Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.



Get organized! Your monthly income and expenses often become important factors in divorce, support and alimony cases. Create a chart to keep track of the amounts that you pay each month for each of your obligations. Your chart should reflect all of your expenses, including: mortgage/rent, each separate utility, insurance payments, loan payments, credit card payment, cable and cell phone costs, tuition and school fees, along with any other expenses you regularly incur.

Spend $70,000 arguing over $15,000

If you have a dispute with your spouse or ex-spouse over $15,000, how much should you spend in counsel fees and costs to resolve the issue?  In the case of Kenneth Schaefer v. Theresa Kamery fka Shaefer, the parties fees and costs exceeded $70,000, before the case even reached the appellate court.

According to the opinion, this couple's dispute got down to the nitty gritty, with Theresa alleging that Kenneth owed her $30 for one of the children's school trips and Kenneth claimed that Theresa owed him $10 to fix a tire on their son's truck.  Besides the financial squabbling, it turned out the one of the parties' sons had deceived both parents into thinking that he was attending college, when he had in fact dropped out.

In the opinion, the trial court found that both parties took unreasonable positions in the case and although each asked that the other party pay their fees and costs, the trial court ordered that each party was responsible for his or her own fees.

During the trial, Theresa attempted to introduce a document that she prepared which summarized her claims for child related expenses.  Kenneth's attorney objected to this self-serving and self-prepared document. The judge allowed it into evidence but appears to have denied any listed expenses without back-up documentation.

Clients often attempt to prepare charts, graphs and spreadsheets in support of their position.  However, receipts for the actual expenses are much more persuasive than a document prepared by the client.  If you want to prepare a summary chart or graph, just make sure you have a document to back up each line item.

To read the court's opinion in this case, click here.

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.


We all rely on friends and family for support during difficult times, and conversations with them can relieve stress and frustrations, especially during a pending divorce or custody case. But try not to become a "Debbie Downer" or "Negative Nancy." Even during rough times in your life, there are happy and funny things to discuss. Also, remember to discuss your loved ones' lives as well. They too have struggles, even if they are not as pronounced as your pending litigation.

Aggressive, vindictive blatant untruths hurled during a custody fight end with a father being limited to supervised visitation

Last week, the Superior Court of Pennsylvania addressed a sad case on appeal from the Bucks County trial court, M.O. v. F.W., 2012 Pa.Super 49.  The parents, who did not marry, had been involved in protracted litigation over their daughter.  The fighting started even before the child was born.  Notably, during the litigation, the parties engaged in a comprehensive custody evaluation with a private evaluator.  According to the Opinion of the Court, the parties agreed to share legal custody and Mother would have primary physical custody.  Unfortunately, the parents continued to battle and before the child’s fourth birthday, Father filed a Protection from Abuse Petition against Mother and her boyfriend.  He accused them of physically, emotionally, psychologically and sexually abusing the young girl.  Father also filed an Emergency Petition to Modify Custody.  A great deal of rancorous litigation ensued.  Mother responded that Father’s allegations were patently false and that Father had been continually having the child evaluated and examined by experts without her knowledge or agreement, which violated their joint legal custody arrangement.  


After hearing, the trial court entered a Temporary Order, which provided Mother with sole legal and physical custody and granted Father only supervised visits.  That Order eventually became a final order, and Father appealed.  

The Opinion indicates that not only did the Court not find evidence of abuse when the child was in Mother’s custody, but also that Father had actually manufactured the evidence and allegations as a custody strategy.  During the testimony, it came to light that Father routinely had the toddler strip-searched when returning from Mother’s for an intrusive and comprehensive examination by Father, as well as numerous emergency trips to the doctor and the police station.  The court noted that none of the investigations by either the police department or Children & Youth Services substantiated any of Father’s allegations and Father’s witnesses did not corroborate his stories.  Father also attacked the judge and the court by attempting to have the judge recused.  Additionally, Father made arguments on appeal regarding evidentiary issues.  


