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.

Friday, July 18, 2014

Considering the dangers of social media

On a typical day, how many times do you use social media?  People scroll through Facebook updates while riding the train.  Others use Instagram to post pictures of their vacations, their kids, their pets and even their dinner.  Some use Twitter to re-tweet the latest viral video.  Most know what their co-workers did over the weekend before even arriving at work on Monday morning.  Parents don’t need to turn on the television to watch for school closures, because they liked their toddler’s daycare on Facebook and can get the updates there.  In short, social media completely pervades (or invades, depending on your point of view) many people’s lives.


Because of the prevalence and the ease of use of social media, most people rarely think about the impact of social media on their lives.  Sure, they may hear about some “odd-ball” story on the news about a person being fired for leaving a rant on their boss’ Facebook wall or for posting inappropriate pictures, but people consider their own use of social media as benign.  No harm - no foul.


The concern is that social media can cause major problems for individuals, and, due to the “social” nature of social media, a lot of the problems can arise from postings by third parties.  In other words, a person may never consider posting a picture from a rowdy Bachelorette party, but her friends might not be so discriminating.  Then, all of the sudden, all of the girl’s co-workers, friends, and even her grandmother see pictures of her out dancing on a bar.  It’s not the quickest way to get a promotion, and it could even cause problems for her.




These issues can become even more complicated for individuals going through a divorce or in the midst of a custody battle.  Heck, inappropriate pictures or comments on social media can be the starting point of a divorce or custody battle.  Therefore, it is particularly important for an individual to consider how social media activity affects not only himself, but also his spouse and even his children.


Facebook, Twitter, Instagram and other social media sites are a divorce lawyer’s gold mine for information.  For example, simply by checking Facebook, our office recently found out that a litigant lied about their marital status in a pleading.  Even if you think that your information is private, you cannot be sure that your “friends” are keeping your information private.


Here is an interesting article about how some individuals are choosing to consider the impact of social media on their lives prior to getting married by contemplating social media use and potential penalties in prenuptial agreements.  If you are considering a prenuptial agreement, in this age of pervasive social media, it would be wise to discuss such provisions with your attorney.  If you are already married, but are in a position where you are considering a postnuptial agreement, it would also be a relevant time to discuss similar provisions with your attorney.  For everyone else, still strongly consider the implications of social media in your life and discuss them with your spouse or significant other.

Most attorneys recommend that anyone going through a divorce, support or custody battle should close their social media accounts for the duration of the litigation.  If you choose to disregard this advice, you are acting at your own peril.


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

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Friday, June 13, 2014

Hey Dad - I don't want to have a relationship with you, but pay for my expensive college

In New Jersey, as most people know, there is no automatic emancipation of a child from a parent's obligation to pay child support, when the child graduates from high school.  In fact, divorce and separated parents can be ordered by a New Jersey Court to pay for some or all of a child's higher education expenses.  These cases can get especially sticky when the child and the parent have a strained or no relationship.  The court orders the parent to pay, but the child refuses to have a relationship with the parent.  In an intact family, the parent could refuse to pay until the child became more cooperative.

Hot off the press, a New Jersey Trial Court judge delved into the acrimonious butting of heads between a father and college age son, when the son refused to have a relationship with the father, yet expected him to contribute to his college tuition and even increased his demand to cover the anticipated cost of transferring from a state school to a much more expensive, private, out of state school.

The opinion can be found here  and includes a thorough tutorial on the status of the issue in New Jersey.  This may not be the end of the case, as it could be appealed to the Appellate Court.

Wednesday, June 11, 2014

When executing a will, do not have it notarized in the parking lot

An interesting case was just decided in New Jersey regarding a second wife who allegedly changed her husband's will at a time when she was in charge of his medication and therefore essentially had power over him.  After years of litigation, the second wife was ordered to pay the attorneys fees of her husband's estate, which reached almost $400,000, due to her scandalous, frivolous and vexatious litigation tactics.  You can read the opinion here:

In the Matter of the Estate of Adrian J. Folcher

On another note, I doubt she will ever pay the fees --- she could potentially qualify to file for bankruptcy and the law firm will never see its money.  Awarding attorney's fees is relatively rare so her behavior was no doubt completely inappropriate.

Tuesday, May 13, 2014

Present, Past and Future - the things to think about when getting a divorce

Thinking about a divorce?  Or do you suspect your spouse may want to divorce you?  Before getting overwhelmed, divide your thoughts into three simple categories:  Present, Past and Future.


