Complaint.

Financial Paperwork. Generally, both parties to the case will individually file a “Case Information Statement”, which summarizes income and spending of the parties. It will also list any assets or debts that you have. This gives the Court an overview of your financial situation.

Divorce inevitably results in a major life transition for all parties involved. Whether or not both spouses wish to end their marriage, divorce presents changes in family structure, time spent with children and financial resources. During a divorce, decisions need to be made about the most precious and important aspects of an individual’s life while they navigate the intense emotional effects of materially altering the way they may have envisioned their future. In order to protect yourself during a divorce, I advise my clients that the best way to make those decisions is to arm themselves with information so that they become informed consumers. I ask them to gather their financial information, including account statements and tax returns, think about what they want as they transition to life after divorce and what matters most to them as we begin to discuss the issues associated with dissolving their marriage. There are terms that are foreign, processes that are new and decisions that once made can change their lives forever.

The divorce process in New Jersey is focused on settlement- keeping as much control as possible with the spouses themselves who arguably know what is best for themselves, their children and their families. Many litigants turn to alternate dispute resolution means, such as mediation or collaborative divorce, to resolve the issues associated with dissolving their marriage. These processes allow for more creativity in settlement and more communication about the specifics of each issue. In cases that involve more complexity or discord, parent coordinators who help facilitate decisions regarding the children are brought in to manage parents even after the divorce has ended.

While divorce does create change, that change does not have to be for the worse. Surrounding yourself with trained professionals who can help navigate the process, the court system and help educate you while you move through the divorce will help ensure a smoother transition into the next chapter.

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While the pandemic continues to impact individuals and businesses, efforts to bring a sense normalcy back to daily life are apparent across the state.  One such effort is the reopening of New Jersey Courts.  While this is happening, the reopening is occurring  slowly.

Back in June, 2020 a three phase plan was instituted by the Administrative Office of the courts. Phase One was to have fully remote operations. While Phases Two and Three had gradual increase in the number of judges and staff who would be permitted on site. Phase Two was capped at 10 – 15% while Phase Three permitted 50-75 % of judges and staff to return. However, the judiciary found it necessary to amend their original plan and institute Phase 2.5 which permitted a maximum of 25% of judges and staff to return.  We currently remain in Phase 2.5 and there is no set date for Phase Three to take effect.

Phases 1 through 2.5 have seen matters such as simple matrimonial trials, chancery and probate matters be conducted by zoom or similar virtual platforms. A handful of civil jury trials have also been able to have been conducted statewide.  A new directive allows for criminal and civil jury selection and trials on site while allowing judges to use their discretion to bring in matters into their courtrooms.

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