After a thorough review, the Superior Court affirmed the trial court’s detailed Opinion so that Father is now restricted to limited supervised visitation, which consists of only a few hours per week.  Obviously, this arrangement departs drastically from the substantial custody time he previously enjoyed.  


High conflict custody disputes often result in the devastation of the relationship between the parents, but also irrevocable harm to the child and other friends and family members in the path of the fighting.  Moreover, sometimes parties begin to spiral out of control in other areas of their lives as well, which can cause other financial and legal problems.   How do you avoid this scorched earth result?  


1. Put the interests of your child above your rancor and ill-will towards the other parent.


2. Be realistic and reasonable in your demands and positions.


3. Take this opportunity to be a role model for your child, demonstrating how a mature, reasonable adult deals with an adverse situation.


4. Do not let jealousy and rage color your emotions.  If the other parent becomes involved with a new paramour, then that person will be around your child.  Therefore, having a cordial relationship will benefit everyone.


This case involved unsubstantiated allegations, but abuse does happen and parents should not be swayed or deterred from vigorously safeguarding their children.  This Father’s methods including strip-searching the child and incessant visits to the police and doctor, along with his overall belligerent attitude, only added to the trauma.  Even if, heaven forbid, this child had been a victim of abuse, Father’s tactics would have only added to the tragedy.  

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Health insurance ---- what will you do after a divorce if you are currently covered under your spouse's plan?  You may be eligible for COBRA -- which means you can continue to purchase health insurance through your spouse's employer for a limited time. (By the way -- COBRA stands for Consolidated Omnibus Budget Reconciliation Act.)   You should gather all of the facts because, in some cases, it may also be more economical to purchase your own plan.  Additionally, not every employer must provide COBRA benefits.

For FAQs on COBRA - how it works, who is entitled to benefits, and other details, click here.

Four mistakes that litigants make that still befuddle and surprise me.

1. Mumble or speak so softly that everyone is straining to hear them.  Courtrooms can be loud places with lots of background noises.  Court staff usually mill around the room, conducting the business of the court.  If there is a court reporter, his or her fingers are clackity-clack-clacking on the machine.  Some older courtrooms have HVAC systems that produce more noise than a rock concert.  When you have something to say, make sure people can hear it.  Speak slowly and clearly, and direct your comments to the judge who is listening to the case.  You will automatically sound more credible if you speak with an authoritative, clear voice.  


2. Arguing with their own attorney, the opposing side’s attorney or the judge.  Arguing with your own attorney is simply poor form and shows the judge that you and your own attorney are not in control or in agreement.  At least a client and lawyer should show a unified front in the courtroom.  Arguing with the other attorney or the judge can demonstrate that you do not have the ability to hold your temper or that you are a generally unreasonable and belligerent person.  Remember, the judge is evaluating you for credibility, demeanor and an overall impression in order to make a decision.  As a client, you are there to provide evidence by way of testimony, not argument.  Allow your attorney to argue for you.

3. Inappropriate dress.  You are asking the court to rule on very specific and personal issues involving you, your family, your children and your money.  Come dressed neatly and professionally.  However, this does not always mean wearing a stiff suit or fancy dress.  It is also important to at least be comfortable because court can be such a nerve-wracking experience.  Sometimes, a tie is not necessary for a gentleman as long as he is wearing a nice shirt, slacks and shoes.  You should talk with your counsel about how to dress for court.


4. Inappropriate reactions.  I will never forget my very first job out of law school, clerking for a judge in Family Court.  We often spoke about the cases in chambers and the judge would comment about the litigants and their reactions in court.  Judges are human beings, just like the rest of us, and their observations influence their thoughts.  Think very carefully about the impression that you are making.  Additionally, lawyers are trained, and often very good at, using examination questions to elicit a specific result.  If opposing counsel knows that it is easy to get a reaction out of you, she will use it to her advantage.

In Pennsylvania, do I have to share my settlement with my spouse?

An individual may be entitled to a monetary settlement for many various reasons.  Perhaps, the most frequent reason that a person may receive a settlement is as part of the resolution of a claim arising from an injury or workers compensation claim.  Individuals also may receive settlements as part of a class action lawsuit or other civil claim.

Recently, the Supreme Court of Pennsylvania clarified in Focht v. Focht whether the funds received as part of a settlement are considered marital property during equitable distribution.  In general, property or assets acquired prior to the date of marriage OR after the date of separation are not marital property.  Anything acquired between the date of marriage and the date of separation is considered marital property, and therefore is subject to equitable distribution upon divorce.  Under this general standard, if both the cause of action and the settlement occur during the marriage, then the funds are clearly marital property subject to equitable distribution.  Likewise, if both the cause of action and settlement occur either before the date of marriage or after the date of separation, then the funds are non-marital property. 

The issue becomes a bit more confusing if the either the cause of action accrues prior to the date of marriage or the settlement is received after the date of separation.  In Focht, the Court clarified that the rule for determining whether the funds are marital property depends on when the cause of action accrues.  In relation to a “cause of action,” the word “accrue” has a specific legal meaning, and the Court cites the definition as “to come into existence as an enforceable claim or right; to arise.”  The Court further clarifies that “a cause of action accrues only when one has the right to institute a suit.”  In other words, a cause of action accrues when an individual knows or should know that something has occurred that gives him or her the right to pursue legal action and a potential financial award or settlement.

For example, if an individual is crossing the street and is hit by a car, then the cause of action accrues when the accident happens.  Using this example, an individual might file a lawsuit against the driver.  Litigating the case may take years and the injured individual may not receive the settlement until quite some time after the actual injury occurred.  If you add a marriage and divorce into the scenario, an individual could easily be married or divorced during the span of the litigation.  Under the Focht case, determining whether the injured individual’s settlement is marital property would depend on the marital status of the person when they were hit by the car.  If the person was hit by the car prior to the date of the marriage, then it does not matter whether the settlement is received prior to or after the date of marriage.  The settlement will be non-marital property.  On the other hand, if the person was hit by the car after the date of marriage but before the date of separation, then it does not matter whether the settlement is received prior to or after the date of separation.  The settlement will be marital property.

If you are going through a divorce, consult with your attorney regarding any settlement that you have received or may receive in the future, as specific facts and nuances in each case can change the legal scenario.

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

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.


Think before you tweet, email, post, facebook, myspace, instant message or broadcast. Whatever you put out there for public consumption, even if you later attempt to retract it, could be there forever. In the heat of the moment, you could say something that you will regret forever. Take a breath, calm down, and keep your thoughts to yourself.

Yet another warning of the dangers of Facebook during litigation

It will never cease to amaze us the comments, pictures and information that people will post on their social media accounts.  As this story demonstrates, your actions on the internet can cause even more problems for you during litigation.  If you would not want a judge to read it, then you should not post it on the internet!

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.



If you are going through a divorce and you have drafted a Health Care Directive, Power of Attorney, Living Trust, Living Will or other legal document giving your spouse a position of power, consult with your attorney immediately. You may not want your spouse to have decision making power of your life or death.

How to obtain information on your past tax filings from the IRS

Are you filing for divorce or child support and need copies of past tax returns or information about what you filed with the IRS?  You can actually obtain that information directly from the IRS.

Click here to learn how to order a Transcript of Account.  This document lists most of the line items reported on your tax return as originally filed.  If you cannot find your actual tax return, this document will at least provide information on what was filed.   This is a free service from the IRS.  you can find out more by clicking here.

You can also order a copy of an actual tax return for a fee.  Click here for the order form.

In a divorce situation, if you filed joint returns with your spouse and do not have copies, you can order the information directly from the IRS, bypassing the lack of cooperation you may be experiencing from the other side in a divorce matter.

I have a consultation scheduled with an attorney - what should I expect?

Knowing what will happen during your first meeting with a divorce lawyer will not eliminate the anxiety and tension that builds prior to your visit, but you may be more at ease if you know what to expect.

I cannot speak for other attorneys, because styles and practices may differ.  At my office, a client’s first interaction with an attorney begins with the first phone call or email.  I do not provide specific advice without a complete consultation, instead the purpose of the first phone call is for my office to get basic information: names of the parties involved (so that I can check for conflicts), addresses (so that I can determine whether the case is in a county where I normally practice), and basic facts about the parties and circumstances (are there children, is only one person a wage earner, are the parties separated or still together, is the case already in progress, etcetera).  

Overview of a Consultation

If a person decides to come in for a consultation, then we schedule an initial meeting that takes approximately 90 minutes.  During the meeting, I obtain additional information regarding the background and relevant facts.  Then I explain the legal procedure and we discuss a strategy or plan.  I provide the client with a packet of information that I have developed over the years so that the client does not have to take notes during the meeting.  

At the end of the consultation, I explain the future steps that I recommend, as well as any work the client needs to do, including: obtaining documents, researching values, etcetera.  I also quote my initial retainer fee at the end of the consultation, which is something I usually cannot do until I understand the ins and the outs of the case.  It is important to understand that an attorney does not represent a client and will not take action on behalf of a client until the retainer fee has been paid.

My website contains a list of documents that are helpful to bring to the first consultation.  Sometimes, clients simply do not have the documents, perhaps because their spouse has them or they are lost.  In that case, clients should bring what they have.  However, the more documents that the client brings, the more information I have to give the most comprehensive advice possible.

More Details About a Consultation

The consultation in my office begins in the reception area.  My legal assistant provides a short form for clients to fill out -- just the basics like the names, addresses and birth dates of the parties and the children.  I like to obtain most of my information during the actual interview, because I find I can get a more complete picture that way and, besides, everyone hates filling out paperwork.  My dog, Stormer, greets all clients, and I think he helps to calm nerves.  Clients also have the opportunity to have a coffee, tea, water or soda.  We also keep candy in the reception area -- a sweet treat to get your mind off of your troubles.  My legal assistant also collects the payment for the consultation.  We accept cash, checks and all major credit cards.

The actual consultation occurs in my conference room (where I have more candy and water or soda available).  I also have pens and notepads in case clients need to write something down -- although they rarely need to write down anything because I give out a comprehensive packet.

I begin the meeting by explaining the attorney-client privilege. I am duty-bound to keep everything we discuss private - even if the client does not hire me and moves on to another attorney.  I explain that it is important for the client to be as open and honest as possible with me so that I can give the best advice possible.  Understand that I have literally heard everything -- nothing you can say will shock or surprise me.  Because I deal with incredibly personal and intimate life details, it is important that I hear the unedited facts.

I ask questions and lead the conversation during the interview.  I have developed a format that assists me with obtaining all of the important and relevant information in an efficient manner.  Occasionally, a client will try to move off of my format and tell their story, their way.  That tactic is rarely helpful and can cause us to begin discussing non-relevant information.  I understand that every portion of your story is incredibly important and significant to you, but you are consulting with me so that I can provide legal advice, which means that I need to focus on the parts of your story that are most relevant.

I ask a lot of questions, beginning usually with the basics like the date of marriage, the date of separation (if the parties are separated) and the occupations and educational background of the parties.  As we get into a rhythm, I notice clients visibly relax.  All they need to to do is answer my questions, and it is cathartic for them.  They only need to respond.  It is not like I expect them to know where to start and provide me with a long narrative, while I simply take notes without giving them direction.

Sometimes, a client will say: "why do you need to know that" or "that's not relevant."  I assure you, there is a reason behind every single question that I ask.  I am trying to get through the consultation as efficiently as possible.

Once I have the facts, I then explain the procedure: How does a divorce get filed?  Who determines child support? What are the Court procedures like?  How long will this take?

I go over all of the aspects of the legal procedure, referring back to the facts gleaned during the interview process.  As I explain the procedure, I review the documents in the consultation packet that I provide.

Throughout the process, I am writing down our strategy options as well as any “homework” the client needs to do.  I photocopy that list and provide it to the client at the end of the session.  That way, the client leaves my office with an exact understanding of the plan I recommend.

Interested in scheduling a consultation?  Please call our office.

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.


On-going divorce or custody litigation can become overwhelming and all-consuming. Remember to still take time for yourself, participate in your favorite hobbies, exercise, and visit with friends and family.

Contra Proferentem - yes, that so-called "boilerplate language" in your agreement is actually VERY SIGNIFICANT

Contra Proferentem is a Latin term which means “against the offeror.”  A long held standard of contract law holds that if a clause in a contract appears to be ambiguous, it should be interpreted against the interests of the person who insisted that the clause be included. 


This concept usually arises when a parties cannot agree on the interpretation of a provision of a contract.  Generally, a contract must stand on its own and in any later dispute, the court will not consider outside evidence, instead relying on the "four corners" of the contract.  However, If the court reviews a contract and finds a clause ambiguous (the potential to have more than one meaning), it can determine which party wanted the clause included.  Then, the clause would be interpreted in the light most favorable to the opposing party.


This contra proferentem doctrine would not apply when BOTH parties drafted the wording of the agreement.  To avoid having a provision later interpreted against one party, most attorneys include a provision in contracts that for purposes of later interpretation, BOTH parties drafted the contract.  


Sometimes, clients wonder why lawyers include so much so called "legalese" in documents  . . .  and why what appears to be simple, can go on for pages and pages.  The doctrine of contra proferentem is just one reason why the  extra language is necessary - and placed in the contract for your protection.

Wait. The case is not over yet -- we need to divide the retirement accounts!

Your retirement account, along with your spouse's retirement account, are marital assets to be considered for division in your divorce.  Some people know this and accept it, while others insist that they earned the assets and that they will never share it with their spouse.  However, the law says otherwise.

First, retirement accounts are marital property, and will be considered in a division of assets in a divorce case.  You may think that you do not have to share your hard earned retirement savings with your spouse, but you would be mistaken.  Your spouse may angrily tell you that you will never get your hands on their retirement account, but the court will say otherwise.

Retirement accounts come in many forms: 401k, pensions, 403b, etc.  In a divorce situation, you should first identify all retirement accounts in either spouse's name.  For purposes of gathering information at this stage, you should understand that all retirement accounts in either spouse's name, even if they were started or earned before the marriage, will be considered as part of equitable distribution.  If you do not know what accounts exist or you cannot find the information, your attorney will be able to find the information for you in the discovery process.  However, doing the preliminary investigative work yourself may save you some attorney fees.

Retirement accounts are protected by federal law and, therefore, there are specific and detailed laws regarding withdrawals and other changes to these types of accounts.  When a retirement account must be divided between two spouses incident to a divorce, the mechanism used is a Qualified Domestic Relations Order, commonly called a QDRO (pronounced Quad-ro or Cu-dro). This order directs the administrator of the plan how to divide these assets without incurring penalties or taxes for early withdrawal.

When deciding how to divide retirement plans, consider the following:

1. Which spouse will be responsible for the drafting of the QDRO, and who will pay the fees for that document?

2. Do you even need a QDRO or is there a less expensive way to accomplish the division?  Usually for an IRA, you simply need to send a letter of instruction, along with the divorce decree, to the plan administrator.

3. What is the date of division?  In your divorce agreement, make sure that you agree, or a court orders, a specific date as of which the assets will be divided.

4. What happens to gains and losses?  Any type of investment account is dynamic and subject to the whims of the market.  Make sure your QDRO includes directions as to how both gains and losses will be calculated and divided between the parties.

For more general information on QDROs, check out the FAQ Section on the U.S. Department of Labor website.