Present

Divorce is a numbers game.  Your lawyer, judges, mediators, counsellors and court staff have handled hundreds of divorces and face most without the emotion that might cloud your judgment.  One of the first thing that is important in a divorce is:  What is going on now . . . at the present time?  Create a snapshot of the present and get statements and invoices and documentation of your family's assets, debts, bills, income, investments, retirement accounts, and anything you need to understand the hear and the now.  As far as children, keep a calendar or log of their time with you and time with your spouse as well as expected expenses and scheduled: tuition, medical needs, field trips, camps, music lesson, sports, etc.  What is your budget to keep the household running?


Past

What happened previously may or may not be relevant to your divorce proceeding.  Generally, a court will not go back and undo each and every transaction in your marriage.  However, if you received an inheritance, brought property to the marriage or believe your spouse may have hidden assets during the marriage - now is the time to gather that documentation. Your lawyer can analyze for you and decide what is relevant.


Future

Sometimes you can only think about getting through the day, and not the plans for your post-divorce life.  However, eventually, your future will be taken into account in deciding how to resolve your divorce.  What will you earn?  How much will your health insurance cost?  Where will you live?  What will you need for retirement.

Still overwhelmed?  That feeling comes with the divorce territory.  But when you are able to think a bit more clearly, start with dividing your thoughts into Present, Past and Future as outlined above and you may have more success in organizing your thoughts.


Monday, April 28, 2014

Tuesday, April 01, 2014

As most people familiar with child custody litigation know, when a trial court decides an award of physical or legal custody, the judge must address the sixteen factors in the custody statute and delineate the reasons for the decision on the record or in open court.

  

The section of the custody statute reads as follows:

§ 5328.  Factors to consider when awarding custody.
(a)  Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1)  Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2)  The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(2.1)  The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3)  The parental duties performed by each party on behalf of the child.
(4)  The need for stability and continuity in the child's education, family life and community life.
(5)  The availability of extended family.
(6)  The child's sibling relationships.
(7)  The well-reasoned preference of the child, based on the child's maturity and judgment.
(8)  The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9)  Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
(10)  Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11)  The proximity of the residences of the parties.
(12)  Each party's availability to care for the child or ability to make appropriate child-care arrangements.
(13)  The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14)  The history of drug or alcohol abuse of a party or member of a party's household.
(15)  The mental and physical condition of a party or member of a party's household.
(16)  Any other relevant factor.


However, every matter before a trial court does not involve an award of custody.  Parents often ask judges to decide much more narrow issues, such as pick up and drop off locations, transportation responsibilities, telephone call schedules and choice of sports or activities.

Recently, a mother and father in Chester County, Pennsylvania had a dispute over whether the father should be required to take vacation time from work during the three weeks in the summer when he had custody of the children.  The mother believed that the father should take off from work during the entire three weeks and be the primary supervisor of the children.  The father argued that her position was unreasonable and he should be able to work, as long as he had proper supervision and activities for the children while he was working.

The trial court sided with the father and the mother appealed.  Part of the mother's complaint was that the trial court judge did not go through all sixteen of the factors in the custody statute and weigh each and every factor in relation to the decision.  The father argued that the trial court considered the best interests of the children and a recitation and specific comment on all sixteen factors in the custody statute is not necessary when the court is deciding a single issue which does not change the actual physical or legal custody.

The Superior Court agreed with the father.  This case provides guidance for judges and litigants.  When a trial court must decide on legal or physical custody, each of the sixteen factors must be addressed.  However, when deciding on a single issue, such as whether a parent will work during their custody time, the judge must decide by considering the children's best interest.  You can read the complete case here.


Friday, February 07, 2014

What is Co-parenting Counselling and How Can it Help?

My colleague, Stephanie Newberg, M.Ed., MSW, LCSW wrote a detailed, informative article regarding parenting your children after separation.  As an experience co-parenting counselor, she explains the process and provides tips.  Read her article: Divorcing Parents: Proven Ways to Ease the Transition.



Tuesday, February 04, 2014

Who claims the kids?

Every year, about this time, the Internal Revenue Service updates its very helpful Publication 504 Divorced or Separated Individuals.  Nothing substitutes for the advice of an experienced accountant and attorney but Publication 504, updated yearly, can give you guidance.

