Did you know that if your child receives any type of derivative government benefits (like social security) that amount must be included in the child support worksheet; and if the amount exceeds your total obligation, your child support could be set at $0, retroactive to your date of disability.
In the NJ – there is a statute that says child support cannot be terminated retroactive beyond the date of filing of the application or motion for the reduction of child support. Despite this statue the Hunnell Law Group was able to successfully reduce our client’s child support to 2009 and in doing so, we secured a six-figure credit for the overpayment of support. Why/How? Because in addition to emancipation, the receipt of derivative government benefits is an exception to the anti-retroactivity statute and a payor is entitled to relief going back to the date of their first application (or the date of disability, depending on the circumstances).
In our case, the appellate division confirmed our argument that when a parent is receiving child support and social security benefits for their children, they are actually being paid twice, which results in a windfall to the parent of primary residence since there is no entitlement to the second payment. In our case, our client on his own, filed a motion for the reduction back in 2009. Unfortunately, the court found that he did not provide all the appropriate paperwork. He tried again in 2010 and again his papers were denied. He essentially gave up and was subject to having is license suspended, passport revoked, and even bench warrants because he simply wasn’t able to afford support. That’s when he found us and we doggedly worked his file because we knew that the just result was a credit.
If you want to learn more, click here to read the full case.
New COVID-19 Related State Legislation: ANOTHER Eviction Moratorium Update & Utility Assistance for TenantsRead Now
By Ryan Westerman, Esq.
Governor Murphy recently signed Senate Bill No. 3691, appropriating $750 million in federal funds to provide rental and utility assistance for qualifying New Jersey residents: $500 million is allocated for rental assistance, and the remaining $250 million is for utility assistance. The programs are administered by the New Jersey Department of Community Affairs.
The law adds new limits on who is protected by eviction moratorium. New Jerseyeans with household incomes below 120% of the Area Medium Income (a/k/a/ AMI, where “Area” refers to the county the resident lives in) will continue to be protected from eviction through August 2021. New Jerseyeans with incomes below 80% AMI are protected until January 1, 2022. Continuing reading for additional details.
Other highlights of the bill, as summarized by Governor Murphy’s office include:
Do you think you qualify for any of these protections or need assistance in complying with these requirements? Schedule a strategy session with the Hunnell Law Group today!
Recent NJ Appellate Decision Chips Away at Eviction Moratorium Protections: Talmadge Village, LLC. v. Keith WilsonRead Now
By Ryan Westerman
On July 1, 2021, the New Jersey Appellate Decision issued a decision in the case of Talmadge Villages LLC v. Keith Wilson, Docket No. A-0590-20 (App. Div. 2021. The court published the decision thereby making it precedent for similarly situated cases that are currently pending or may arise in New Jersey Superior Court.
The issue before the Court was whether the trial court erred in staying a previous order, preventing the ejectment of the defendant based on Governor Murphy’s Executive Order 106, forbidding evictions in response to the COVID pandemic. Plaintiff argued Executive Order 106 does not apply to the defendant in this case due to the absence of a landlord/tenant relationship. Plaintiff argued the defendant was a “squatter” by legal definition and thereby not entitled to the protected afforded by the moratorium.
The Court agreed: “Because we do not believe the governor’s moratorium on eviction extends to persons having the legal status of squatter, we vacate the stay.”
The facts of the case are relatively simple. The defendant’s girlfriend resided in an apartment owned by plaintiff. She declined to renew her lease and vacated the property. Plaintiff learned defendant took residence of the property during an inspection of the premises, then issued a written demand to vacate. The defendant was never party to the previously existing lease (only his girlfriend was) nor did he ever pay plaintiff rent.
The trial court issued an order for possession in plaintiff’s favor, ordering defendant to vacate. The judge then put a legal stay on the enforcement, citing Executive Order 106 as the legal justification. In effect, the defendant was allowed to stay in the apartment until the eviction moratorium ended. Plaintiff appealed.
The Appellate Court reversed the trial court’s stay:
Since defendant neither rented nor owned the subject premises when the trial court issued its…order, and plaintiff sought defendant’s removal from the residential property by way of ejectment, rather than an eviction or foreclosure proceeding, we are convinced defendant’s removal from the apartment was not barred under Executive Order 106.
From a legal standpoint, the Appellate Court has solid legal justification for its ruling by distinguishing “ejection” from an “eviction”. Executive Order 106 is absent any ejectment language, creating a loophole for plaintiffs to recover occupied property through an ejectment procedure. With the same pen stroke however, the Court also slashed at the public policy behind the Order 106:
…housing security and stability are important to public health, particularly as homelessness can increase vulnerability to COVID-19; and…removals of residents pursuant to evictions or foreclosure proceedings can increase the risk to those residents of contracting COVID-19, which in turn increases the risks to the rest of society and endangers public health.
Read the Appellate Court’s full decision here.
Yet Another N.J. Eviction Moratorium Update: Protections For “Very Low”, “Low” & “Moderate” Income HouseholdsRead Now
By Ryan Westerman
Because the flurry of legislation, executive orders, changes to that information, and the confusion surrounding the eviction moratorium over the last 16 months just hasn’t been enough for renters, the State’s legislatures passed new a bill this week. Curiously, the new bill bifurcates protections from a previous bill signed into law mere weeks ago, which extended the eviction mortarium until January 1, 2022.
Bill s3691 mirrors the eviction protections from the most recent law (which statutorily codifies Governor Murphy’s Executive Orders from 2020) for “very low”, “low”, and “moderate-income” households. The bill defines very low income households as those earning annual income of 30% or less of the county’s median income; low income households earn 50% or less; moderate-income households earn more than 50% but less than 80%. Any household that earns more than 80% of their county’s median income will only be shielded from evictions until August 31st when and if the bill becomes law.
The measure passed both of the State’s legislative bodies without any no votes. Pretty unprecedented given the divisive political climate. The bill now sits on the Governor’s desk. Murphy is vocal about the renters’ need for government support, made clear when he signed legislation extending the moratorium until January 1, 2022. Now, his veto of the bill will be purely ceremonial based on the voting track record of both State Senate and Assembly members. Both chambers’ votes this week are clear indication of what lies ahead.
Bill s3691 makes further distinctions amongst renters. Notably, those renters whose inability to pay rent is COVID related, and those whose are not. In debt renters that fell behind for other reasons will no longer receive pandemic protection and will face eviction.
This appears to strike a reasonable balance between the landlords’ needs to collect rent revenue to sustain their businesses, and the public health concern of making the most financially vulnerable sections of the population homeless, as vaccination rates rise and the pandemic peters out. What it does not do is provide any solution for the tens of thousands of New Jerseyans facing eviction in 6 months of time, but merely kicks the can down the road … all the way into 2022.
Jackson Township police are asking for the public’s assistance in cracking down on an unusual “crime”. It’s a violation that even as I an attorney (and many of the attorneys I discussed this with) didn’t know existed: illegal swimming pool rentals.
Jackson Township ordinances 350-6 and 350-7 prohibit the rental of or advertisement of any pool rental. Authorities learned of the unlawful rentals from neighbors where the violations occurred. Code Enforcement is using social media postings to identify and gather proofs of which properties engaged in the improper conduct and are asking anyone who recognizes the online postings featuring the pools or yards in question to report them.
This took me by complete surprise. Jackson residents who received citations may have been equally surprised. Even though property ownership does come with restrictions on how one can use them, it never occurred to me that a pool could not be rented, especially given the rise of pool sharing apps such as Swimly. I wondered if this same ordinance exists in my own area.
I went to Asbury Park City Code to see if the city has similarly situated ordinances. I found the usual swimming pool regulations, pertaining to issues such as zoning, enclosures, permit costs, and property lot requirements. But what I didn’t find was an ordinance explicitly prohibiting a pool owner from renting their pool to a non-occupant of the property.
Admittedly, I was half-expecting to find a rule on this issue, given Asbury Park’s restrictions on short term rentals like AirBnb. Presumably, the policy behind prohibiting short term rentals and pool rentals overlap: to ensure the use and enjoyment of the neighboring properties is not impacted by the renters who have no attachment or concern for the local population’s quality of life. However, there are none on record that I was able to find.
I did a little more digging. Asbury Park defines a short term rental to be:
…when a property rents out their property, or a permitted part of their property (such as a bedroom), to a guest for a short (30 day or less period…Short terms rentals are usually facilitated through the use of online companies such as AirBnB, HomeAway or VRBO (Vacation Rental by Owner), and other similar websites.
The phrase “permitted part of the property” gives me pause. Could this ordinance be applied to pools? Analyzing the context of the document in its entirety suggests the restriction is only applicable to inhabitants residing in the property, rather than using a property’s features. A court may interpret it differently which potentially would expand the scope of the ordinance to include all segments of a property: a backyard, a basketball court, or a roof top deck, to name a few. Only judicial enforcement of the ordinance will provide an answer to this question.
In sum: be careful what you post online!
- Caitlin Holland, Esq.
July is here – July usually brings us sunshine, summer vacations on the shore, fireworks and barbeques. This July, parents will be receiving advance child tax credit payments as part of the American Rescue Plan. Starting today, July 15, 2021, through December, IRS will pay half of the total credit amount due, with the other half being paid when you file your 2021 income tax return.
Eligible families can qualify for up to $300 per month for each child five (5) and under and up to $250 for children six (6) to seventeen (17). The amounts can be smaller based on income.
There are income limits, and the IRS is considering income from your 2019 or 2020 tax return, whichever is later. Your child must be under the age of eighteen (18) at the end of 2021. You will receive the payments the same way that you received stimulus checks this past year.
Eligibility has been greatly expanded for the 2021 calendar year. To receive the maximum credit, married or widowed parents must have combined income under $150,000. Parents who are not married or widowed can make up to $112,5000 if they are heads of households and $75,000 for all other individual taxpayers including single filers and married persons filing separate returns. If you do not make enough money to pay income taxes you are still eligible to receive the benefit this year, but you must input your information with the IRS. The credit is “fully refundable” this year, so families that meet the above qualifications are eligible to receive the full dollar amount, even if they do not owe income taxes.
Because of the novelty of the changes, the American Rescue Plan includes a safe harbor provision that provides individuals making less than $40,000 (or couples filing jointly making less than $60,000) will not need to repay any overpayment.
However, at this time, many of these changes are only for 2021.
This advanced tax credit is potentially problematic for divorced parents who share custody, however, the IRS has not currently issued any guidance for issues that could arise. Generally, the ability to claim your child as a dependent after divorce rests with the parent who the children reside with for a majority of the year. If parenting time is split evenly, or 50/50, the parent who makes more money granted the right to claim the child by the IRS. This is simply because the more the parent makes, the less money they will receive for the credit, thereby leaving a greater amount for the IRS to keep.
Many parents decide to make a stipulation in their property settlement agreement alternating which parent can claim the child as a dependent in a given year. When parents have multiple children, the credit is often split, with each parent claiming a certain number of the children on a given year (for example: Wife claims two daughters and Husband claims one son in odd years, Wife claims one son and Husband claims two daughters in odd years). Those parents typically fill out IRS Form 8332 in order to direct which parent should receive the amount in a given year.
Because this benefit is, so far, only for the 2021 calendar year, it can cause some problems for divorced parents who share custody. Recently, President Joe Biden introduced the American Families Plan which would potentially keep the expanded child tax credit in place through 2025.
1. Make an agreement regarding payments – Because the expanded eligibility is, so far, for this year alone, the benefits of receiving the advanced tax credit this year is particularly attractive. At this point, it appears that the IRS will provide the advanced payments to the parent who claimed the child as a dependent in 2020 (if you did not file taxes for 2020 yet, the IRS will use 2019 taxes). This could potentially be in conflict with the parent’s agreement as to who should file the child tax credit for 2021.
If you anticipate the advanced credits will cause a rift between you and your child’s other parent, it would be beneficial to make an agreement regarding the tax credit in writing. For example, the parties can agree that the parent making with a lower annual income claim the dependency so that the parties can, perhaps, split a portion of the maximum amount.
Remember that only one parent may claim a single child each year. If both parents attempt to claim the same child/children as dependents, they may be required to repay all or a portion of the monies received. This is a departure from the guidance surrounding stimulus checks which allowed both parents to claim the same child/children to receive the maximum benefit.
2. Opt out of advance payments – If the parties cannot come to an agreement at this time and may benefit from some extra time to come to an agreement or ask for guidance from the Court via motion practice, you may opt out of the option of receiving monthly checks on the IRS website. if parents choose to opt out of prepaid monthly payments, they will receive a full tax credit in 2022 when filing their 2021 tax return. It’s currently too late to opt out of the initial July 15th payment.
Here are the cutoffs for the next payments:
• Aug. 2 for the Aug. 15 payment
• Aug. 30 for the Sept. 15 payment
• Oct. 4 for the Oct,. 15 payment
• Nov. 1 for the Nov. 15 payment
• Nov. 29 for the Dec. 15 payment
At the end of the day, the child tax credit can amount to a large chunk of change, but it is not worth a drawn out fight in court where the parties will deplete the entire amount through counsel fees alone. It’s best to come to some kind of an agreement. If you need help coming up with a creative solution to the issues arising from the American Rescue Plan’s Advanced Child Tax Credits, visit HunnellLaw.com/contact to request an appointment with an attorney.
HOA Pet Restrictions: Limits on Dogs But Not On Children?!
By Ryan Westerman
Homeowners’ Associations (or “HOA’s” as they are commonly referred to) are the governing bodies that make, change, and enforce the rules of the community for which it was incorporated to run. HOA’s govern real property complexes, like a condominium building or a senior citizen development.
Property owners within the complex are members of the HOA and are encouraged to attend and participate in the meetings where communal issues are discussed and often colorfully debated. Members vote in elections for the purpose of elevating other members to the HOA’s board which influences the decisions made on behalf of the community. Some issues are reserved to a board member vote. Some issues are held to a general vote by all members of the community. As with any vote, there are winners and losers. Sometimes the loss can be heartbreaking.
An HOA for a recent buyer represented by the Hunnell Law Group voted to change their pet restrictions with a result that I found to be patently unfair but also having the possibility to tear a family apart.
It’s a safe conclusion that most people with pets view them as members of the family. #Furbaby has over 17,500,000 million posts on Instagram as of this writing. Our pets are our children. We feed them, take them to the doctor when they’re sick, and in return there is a mutual love like no other. You can imagine my shock when I read the following change to the HOA pet rules:
“Any units having more than one (1) pet as of May 2012, will be considered “grandfathered”.
“Grandfathered” unit owners shall not be allowed to add or increase the number of pets above the current number of pets in the unit as of the approval date of this publication.
“Grandfathered” unit owners shall not be allowed to replace pets in the event the current number of pets decrease as a result of death of a pet unless it is the last pet in the unit.
These new rules were enacted in 2021. Thus, any current member that took in a second pet after May 2012 (almost NINE YEARS AGO!) could have to give them up. There is no fairness to this rule any way you cut it. First, the rule should be enforceable as of the day of it’s passing. Members should be on notice of such dramatic life changes so they can decide not to take on a second pet, rather than be forced to give them up. Taking away someone’s pet is inhuman in my humble opinion no matter how long you have them. As with any relationship, the bond only grows stronger with time.
I personally have difficulty finding this rule to be enforceable. However, unless the affected party can negotiate with the HOA or afford a lawsuit, chances are Fluffy will have to go. Or Spike. A true Sofie’s choice.
#realestate #attorney #HOA #woof #meow
5 Reasons You Should Retain an Attorney for Your Divorce
by Caitlin Holland, Esq.
1. You are not familiar with the divorce process/ you do not know where to start.
Divorce can be a complicated and fairly emotional process. That is especially true since processes and procedures have changed so significantly after COVID, including electronic filings and virtually hearings. Retaining an attorney that aligns with you, your finances, and your expectations can be a great asset to you in your divorce process. Family Law Attorneys are familiar with the rules of Court, procedure, proper documentation necessary in the divorce process and technology necessary for virtual appearances. Their expertise will give you peace of mind by helping you avoid the anxiety of having to represent yourself properly. An attorney can also help you manage your expectations in a divorce which can help you settle your divorce more quickly and avoid future conflict. Even if the divorce is not contentious, you can avoid future conflict or work if you hire an attorney to ensure that the proper procedures have been followed.
2. Your relationship with your spouse is becoming contentious.
When a marriage starts to break down, there is often conflict. While some parties can successfully navigate the conflict and proceed with an amicable divorce, it is not always the case. Often when there are hurt feelings, an adversarial spouse will hurl idle threats at the other spouse (“You’ll never see your child again if you divorce me”) that can fuel a contentious divorce. When that happens it becomes hard to maintain perspective and the process can become more about defending yourself than working toward your future after divorce. By retaining a Family Law Attorney, you can avoid some conflict and bullying, and have someone in your corner guiding you through the chaos. When one or both parties retain attorneys, the parties may even be able to avoid contact with the other by only communicating about the divorce through their attorneys.
3. You and your spouse have complicated finances that will require a lot of documentation.
If the parties have particularly complicated finances, it is prudent to retain an attorney. For example, if the parties own their own business(es), there are numerous assets or debts, a party is requesting alimony or a party is requesting child support, there will likely be disclosures and documents that you would like to review before you agree to any terms of divorce. Navigating discovery can be daunting and confusing when a party is left to make those requests on their own. It is best practice to retain an attorney in order to ensure that you receive all necessary financials and are making the best deal possible and/or advocating for an equitable settlement.
4. You have children.
Having children presents a number of complications in the divorce process. Issues arise like child custody, child support, parenting time, school, health expenses, etc. Often, parties have an idea of the custody and parenting time aspects of the divorce based on the status quo of the marriage. However, there are certain statutory requirements to things like child support that an experienced family law attorney can help you navigate, including ensuring proper income and expenses are included in the Child Support Guidelines. This also tends to be a very emotional portion of the divorce process, an attorney will be able to help you manage your expectations and advocate for you and your child(ren)’s best interests.
5. There are one or more prior orders or agreements between the parties.
Whether the parties negotiated a prenuptial or postnuptial agreement, or there is a restraining order with temporary terms, it can be prudent to engage an attorney to help you navigate your divorce under the terms of the prior agreements and/or make petitions to the court to contest or modify terms of those prior agreements, if necessary.
If you are interested in speaking to an attorney about a divorce, go to wwwHunnelLaw.com/contact to schedule an appointment.
By Ryan Westerman
Recently, the Hunnell Law Group has received an influx of cases seeking to sue their home inspector for making one or more major mistakes or omissions during the home inspection phase, costing the property owner several thousands of dollars in necessary repairs post-closing. In a few instances, the mistakes were glaring. I was shocked a licensed inspector could miss items that are so open and obvious.
My first words of advice to these parties are review the Home Inspection Agreement. This is the document that outlines the terms and conditions of the home inspection which both parties sign. More often than not, there is a low ceiling on what can be recovered. It is not uncommon to limit the damages to just the return of the inspection fee, typically between $400.00 - $600.00.
Recently, I saw a liability limit that appeared more reasonable on its face. There was a catch of course. Isn’t there always?
"[LIABILITY] will not be more than the lesser of actual damages or ten times (10x) the inspection fee. Client waives any claim for consequential, exemplary, special, or incidental damages or for the loss of the use of the property."
It doesn’t take much imagination to create the scenario where the actual damages are significantly more than 10x’s the inspection fee. If the inspection overlooked an enormous structural issue that will cost $20,000.00+ to repair, and the inspection cost $500.00, then the aggrieved party is getting $5,000.00, without the ability to sue for other damages.
The Home Inspection Advisory Committee (N.J.A.C. 13:40-15) does hold inspectors to a certain level of professional performance. N.J.A.C. 13:40-15.20 (“SUSPENSION, REVOCATION, OR REFUSAL TO RENEW LICENSE”) outlines instances where the Committee “may deny, refuse to renew, or temporarily suspend or revoke a license, or issue a civil penalty[.]” An inspector that has engaged in “repeated acts of negligence, malpractice or incompetence” qualifies for punishment from the committee up to and including losing their license.
So, while you may not be made whole financially, you can report the inspector to the committee, in the hopes of preventing another individual from a financial windfall or purchasing a house without a sound structural foundation.
It’s officially been over a year since the New Jersey Courts have transitioned to virtual proceedings. After months of growing pains, court calendars were scheduled again and virtual hearings became common practice. Unfortunately, many court calendars are still backlogged and running much slower than they did before. This can be bad news for divorcing couples as some judges’ calendars are so backlogged that they are scheduling divorce trials months and months in the future.
It’s commonly known that most divorces settle. The reason for this is that parties usually want control over the terms of their divorce, especially when there are children involved. There are a few different ways to settle a divorce through Alternative Dispute Resolution before it ever gets to trial.
There are many benefits to settling a divorce through ADR, especially right now. First, as previously mentioned, the parties maintain varying levels of control over the terms of their divorce. Second, use of one of the above methods of ADR can significantly decrease the cost of your divorce. Divorces are notoriously expensive – there are so many costs associated with trial that you can avoid should you choose to settle. Third, Courts are governed by case law, statute, court rules and the rules of evidence. If you decide to settle your case there are, generally, more creative solutions that are not strictly bound by Rules and evidence. Fourth, divorce litigation can take a very long time, especially amidst the pandemic. If a divorce is particularly contentious or complicated, there can be weeks of trial dates, whenever the Court can fit them into the calendar. Finally, ADR will almost certainly avoid the high level of conflict that comes with a trial. Divorces are emotionally taxing, but if you are willing to come to the table and compromise it can be beneficial to the parties’ relationship moving forward.
Obviously, ADR is not the best choice in every case, but it’s surprising how many contentious divorces can settle if the parties have the right attorneys and are willing to make some compromises. If the parties do not choose to move forward through one of the above-mentioned processes, the court would then schedule trial dates and the parties would move forward with traditional litigation. If the parties are successful in their attempts to settle the case through ADR, they then submit their agreement or the arbitrator’s decision to the Court and appear at an Uncontested Divorce Hearing where the judge signs the Judgment of Divorce.
If you are contemplating divorce and would like to speak to an attorney, visit HunnellLaw.com/contact to determine whether ADR may be applicable to your circumstances.
Author: Caitlin Holland, Esquire
Stephanie Hunnell, Esq. , Ryan Westerman, Esq. and Caitlin Holland, Esq.