Monday, September 01, 2014

What is my child support supposed to cover?

As all parents know, raising a child is expensive.  From diapers and wipes in infancy to school supplies and soccer cleats during school years, raising a child has daily costs.  For parents who pay or receive child support, there is often disagreement and frustration regarding what a parent should have to purchase without help from the other parent.

In Pennsylvania, child support is designed to cover a child’s basic living expenses.  In other words, it goes toward their “share” of the rent and utilities each month, but it also goes to routine and expected expenses, like clothing, food and toothbrushes, that are incurred when the child is with the parent.  Even things like school supplies, presents to take to a friend’s birthday party, and the child’s own Christmas presents, which do not arise daily, are typically considered ordinary expenses for which a parent would be expected to pay.  In contrast, if a child is required to purchase a specific computer for school, a new, expensive cheerleading uniform or prescription medications, it is likely that a court would expect both parents to pay for these expenses, depending on the parties’ specific child support order.

Parents should expect that most purchases made when the child is in their custody will come out of their pocket.  For the parent receiving child support, this means that the child support is supposed to help cover these expenses.  For the parent paying child support, you should be reassured that when your child support was calculated, it was taken into account that you would have to pay some expenses for your child when your child was in your custody.  In other words, you pay less child support than you possibly could have, in recognition that you will pay additional expenses when your child is with you.

As your children heads back to school this fall, remember that it is likely to do you no good to keep all of your receipts hoping that the other parent will split the costs.  Unless your child support order specifically says otherwise, these “normal” expenses are likely not going to be viewed as extraordinary expenses that the other parent should reimburse.  It is better to simply be wise and budget appropriately for these expenses.  That said, you can and should discuss these issues with your attorney, especially if you believe that your child support order specifically states otherwise.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, August 28, 2014

Does a seller have to disclose a murder/suicide that occurred in the home?

Recently, in Milliken v Jacono, et al the Pennsylvania Supreme Court was asked to determine whether a murder/suicide that occurs in a home is a material defect to the home and therefore gives rise to the duty to disclose the defect when selling the home.  

The Court acknowledged that a murder/suicide in a home might create a psychological stigma for the home that would mean that some individuals would not want to live in the home; however, the Court refused to find that psychological stigmas, in general, were material defects that had to be disclosed on a sellers disclosure.  In providing its reasoning, the Court noted that there are too many varying situations that could give rise to a psychological stigma, and that the possible variations in the impact of those situations on a home were too broad to create one rule requiring disclosure.  The Court left open the possibility that the legislature could re-visit this topic, if desired, but that the varying implications were too numerous for the Court to create a general rule.

That said, people who are selling a home that has a controversial history should discuss the issue with their realtor and even an attorney to make sure that the facts of their particular situation do not require that they disclose the event.  If, on the other hand, you are purchasing a home, you should search the address on the internet.  You may discover news reports about the house or the neighborhood that could help you in the decision-making process.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, August 25, 2014

How do I make our divorce easier on the kids

Going through a divorce is hard on all members of a family, and no parent is expected to know the best way to navigate the process.  This article from the National Association of School Psychologists has some great information and practical advice about different ways that divorce may impact your children and how to support your children during the divorce.  Co-parenting counselors and therapists also can provide great resources.  If you cannot afford formal therapy, you can also look to see whether your church or other community organization offers support groups for divorced parents.

When you consider your options, think about how your decisions will affect your children.  For example, you may want to see your children every day or every other day, but think about how a constantly fluctuating schedule with lots of back and forth between parents’ homes could be unsettling for your child.  Even if the other parent refuses to put your child first, you should be the bigger person.  Your child will notice and benefit.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, August 21, 2014

Who can participate in a New Jersey divorce?

In a recent New Jersey case, Marsico v. Marsico, the Superior Court had to decide whether a defendant could use a Power of Attorney to allow his adult daughter to act on his behalf in his divorce, even though he was not incapacitated.  A Power of Attorney generally gives an individual, called the agent, power to perform certain legal tasks on behalf of the grantor.  For example, a parent could sign a Power of Attorney so that his child could use his bank account to pay bills and other expenses for him, if he were to become incapacitated or simply because he needed the help.  It allows the agent to act as the grantor in the defined circumstances.

In Marsico, the Husband and Wife were both in their eighties.  Husband had an adult daughter from a prior relationship, and had executed a Power of Attorney, which gave daughter the ability to act on his behalf in legal causes of action.  Shortly after Husband had executed the Power of Attorney, Wife filed for divorce.  Rather than signing the divorce pleadings himself, Husband had daughter sign the pleadings using her Power of Attorney.  Husband did this even though there was absolutely no proof that he was legally incompetent and no party claimed that he was incompetent.  It appeared that he did it simply because it may have been easier.  Wife protested that Husband could not use a Power of Attorney to allow his daughter to act on his behalf in a divorce action.

The court thoroughly examined and reviewed the issues that arise if daughter were allowed to proceed as Husband in the divorce action, and, ultimately, they determined that because Husband was legally competent, he must proceed on his own behalf.  The court was clear that if there had already been a hearing declaring Husband legally incompetent or if someone was alleging that he was incompetent, then the result likely would have been different and daughter could have proceeded on his behalf using the Power of Attorney.  A party’s legal incapacity will not prohibit them from utilizing a Power of Attorney to move forward with litigation.

However, where the party is fully competent, there are too many issues that arise in family law cases that demand that the actual party participate.  Because of the close, intimate relationship that is the basis of a marriage, and therefore the subject of the divorce, there are many times that only a party could accurately testify regarding details important to the case.  For example, a party’s testimony may be extremely important if the parties are disputing the date of separation or whether a particular asset or debt was marital or non-marital.  Additionally, it is important for the court to be able to assess the character and persuasiveness of the party’s testimony.  Moreover, the court was concerned that a party may try to use a Power of Attorney to conceal information or to avoid giving certain information to the court.  Therefore, simply allowing a third party to testify on behalf of the party would not produce the same depth of information, and much of the required testimony may not be heard by the court due to the rules of evidence, such as hearsay.  Although these concerns would be present in all types of litigation, they are heightened in family law cases due to the intensely personal subject-matter.

The Marsico court acknowledged that elderly parties may have more difficulties in coming to court and participating in litigation, but the court insists that there are ways to deal with these difficulties.  For example, the court suggests that a party, for whom attending a court hearing would be extremely difficult, could schedule a deposition for use at trial, which is different than a discovery deposition.  Despite the difficulties that some parties may experience when participating in litigation, the court ultimately found that the individual’s participation in their own family law litigation was vital to maintaining the integrity of the proceedings.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, August 18, 2014

Watch what you say, especially in front of your children.

When you are involved in family law litigation, whether it be a divorce or custody litigation, it is more likely than not that heightened emotions will arise.  Feelings of betrayal, hurt, anger and frustration toward the other party are strong and common.  It is important to discuss these feelings, but it is more important to share these feelings in an appropriate way.  Discussing them with your therapist, counselor or pastor would be the ideal place to sort through your feelings.  Ranting on Facebook, to your friends in the neighborhood, to the parents of your children’s friends or to other mutual acquaintances is not appropriate and can be harmful to your children.

Despite whatever wrongs may exist in your broken relationship with your ex-spouse or the parent of your children, loudly, frequently and unabashedly discussing these issues in public will only harm you and your family.  Although you may want to hurt the other party in the same way that they hurt you, it almost always will hurt you and your children in some way.  It is even more harmful to make negative and angry comments about the other party directly to or in front of your children.

You need to try to remember that children are sponges and absorb everything that they hear, even if they seem not to be listening.  You may think that they are in their rooms, fast asleep, but in reality they could be wide awake, full of anxiety and overhearing adult conversation.  It can be incredibly hurtful and confusing for children to hear their parents discuss each other in such a negative way.  It is difficult for them to process their equal and shared love of each parent in the context of the harsh opinions of the other parent, and it can make them feel as if they must pick a side.  Additionally, children identify themselves as being half mom and half dad.  If you speak negatively or disapprovingly about the other parent, a child can interpret that as negative feelings about half of their own being.

Take the high road, and discuss your feelings and concerns with the right people in the right places.  You should not keep your feelings bottled inside, but you should be mindful about how you express them.  Remember, when little ears (even the ones belonging to your teenagers or adult children) are listening, it is best to keep this mantra from your childhood in mind:  If you have nothing nice to stay, it is better to say nothing at all.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, August 14, 2014

I don’t know where the defendant lives, can I still get divorced?

Very often we hear from clients that they do not know where their estranged spouse lives.  This also applies to the other parent in custody and support cases.  They are not sure where the person is living, perhaps because the person is taking to turns living with family and friends or perhaps because the parties have not had contact in a long time.

The problem is that you cannot move forward with any legal complaint, including a divorce, custody or support action, without properly serving the complaint on the defendant.  There are various ways that you can “serve” a defendant, including have a sheriff or process server personally hand the papers to the defendant or using certified mail to send the papers to the defendant.  This is tricky however when you are not sure where the person is living or if the “green card” for the certified mail is not returned.  Sometimes you can serve the person at work or other known place where the person will be.  There are also other various ways of trying to make service.  Notably, you may have to pay a process server or the sheriff.

That said, you cannot, as the plaintiff in the recent Pennsylvania case Mack v Vega and KLMD Trucking, send the documents to the defendant and try to proceed, even though you know that they did not receive the papers.  This case provides a nice explanation of how our appellate process works in Pennsylvania, because it examines various procedural mechanisms, including preliminary objections.  Ultimately though, the court had to decided whether a party could try to proceed with a lawsuit even though he knew that the other party did not originally receive the complaint.  In short, the plaintiff was barred from moving forward because he knew that the other party did not originally receive the complaint, and unfortunately for him, he had let the statute of limitations expire.

If you believe that it may be difficult to locate or serve the other party in your family law matter, you should discuss the issue with an attorney.  Your ability to properly move forward will be hindered if you do not serve the other person.  There is no way to simply obtain a divorce, custody or support order without serving the other party or without demonstrating to the court that you have done everything that you can to try to serve the other person.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, August 11, 2014

Is alcohol a problem for you?

When we bring potential clients into our office for an initial consultation for a divorce, custody or support matter, one of the questions that we always ask the person is whether either party consumes alcohol, including how much and how frequently.  Another question we ask is: what is the worst thing that you have to say about the other party and what is the worst thing that he will say about you.  Allegations about overuse of alcohol often arise as an answer to this question.

We have spoken with many individuals who consume a higher than average amount of alcohol on a regular basis and acknowledge that the other party will allege overuse of alcohol.  These same individuals often will not acknowledge that they may have a problem with alcohol, and they are not willing to change their drinking patterns.  Many of these individuals simply do not acknowledge that they may be an alcoholic or misuse alcohol.

This article discusses a short list of indicators that you may have a problem with alcohol.  If you are involved in litigation and the other party has alleged that you have a drinking problem, check out the article.  If you think you might need and want help addressing your concerns, talk to your attorney, your doctor, your therapist or your pastor.  They will be able to help you find a great professional to help you address your concerns and take positive steps to improve your life and health.

During a custody battle, you should work on your own weaknesses so that the other party cannot use them as a distraction.  If alcohol will be one of the subjects of your custody litigation, resolve now to stop drinking at all so that you can focus the court on your child, not the distraction of allegations of alcohol abuse.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLc.

Thursday, August 07, 2014

Who wins in high-conflict custody cases

The Pennsylvania Superior Court recently decided a non-precedential high-conflict custody case in J.W.I. v. H.A.I..  The fact that a case is non-precedential means that the appellate court’s reasoning is not binding on Pennsylvania courts in the future.  Even though this particular case will not influence outcomes in the Commonwealth, it is enlightening to see how courts in Pennsylvania review and assess high-conflict custody cases.  These non-precedential cases give guidance, but cannot be quoted as binding law.

You might be thinking - what custody case is not high-conflict?  Despite the fact that we all hear about high-conflict custody cases, there are plenty of situations where divorcing or non-married parents can work together in the best interests of their children to resolve any concerns that they have regarding their children and regarding their physical custody schedule.  In contrast, there are many cases where the parents cannot agree what would be in the best interests of their children.  Even in these cases, the parents at times can work together to reach a resolution.  There may be conflict, but it is resolved relatively easily and perhaps with very little litigation.  Then there are cases where the parents do not agree on what is in the child’s best interests and they cannot in any way, shape or form cooperate and even speak with each other.  This last type of case is the case that often becomes a high-conflict case.

High-conflict custody cases are extremely difficult because there are typically many complicating factors.  For example, in J.W.I., the child has special needs, and the parents disagree regarding her medical care.  Also in J.W.I., the paternal grandparents are heavily involved in child’s care, which also was a complicating factor.  Because custody cases, whether high-conflict or not, can be extremely complicated, Pennsylvania has listed sixteen factors that must be considered by the courts in all custody cases.  The court in J.W.I. lists each of these statutory factors.  Some of the factors include the availability of extended family, which parent is the primary caregiver, whether the child has special needs, sibling relationships, and so forth.  By enumerating very specific factors, Pennsylvania courts are required to consider and give equal weight to each facet of a family’s situation.  The only factors that may be weighed more heavily are “safety” factors, such as a history of abuse.

It is each parties’ responsibility to present evidence on each of the sixteen factors to the court, which includes the “best interests” factor that is often discussed.  In other words, if a party does not present evidence at trial, for example, regarding a child’s relationship with extended family, then the party cannot complain that the court should have considered that relationship.  It is the court’s responsibility to use the sixteen factors to carefully consider all of the evidence presented by both parties, and then to make a decision based on the weight of the evidence.  The court is required to either explain its decision in court on the record or issue an opinion.  The court must address how it weighed each individual factor.  For example, one factor is the level of conflict between the parties.  The court must explain how it viewed the evidence on the matter and decide which parent, if either, it believes would be more willing to cooperate with the other parent.  Then, after addressing each factor, the court must explain how it reached it’s overall opinion.


What the J.W.I. case clearly illustrates is that once a trial court has made a decision and has fulfilled its duty to use the factors when rationalizing its decision, it can be difficult to prevail on an appeal of the decision.  In Pennsylvania, if a party decides to appeal a custody decision, the appellate court reviews the case on an “abuse of discretion” standard.  Basically, it means that if the trial court was reasonable and articulated its rationale using the sixteen factors, then more than likely the appellate court will affirm the trial court’s decision, even if the appellate court thinks that it would have decided the case differently.  This “abuse of discretion” standard is extremely difficult to overcome, because in more cases than not, the trial court is not wholly and completely off-base in making its decision.  This standard of review takes into consideration the facts that the trial court was able to review the evidence in a more comprehensive way than the appellate court and that the trial court was able to watch witnesses testify and make character assessments.  In most cases, the appellate court finds that the trial court was not abusing its decision-making authority in reaching its decision.   An appellate court cannot simply review the evidence on its own and make its own decision.  The appellate court can only decide whether the trial court made a gross mistake and should re-evaluate the evidence.

Therefore, it is important to clearly and persuasively present your case at the trial level, because once it has been decided, in more cases than not, an appeal will not be successful.  Even more importantly, it is important for parents to shift their war-like attitudes during custody litigation, and to begin to work on healing their relationship with the other parent, at least to the point of being able to civilly discuss what is best for the child and how to cooperate.  Particularly in high-conflict cases, a professional, such as a co-parenting counselor, may be needed to help parents, especially initially.

If you are involved in custody litigation, you should thoroughly discuss your options with your attorney.  Proceeding with a custody trial means that you are ultimately placing the decision regarding your children in the hands of a judge.  Most of the time, judges try to make the best decision that they can, but the system is far from perfect.  Simply because you are not happy with the result does not mean that you will win an appeal.  Therefore, you should carefully consider whether you might be able to reach a settlement with the other parent.  A settlement may not result in the exact resolution that you desire, but it potentially could be much closer than the decision of a court.  Moreover, you remain in partial control of the decision.  That said, there are simply some situations where a settlement simply is not feasible, in which case, you should work closely with your attorney to understand the sixteen custody factors so that you can present the best evidence possible when at trial.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Wednesday, August 06, 2014

Separation is a great time to change your passwords!

Your significant other probably knows your passwords or can guess them.  When you separate - for your own safety and security - change your passwords as well as the clues to reset your password.  For hints on how to write strong, secure passwords, click here.

Use letters, numbers and symbols -- and never full words.

Tuesday, August 05, 2014

Financial Infidelity

Is financial deception a problem in your relationship?  Click here for an article on how to recognize the signs.

Learn to recognize the signs of financial infidelity.

Monday, August 04, 2014

In the lazy days of summer, practice communication

Between swim lessons and vacations and summer camps, divorced and non-married parents often become more lax on the communication that they establish during the school year.  It is easy for all parents to push summer reading assignments to the back-burner.  It is even easier for parents who divide physical custody, perhaps with some hope that the other parent will use their precious fun, summer time to fulfill the obligations.  The problem is that September always arrives, as does school year rigidity and responsibilities.

Because the demands of summer schedules are often lower, summer is a great time for parents to work on their communication strategies.  Instead of needing to oversee nightly homework, parents with shared and partial custody can practice communicating regarding, for example, a long-term book report project so that neither parent is stuck trying to cram it in at the last minute.

To the extent possible, work with the other parent to share the responsibility for overseeing and assisting your child with any summer assignments.  Perhaps a weekly email, text message or phone call with the other parent regarding the status of the assignment would be effective.  If your child is struggling with an aspect of the assignment, this designated communication time would be a great time to remember to pass along the information.  In the hustle and bustle of a custody exchange, this type of information is often forgotten.  By setting up a specific time to communicate regarding your child’s school work, both parents are more likely to stay involved and remain abreast of any arising issues.  By establishing this good habit during the summer, when the sounds of crickets have faded and the school year is barreling along, you will be in a better position to ace the school year with the help of the other parent.

Written by Elizabeth A. Bokermann, Esquire, associate attorney with the Law Offices of Linda A. Kerns, LLC.

Thursday, July 31, 2014

Another reason to carefully consider including post-emancipation support clauses in your agreement

Last week, we posted about a recent Pennsylvania case that found that a father did not have to pay college expenses pursuant to his Property Settlement Agreement due to the particular facts and language of the contract (click here to read that post).  This week, we are highlighting a case with the exact opposite results.

In W.A.M. v. S.P.C., the Pennsylvania Superior Court recently held that, pursuant to the terms of his Missouri settlement agreement, a Father had to continue to pay child support for his child, who was enrolled in college.  In this case, Father had agreed, at the time of the divorce, to continue paying child support past the typical age of emancipation under certain circumstances.  One instance where Father had to continue paying was if his child was enrolled in college.  Father argued that he should not have to pay for college because he did not often speak to his child and because under Pennsylvania law, the child was emancipated.  The Court disagreed, because the language of the agreement was unambiguous.  Therefore, Father’s testimony regarding his relationship with his child, along with other evidence, did not matter.

Unlike in the Mazurek v. Russell case, where the court had to interpret what the ambiguous word “unreasonable” meant, in this case, the language of the contract was clear.  Father had to continue to pay child support if certain circumstances arose.  There was no room for further interpretation.

This contrast between outcomes in similar situations further emphasizes the importance of carefully considering whether it is wise to include a post-emancipation support clause in a property settlement agreement or postnuptial agreement.  These clauses, whether simply for child support or for college tuition, can be extremely tricky to draft, especially because so much in the future is unforeseeable.  In last week’s case, the Father in Mazurek may have been able to convince the court that he should not have to pay for his child’s college expenses if he could have demonstrated that his child, for example, had a chronic addiction problem and likely was not ready to attend and excel in college.  On the other hand, the Father in this week’s case, W.A.M., likely still would have been required to pay child support for his child, even if he could have proved to the exact same circumstances to the court, because there was no ambiguity in the contract language for the court to consider.  Even though this may not seem fair, it is a basic tenet of contract law.  Therefore, as we previously emphasized, you must carefully and thoroughly consider whether it is in your best interests to include a post-emancipation support provision in your settlement agreement.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at Law Offices of Linda A. Kerns, LLC.

Wednesday, July 30, 2014

What can I expect from Social Security when I retire?

If you plan on retiring, you can use the calculator on the Social Security Administration website to calculate your anticipated social security benefit.

You can use the Quick Calculator to get a rough idea of what to expect from Social Security.  For example, if you are currently 64 years old, earn $40,000 per year and plan to retire at the age of 66, your estimated Social Security Benefit, according to the website, is $1,206 per month.

With government budgeting issues as well as changes in elected officials and the viability of a strong Social Security program in the future, benefit amounts could decrease or disappear in the future.  However, if you are planning to retire in the next few years, these calculators could help you for planning purposes.

The United States Government produced a Retirement Toolkit to explain Social Security, Medicare Parts A and B and other financial issues facing retirees.  This provides you with a great place to start your research.

Monday, July 28, 2014

I received notice for a court date for my family law case, what should I expect?

In Pennsylvania, there are many different types of court dates.  Support, custody and divorce all have separate docket numbers, and they each work a little bit differently.  They even differ from county to county within Pennsylvania.  Likewise, there are “court” appearances that occur in front of judges, masters and conference officers, depending on what is at issue and what stage of litigation you are in.  Due to the many different reasons that you might need to go to court, it is impossible to specifically state what you should expect.  Only your attorney can specifically advise you as to what you can expect for a given court date.  That said, there are some general things that should occur prior to your court date and on the day that you go to court.

Prior to attending your court hearing, you should work closely with your attorney to accumulate all the relevant documents and evidence to take with you to court.  For example, if you have a court hearing regarding child support, your attorney will likely want you to send her your tax return and W2 from the prior year, several of your most recent pay stubs and receipts for any extraordinary expenses for your child, such as private school tuition.  You should provide these documents to your attorney well-prior to the court date so that your attorney has time to read the documents, clarify information with you, give you the chance to obtain additional documentation as needed, and to make copies for court.  Sometimes, depending on the type of hearing, your attorney even has to provide copies of the documents to the court a couple of weeks prior to the actual court hearing.

You also may need to schedule a telephone call or meeting with your attorney so that you can prepare for the hearing.  Preparations may include reviewing the facts, reviewing documents or other evidence and explaining what may occur at the hearing.  If a settlement is a possibility, your attorney will want to discuss your expectations with you.

On the day of the hearing, there are a few more things to consider.  You usually do not need to wear a full suit or business attire to the hearing; however, you do want to look neat and dressed appropriately.  For men, slacks and a polo shirt, button-down shirt or sweater would be appropriate.  For women, slacks or a skirt with a blouse or sweater, or a business casual dress would be appropriate.  Remember that a court appearance is not the time to make a fashion statement. Sticking with simple, conservative and modest clothing is a wise decision.  Leave your shorts, jeans, tshirts and slinky tank-tops at home.  Also, if you have noticeable tattoos on your arms or legs, it may be advisable to wear clothing that at least partially covers them.  Although our courts are run by individuals, who are everyday people outside of the courtroom, just like you and me, our courtrooms and the expected behavior in them still tend to be conservative.

Make sure you give yourself plenty of time to not only find the courthouse, but also to find the appropriate courtroom or office.  Parking can be difficult to find, and remember that you likely will not be able to leave the court hearing to feed a parking meter.  Also, hearings can and often do run late, which means that you should have a back-up plan in case you miss your expected train.  Plan appropriately so that you are not worrying about your car or transportation when you should be concentrating on the hearing.

When you arrive at the courthouse, you will go through security and your belongings will be screened.  The lines can be long, which is yet another reason to arrive early.  Depending on the courthouse, you may or may not be able to bring water, a drink and snacks with you.  Check with your attorney in advance.  If you can bring them with you, it is wise to bring something with you.  If you cannot, make sure to eat breakfast, as you could be waiting for quite some time.

Once you have finally made it to the courtroom waiting area, find your attorney so that you can check in with the staff, as needed.  Then, expect to wait, perhaps for a very long time.  Simply because your notice says that your hearing is at 9 a.m., does not mean that it will begin sharply at 9 a.m..  Yes, you must be there on time, because it could start on time, but there likely will be many other individuals there scheduled for hearings in the same courtroom at the same time.  There is no way to predict whether your case will be called first or last, hence the possibility to have a significant wait.  Therefore, bring with you a book to read or something else to pass the time.  Particularly in some of our busier counties and courtrooms, the wait can last a couple of hours or longer.

Finally, your case is called!  You will proceed into the courtroom or conference room, depending on the type of hearing.  What the room will look like will greatly vary depending on what county you are in and what type of hearing you are having.  Your attorney should be able to give you insight ahead of time.  Once in the room, there is a good chance that the hearing will be recorded, either electronically or by a court reporter who sits in the courtroom and types every single word that each person in the room says.  Therefore, it is important to be polite and respectful - after all, there will be a concrete and undeniable record of what was said at the end of the day.  Most people make the mistake of not speaking loudly or clearly.  If the judge cannot hear you or must keep asking you to repeat yourself, then you are likely not helping your case.

The judge or master or conference officer is likely going to be making a decision that will directly and significantly impact your life.  It is appropriate and expected that you would be respectful of that person.  For a judge, it is appropriate to use the phrase “Your Honor” when addressing him or her.  For other fact finders, yes sir/no sir is appropriate.  Particularly in family law cases, it is usual and expected that your emotions might be heightened.  Even though it is understandable on a personal level, try to keep any anger or frustration in check.  It is important that the judge view you as a polite, respectful and even-tempered person.  This includes your attitude towards the other party. When you are respectful of the court, the court will likely respect you and will be more willing to thoughtfully consider your requests.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, July 24, 2014

Paying for college expenses in Pennsylvania

Absent an agreement, Pennsylvania parents are not required by law to pay for their child’s college expenses.  This is true whether the parents are unmarried, married or divorced.  A child in Pennsylvania is, in most cases, considered emancipated either upon turning 18 years old or upon their high school graduation, whichever is later.  In situations where the child’s parents are not married or are divorced, and one parent has a child support obligation for that child, the obligor/payor parent’s duty to pay support would terminate upon emancipation.  

This also means that the parent does not have a Commonwealth-imposed obligation to pay for the child’s college expenses.  That said, some divorcing parents choose to contemplate the payment of college expenses in their Property Settlement Agreement.  A Property Settlement Agreement generally divides assets and debts between the parties and outlines any obligations between the parties at the time of the divorce.  Although it is almost never advisable to do so, one of the obligations that some parties choose to include is the obligation to pay for educational and/or college expenses.

Because Pennsylvania does not require a parent to pay for a child’s college expenses, the only way that divorcing parents can require the other parent to help pay for college expenses is to contractually obligate the other parent to pay.  If the parties choose to include obligatory language within the Property Settlement Agreement, they also often include language which states that the obligor/payor should have a role in the choice of educational institution, but that the parent may not “unreasonably” withhold consent.  In other words, both parents should have a role in selecting the college that the child will attend, but that neither parent should deny the child the opportunity to attend a particular college on an unreasonable basis.

In the recent Pennsylvania case, Mazurek v. Russell, the appellate court carefully considered what this language might mean and when a parent might be reasonable in withholding consent for a child to attend a particular college.  In Mazurek, the divorced parents had four children together, and during the divorce, the parties agreed that Father should pay for 100% of each child’s college expenses.  However, the language of the actual agreement is particularly important, because it created terms to this agreement.  The language stated, in part: “It is the parties' intention that the Children attend such undergraduate institutions as are reasonable and appropriate for the Children, with the parties' mutual consent, which consent shall not be unreasonably withheld.”

The Father contended that he should not have to pay $50,000.00 for his son’s tuition at a particular school, and he listed specific reasons for his refusal to consent. Father stated that his son had performed poorly during high school and had been estranged from him for the past five years. Father said that he would pay for his son’s education, if his son ended the estrangement and maintained a 3.0 grade point average, along with a few similar requirements. When reviewing the language of the agreement, in light of the facts and circumstances, including Father’s concerns, the Court held that Father was reasonable in his refusal to pay for tuition. The Court felt that the reasons that Father articulated were reasonable, rather than unreasonable. Particularly important to the Court was the fact that the son was estranged from Father, and the Court cited other cases that had held similarly in the past.

If, for example, Father had refused to pay for tuition because he simply did not like the school or for no reason at all, the Court likely would have found that Father was being unreasonable and he would have been required to pay the tuition. However, in this particular case, Father was able to clearly articulate his concerns and they were reasonably related to his refusal to pay the expensive tuition.

In light of this opinion, it is important for parents to remember that, even if they believe that they are contracting to require both or one parent to pay for a child’s college expenses, if there is a dispute in the future, the facts and the language of the contract will play a role in deciding the outcome of the dispute. Therefore, it is important when drafting a property settlement agreement or postnuptial agreement to thoroughly consider the variety of possibilities that could arise in the future. It is never possible to anticipate all the various circumstances that could arise, but it is important to consider that unpredictable things occur. For example, would you still want to be required to pay for tuition for a child who develops a chronic addiction issue during high school and who likely would be unsuccessful in a college environment? Would you want to be required to pay for tuition at a culinary school or other vocational school, as compared to a traditional four-year college? Would you want to be required to pay for tuition at a private, expensive college, when the child receives a scholarship to an in-state, public college? Would you want to be required to pay for tuition if your child decided to major in basket-weaving? Would you want to be require to pay for tuition if your child refused to speak with you? Additionally, if parents insist on these college clauses, they should define which related expenses, such as room and board, are included so that they are not agreeing to a blank check.

Again, when drafting any provision that imposes requirements on you in the future, you need to carefully consider, to the extent possible, what circumstances may change in the future. Discuss these issues with your attorney in detail, so that you can decide what the best options are for you. The cited case above applies to cases in Pennsylvania. If your case is in a different state, the laws will differ. Significantly, New Jersey has a much more liberal attitude toward emancipation and post-high school expenses.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.