Remember, if you are not the custodial parent and are claiming a child as a dependent on your tax return, attach Form 8332 Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent to your return.



Wednesday, January 15, 2014

Is it child abuse to leave your child in the car seat, in a locked car, while you run a quick errand?

The New Jersey Appellate Court said yes to that question, in certain circumstances.  Read the opinion here.

Grandparents' and Siblings' Rights in New Jersey

In a tragic New Jersey case, the appellate court reversed a trial court decision to dismiss a Grandparents' Complaint for Custody time with their child.  The Appellate Division approved the opinion for publication, which means it can be cited and has precedential value.  You can read the entire opinion here: R.K. and A.K. versus D.L., Jr.  The 55 page opinion, while lengthy, provides an excellent review of the New Jersey law in this area and is a must read for anyone embarking on litigation concerning a grandchild.

In this case, the Maternal Grandparents sued their son-in-law, the Father of their grandchild, Olga, for the right to have contact with their grandchild.  Olga's Mother had recently died.  Mother and Father had been married.  When they divorced, the court awarded custody of Olga, and her younger infant brother, to Mother, who resided with Maternal Grandparents.  Mother had a history of drug addiction so the Maternal Grandparents provided support and assistance to Mother in the raising and caring of the two children.  While Father still saw the children, he remained bitter that, considering Mother's history of drug abuse, the trial court still made her primary residential parent.

Only a few months after the trial court awarded Mother of the two children, the parties' infant son, Charles, drowned in a koi pond on the property, after managing to slip out of the house unnoticed and falling into the one foot deep pond.  After this devastating incident, Father sued for primary custody of Olga, alleging that Mother and Maternal Grandparents were incapable of caring for her.  Again, his request was denied by the trial court.

About six (6) years later, Mother was diagnosed with a "heart valve problem" and ended up in the hospital for a month.  Father then took custody of Olga but did not allow her to visit her mother even once during the month long stay.  Mother died at the end of the month.

Olga, who by now was twelve (12) years old, remained in Father's custody after Mother's death.  Over the next year or so, Father permitted Olga to call Maternal Grandparents only nine (9) times before cutting off all communication whatsoever.  Father believed he was justified because he felt Maternal Grandparents, as well as Mother when she was alive, placed Olga in danger and abused and neglected her.

Grandparents finally filed a Complaint for Grandparent Visitation.  Unfortunately, after a number of procedural anomalies, the trial court eventually dismissed Grandparents' Complaint, without a full hearing.  As spelled out in the opinion, the Appellate Court reversed the decision and sent it back to the trial court to give Grandparents and opportunity for a full hearing.

This family's sad tale of loss and ensuing bitterness resulted in a completely fractured relationship wherein Father cut off communication with his child's Grandparents while she was still dealing with the unexpected loss of her Mother at such a young age.  Notably, this child had also suffered the loss of her young brother. In the midst of all of this devastation, the legal battle ensued.  By now, both parties have undoubtedly spent significant sums on the litigation --- and they have not even gotten to the trial stage.

Most lawyers, when faced with grandparent cases, first attempt to work out some type of a resolution without the need for court intervention.  Because the families are usually so fractured, litigation is the last thing they need.  However, when attempts at an amicable solution do not result in an agreement, the parties are left with the expense, uncertainties and pain of litigation.  Notably, even though we have a statute on the subject in New Jersey, a grant of visitation to grandparents is not automatic.  Likewise, a parent, despite the autonomy inherent in that role, cannot always prevent a grandparent from obtaining visitation time.  The best first step, if you find yourself in this situation, is to understand the law and consult with an attorney who can explain the process and the strengths and weaknesses of your case.


Tuesday, January 14, 2014

How much can you afford to pay in rent?

Separation and divorce often means moving and possibly renting a new place, even if only temporarily. What other expenses should be in your budget besides rent?  One of my favorite websites, Apartment Therapy, posted a great article today:  What Rent Can You Really Afford?  Budgeting for Extra Monthly Costs.



Friday, January 03, 2014

Divorce through the eyes of a child

Henry James published his novel about a young daughter caught in the crossfire between warring parents,  What Maisie New, in 1897.  Hollywood updated the story and set it in modern day Manhattan in the film version of What Maisie Knew.  While the parents in this story are sensationally irresponsible and unkind, any parent going through a separation or a divorce might see themselves in the story, even if only a little bit.

Here is the movie trailer: