Thursday, October 08, 2015

Separation and the Elective Share in Pennsylvania

Separated spouses, who have not yet obtained grounds for divorce, might still be able to inherit from each other if one dies while the divorce is pending.

Under Pennsylvania law, as well as many other states, a surviving spouse is entitled to an “Elective Share” of the deceased spouse’s estate, even if the surviving spouse is intentionally excluded from the deceased spouse’s will. The laws came about to protect spouses from being completely cut out of their spouse’s will, and left destitute.

In most states, the Elective Share consists of 1/3 of the deceased spouse’s estate. However, difficulty arises in determining which assets count as part of the deceased spouse’s estate. Originally, the Elective Share only applied to assets that were passed to others under the deceased spouse’s will. This rule has been modified in most states because clever attorneys and spouses were able to divert assets into particular accounts that were not inherited under the deceased spouse’s will, such as trusts, payable on death accounts, accounts owned jointly with another party, and accounts designating a beneficiary. Diverting these assets prevented the surviving spouse from inheriting anything significant, under the elective share. 

As a result, Pennsylvania, as well as many other states, has established a detailed statutory scheme dictating which assets are subject to an Elective Share, to prevent the deceased from creatively interfering with the surviving spouse’s inheritance rights.

In In Re: Estate of Harold E. Rood, 2015 Pa. Super. 180 (2014), the deceased Husband owned two Vanguard investment accounts, on which he had designated his two children from a previous marriage as beneficiaries. Husband’s Will excluded his Wife of twenty-seven years, and left all of his estate to the same two children.

After Husband’s death, Wife filed with the Court to claim her Elective Share. Wife asserted that the Vanguard accounts should be included in determination of her inheritance, but, of course, the Husband’s children from his previous marriage asserted that the Vanguard accounts should not be available to Wife.

The Pennsylvania Superior Court held that the Vanguard accounts were includable in determining Wife’s elective share, even though Husband had designated his children as the beneficiaries on both accounts. The Court found that the accounts were available to Wife under the statute because, while Husband chose to convey an interest in the accounts to his children during his life, he retained complete control of the accounts, including the ability to change any beneficiary designations, at the time of his death.

When separating from your spouse, you should consider changing the beneficiary designations on all of your financial accounts. Consult your attorney because you may be prohibited from changing beneficiaries during divorce litigation.  For some accounts, you might need your spouse’s written permission.  

The right to claim an elective share terminates when Grounds for Divorce are established in a pending divorce action, in accordance with 20 P.S. §2203(c). However, this right can also be terminated by contract, through a prenuptial or postnuptial agreement. 

In the emotional turmoil of a separation or pending divorce, it can be easy to forget about the future. What may not seem like a priority today may come back to haunt you tomorrow. 

Understand that you may not be able to convince your spouse to sign a post-nuptial agreement or waive inheritance rights. If you have children from a previous relationship, understand that marriage and inheritance laws prefer spouses over children. Obtaining an enforceable pre-nuptial agreement can protect your children.

Jill Fitzgerald, Third Year Law Student at Drexel University Thomas R. Kline School of Law, drafted this post.  Edited by Linda A. Kerns, Esquire.

Tuesday, October 06, 2015

DeVita Today: New Jersey Restrictions on Introducing Children to New Parental Dating Partners

In most cases, former spouses or partners date someone new.  Disputes, ill feelings and tension can arise over deciding when or whether the children should be introduced to a parent’s new dating partner. 

Under New Jersey law, the parties may agree to restrictions on introducing the children to the parents’ new romantic partners, or one parent may petition the Court for such restrictions. These restrictions first became enforceable under the 1976 case of DeVita v. DeVita, 145 N.J. Super 120 (App. Div. 1976), and are commonly referred to as “DeVita Restrictions.”

Not all DeVita Restrictions are automatically enforceable, however. DeVita, and subsequent cases interpreting DeVita, have held that the Court should exercise considerable discretion in deciding whether or not to enforce DeVita Restrictions. 

In the original DeVita case, the Court granted an Order restricting Father from having his girlfriend sleep over at his house when he had custody of the parties’ children. Interestingly, the reasoning in the DeVita case was based primarily on the “moral welfare” of the children, with the Court noting Mother’s concerns about Father’s girlfriend sleeping over were “not contrary to those of a substantial body of the community.” In other words, at the time, society generally found unmarried sleep-overs unacceptable.

Clearly, times have changed since 1976. In a recent unreported New Jersey decision, Mantle v. Mantle, Docket No. FM-15-656-15 (March 9, 2015), the Court examined DeVita Restrictions in a modern-day situation. The Mantle case involved two parties who had agreed, as part of their marital settlement agreement, not to introduce their children to any new romantic dating partners. One parent then sought to enforce the restrictions when the other introduced the children to a new romantic partner. While the Mantle case is not binding law, it provides some insight into how other New Jersey Courts might address DeVita Restrictions today.

The Court in Mantle begins it’s discussion of DeVita Restrictions by noting that “[s]ociologically speaking, 1976 was a million years ago,” and questioning whether the prevalence of cohabiting among all kinds of couples rendered the DeVita decision inapplicable. However, the Court in Mantle did hold that a Court may still grant or enforce DeVita restrictions where the facts warrant that there is a “very sound reason to grant temporary restraints against introducing a child to new parental boyfriends or girlfriends, or in having new dating partners stay overnight in a child’s presence.”

The Court emphasized that, in some situations, particularly where the children are young, or the parties have only recently separated, temporary DeVita restrictions may be in the children’s best interests. Children may be confused, or unable to cope emotionally, with the introduction of a new adult figure in their lives during the family turmoil immediately following their parents’ separation. However, the Court noted that blanket restrictions that prevent ever introducing a new romantic partner to the children are generally not enforceable.

The Court noted that a factual evaluation should be conducted by the Court when evaluating DeVita Restrictions. The Court must balance the interests of both parties, with the primary focus on the welfare of the child. The Mantle Court suggested that Judges conducting this evaluation look at six specific factors:

1. How long have the parties been living separately?

2. How old is the child at issue?

3. How long have the parent and the new romantic partner been dating?

4. Is the new romantic partner already known to the child?

5. Has the child previously been introduced to other dating partners of either party?

6. Does the child have a previously specified diagnosis of a psychiatric, psychological or emotional nature which may require special consideration and attention under the circumstances of the case?

Additionally, the Mantle Court held that restrictions arising from the specific objectionable conduct of a specific romantic partner should be evaluated more carefully than general, blanket restrictions that related to all future romantic partners.

Even where the Court finds that DeVita Restrictions are appropriate, these restrictions will likely be temporary, and will probably set up a transition period for introduction to new parental dating partners.

In the Mantle case, for example, the parties were the parents of a six year-old child and had been separated for only five months. The Court placed significant weight on the age of the child and the length of separation. The Court held that the blanket restriction was not enforceable, and created a transitional plan to be instituted over the next year.

New Jersey litigants should remember that the Mantle case is not binding law. However, due to the limited number of opinions addressing DeVita Restrictions, this case provides significant insight into how Courts might address DeVita Restrictions today. If you are trying to enforce agreed-to restrictions, or are petitioning the Court to restrict conduct, you should consider the above factors when shaping your argument.

Rate your marriage?!?

The Wall Street Journal features a "Rate your Marriage" test.  Are you game?

Friday, September 25, 2015

Buyer Beware: A Frightening E-Mail Real Estate Scam

The National Association of Realtors recently released a fraud warning about a frightening new e-mail scam targeting the real estate industry.

In this scam, the perpetrators access their victims’ e-mail messages, specifically those sent while the victim is using a free Wi-Fi hotspot or unsecured e-mail account. Many of the perpetrators specifically target people in the real estate industry, such as realtors and attorneys. 

After invading an e-mail account, the perpetrators will watch for e-mail correspondence regarding a pending sale. When the buyer is about to wire money to the seller, usually for the down payment, the scammer creates an e-mail address that strongly resembles that of someone else in the conversation, usually one of the realtors or attorneys.

At the last minute, the buyer will receive an e-mail telling him or her that the routing numbers for the transaction have changed, and the money should now be wired to a new number. Of course, when the buyer wires the money in accordance with the e-mail’s instructions, the money goes to a scammer’s account, where it is quickly withdrawn. Most victims never see their money again. The National Association of Realtors reported that scammed amounts range from payments of $10,000 to half a million dollars. Any real estate purchaser could become a target.

You can protect yourself with a few simple steps. Never trust real estate payment instructions that you receive by e-mail. Always contact your realtor, the seller’s realtor, the title company, or your attorney to confirm any wiring numbers before completing the transaction. Further, make sure you use the correct contact information– many scammers will include a fraudulent telephone number in their e-mail message.

In a recent Chicago case, the perpetrators acquired an e-mail address that closely resembled that of the buyer’s attorney. Unfortunately, the buyer fell for the fake instructions and wired more than $800,000 to the perpetrators. Shortly afterward, the buyer realized her mistake and panicked. Fortunately, her bank was able to freeze the transfer before it was completed.

Many of the scammers involved in this scheme are from other countries. In the Chicago case, the victim’s technologically savvy boyfriend was able to trace the fraudulent e-mail to the Czech Republic.  Buyers should also know that the words “Swift Wire” somewhere in your wire transfer order or receipt indicate your money is being sent to another country.

If you do fall for a scam like this, call your bank as soon as you realize your mistake–they may be able to freeze the transfer before any real harm is done.

Jill Fitzgerald, Third Year Law Student at Drexel University Thomas R. Kline School of Law, drafted this post.  Edited by Linda A. Kerns, Esquire.

Tuesday, September 22, 2015

Can I just pick up and move away with my children?

As of 2011, Pennsylvania law requires courts to consider 16 specific factors when deciding on a child custody case. If one of the parents wishes to relocate, that is move residences such that the move is far enough away that it will interfere with the other parent’s right to custody, then the court must consider an additional 10 factors.

Relocation cases tend to be the most difficult for a court as, no matter what, the child will lose time with the other parent. Recently, the Superior Court of Pennsylvania affirmed a relocation case out of Susquehanna County, K.A.N. v. J.A.N., wherein the court granted the mother the right to relocate to Virginia with the parties’ child. Father opposed the relocation but the court ultimately found for mother. The case includes an outline of the factors in the custody statute and the court’s analysis. You can read the opinion here. If you are considering relocation, these types of cases are well worth the read so that you can begin to gather evidence that you feel will help your own case.

Custody Relocation in Pennsylvania is Subject to Strict Laws

Tuesday, September 01, 2015

Must the School District provide school bus transportation from both Mom AND Dad's house in a split custody situation?

The Pennsylvania Supreme Court answers: Yes, in narrow circumstances.
Image result for yellow school bus images

In the case of Watts v. Manheim Township School District, the parents shared equal custody of their son on a week on/week off basis.  Both parents lived in the same School District.  The District originally provided a bus stop at Dad's house on his weeks and a bus stop at Mom's house on her weeks.  Because the parents shared custody, the child had two legal residences.

The School District went through some financial cutbacks, eliminating some bus routes altogether (so those students had to walk to school) and ending the practice of different bus stops depending on custody arrangements.  Dad then had to drive his son to Mom's bus stop during his custody weeks, as Mom's address was listed on the school forms.  Dad protested and eventually sued.  The case wound its way to the Pennsylvania Supreme Court who sided with Dad.

Notably, the decision here is limited to the facts of this particular case.  Mom and Dad lived very close together, in the same School District.  They alternate custody each week so one week, the child is at one bus stop, and the next week he is at another bus stop.  The decision here would not apply to other circumstances.

If you divide custody time, check into the policies of your school district before agreeing on a custody arrangement.  For the child's sake, it may be better to simply drive him or her to the one bus stop - for consistency.  How your child will get to school should be an important consideration when negotiating any custody arrangement.

Monday, August 10, 2015

Expungement Law in New Jersey

The New Jersey Supreme Court just issued an opinion interpreting the law on expungement of crimes in the Garden State.  Read the opinion here:  In the Matter of the Expungement Petition of J.S.

Friday, July 17, 2015

Don’t Count Your Chickens: Why Mediation Agreements May Not Be Binding

In the state of New Jersey, the Court can order parties to attend mediation any time after the filing of the Divorce Complaint. Mediation is an opportunity for the parties to “talk it out” with the help of a neutral third party. Mediators cannot make binding decisions, but they can broker an agreement between the parties. If an agreement is reached, it can be reduced to writing, signed by both parties, and, in some cases, entered with the Court.

Signed mediation agreements are enforceable in the same manner as any other written agreement between the parties. However, in many cases, at least one of the required steps does not occur. Often, the parties are unable to reach an agreement, even with the help of the mediator. In some cases, the agreement is reduced to writing, but is not signed by the parties. In this situation, the non-consenting party may be able to back out of the agreement.

Unsigned agreements resulting from mediation are usually not enforceable. A New Jersey statute attaches a “privilege” to mediation discussions, which means one party cannot disclose what happened at mediation without the other party’s consent. Because of the mediation privilege, the party seeking enforcement cannot disclose the content or circumstances of the mediation agreement in litigation.

Mediation privilege can be waived by the parties. Generally, if one party introduces privileged information, and the other party does not object, the privilege is waived. A party usually cannot object to a violation of the mediation privilege if that party has also introduced privileged information.

A recent unreported Appellate Court decision, Campbell v. Campbell, A-3113-13T2 (Decided July 2, 2015) allowed the enforcement of an unsigned mediation agreement where the parties had reached an agreement at mediation but opted to show the agreement to their lawyers before signing. One party then contested many material terms of the agreement. The other party requested that the terms of the mediation agreement be incorporated into the divorce decree.

The Appellate Court upheld the trial court’s decision to incorporate the terms of the mediation agreement because the parties had waived the mediation privilege through their actions and the terms of the agreement were clearly established before the Trial Court. The Appellate Court also placed emphasis on the fact that the parties had informed the Court at the time of the mediation agreement that the case had been settled.

Litigants should be aware that a subsequent Supreme Court Decision essentially renders this case irrelevant. In Willingboro Mall v. Franklin, 71 A.3d 888 (2013), the New Jersey Supreme Court explicitly stated that “going forward, parties that intend to enforce a settlement reached at mediation must execute a signed written agreement.” The Court only allowed enforcement of the mediation agreement because the agreement in Campbell was made in December of 2012, several months before Willingboro was decided, even though the Campbell appeal didn’t reach the Appellate Division until long after Willingboro.

Mediation can help some parties reach an agreement and minimize litigation costs, but litigants should be aware that unsigned mediation agreements are not enforceable. If a mediation agreement is reached, be sure to sign the agreement - and have the other party sign- before leaving the mediation session. Otherwise, you will be back where you started, but with added mediation costs and the continued burden of litigation.

This blog was written by Jill Fitzgerald, third year law student at Drexel University Thomas R. Kline School of Law and edited by Linda A. Kerns, Esquire.

Wednesday, July 15, 2015

Child Support Modification: Does it really pay off?

In the State of New Jersey, children are presumed to be emancipated when they reach the age of eighteen. When a child turns eighteen, an obligated parent can petition the Court for a modification of child support, to reflect the fact that the parent believes a child should no longer receive support. Litigants beware: circumstances may rebut a presumption of emancipation, and filing for modification of child support could even do more harm than good.

The presumption that a child is emancipated upon his or her eighteenth birthday can be rebutted by showing that the “fundamental dependent relationship between parent and child” has not yet ended. Dolce v. Dolce 383 N.J. Super. 11 (App. Div. 2006). This may happen if the child still resides with the primary custodial parent, or the child depends on the parents for continuing financial support while attending college. Please note that the New Jersey law differs from the Pennsylvania law on this issue, so make sure you know your jurisdiction.

In a recent unreported decision, Cosco v. Cosco, Appellate Division, A-2709-13T1 (Decided July 2, 2015), the Trial Court found that neither of the parties’ children were emancipated where one was over eighteen and attending college, and one had just turned eighteen and was a high school senior. The Appellate Court affirmed this decision.

While this is a non-precedential decision and is not binding on lower courts to follow, these types of decisions provide some insight into the way Courts might analyze this issues. Before filing for modification of child support on your child’s eighteenth birthday, consider all the facts and circumstances. You may save yourself significant frustration and litigation costs by analyzing your case and making sure both the facts and law are on your side.

The Plaintiff in Cosco also harmed his case by failing to enclose complete financial information. The Plaintiff owned a lawn care business, and enclosed two partial tax returns, but did not complete the income section of his Case Information statement, which is required with all custody petitions. During the case, the Plaintiff alleged that his decreased income and increased family obligations (two other children with his new Wife) should warrant, at the least, a lower child support award. However, because the Plaintiff was not completely forthright about his income, the Court could not determine whether his income had changed enough to warrant a lower child support obligation.

To make a bad situation worse, the Court further ordered the Plaintiff to pay the Defendant’s attorney’s fees because the Court found Defendant’s Petition to Modify to be in bad faith, due to his failure to file complete financial information.

The message to litigants is this: that petition to modify child support may be more costly than you think. Consider the circumstances surrounding your children before you assert that one of them is emancipated. Then be sure to attach complete financial information to your petition and do not try to conceal your income from the Court. This kind of litigation can be more expensive than a few more months of child support. Additionally, in cases with two or more children, emancipating one child does not mean you will cut your child support in half. Rather, the Court will calculate a new support award based on the current income/earning capacities of the parents and the Child Support Guidelines.

This blog was written by Jill Fitzgerald, third year law student at Drexel University Thomas R. Kline School of Law and edited by Linda A. Kerns, Esquire.

Wednesday, July 08, 2015

Texting Wars: Frustration or Domestic Violence?

Warning: couples tend to engage in texting “wars.” Separation, especially when coupled with divorce or custody litigation, often brings out the worst in people, and it is normal to become angry or frustrated with the other party. Your choice words, preserved in a text, may come back to haunt you.

Some states, including New Jersey, have passed anti-harassment laws, which are aimed at preventing non-physical acts of domestic violence. Generally, the grant of a Protection from Abuse order (PA) or a Final Restraining Order (NJ) requires proof of physical danger posed by the party against whom the order is sought. In the past, it was nearly impossible to get a Protection from Abuse Order or a Final Restraining Order without evidence of physical violence or threat of physical violence.

The New Jersey harassment laws allow the grant of a Final Restraining Order where it is proved that the Defendant committed a particular act with intent to harass the Plaintiff. These acts include communication that “occurs at extremely inconvenient hours,” with “offensively course language,” or “in any manner likely to cause annoyance or alarm.” The statute also includes a more classic provision for “striking, kicking, shoving, or other offensive touching” and a blanket provision for “any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy another person.” N.J.S.A. 2C: 33-4.

Litigants seeking to obtain a Final Restraining Order under this statute should keep in mind that they must prove not only one of the acts listed in the statute, but also that the act was performed with the intent to harass.

Litigants should be aware of this intent requirement because proving intent is a tricky thing. What were you actually thinking when you sent those angry texts to your ex? No doubt you were angry and frustrated. But were you trying to annoy or alarm the other person? Maybe you were. Maybe you were not. Ultimately, the Court cannot get inside your head, but must reach a decision anyway, using the surrounding circumstances to ascertain intent. While the statute is supposed to distinguish between “ordinary disputes and disagreements between persons in a past or current domestic relationship and those acts that cross the line into domestic violence,” the result reached by the Court does not always reflect the Defendant’s view of the situation.

One such incident occurred in the recently released New Jersey decision, S.P. v. W.P., Docket No. A-4888-13T4, decided June 9, 2015. In S.P. v. W.P., the Wife filed for a Restraining Order against her Husband under the New Jersey harassment statute after he sent her a series of angry text messages following their separation.

One evening, the Husband returned home to find that the Wife had left, changed the locks on the house, taken the children with her, and deposited Husband’s belongings outside the house. Husband was, understandably, furious. He proceeded to send Wife a series of text messages, laden with expletives, threatening to cut off her financial support and demanding to see the children.

Wife filed a Temporary Restraining Order against Husband under the harassment statute. At the hearing, the Trial Court initially found that Husband’s text messages were not intended to harass Wife. Rather, they were motivated by Husband’s concern for his children.

However, in an error of procedure, the Trial Court allowed Wife’s counsel to essentially argue a motion for reconsideration before reaching a final decision. Wife’s counsel then brought up a domestic violence incident that occurred ten years prior, and testified that Husband was an alcoholic and she was afraid of him. At the end of the hearing, the Trial Court granted Wife’s Final Restraining Order.

While the Appellate Court eventually overturned the Trial Court’s ruling due to numerous evidentiary and procedural issues, Husband was likely prevented from seeing his children during the course of the litigation, and no doubt incurred significant legal fees.

It is very common in divorce litigation for separating spouses to unleash angry accusations against each other. Some couples even fabricate complaints, in an effort to gain an edge in litigation. Domestic Violence is a serious issue, and legislatures have tried to address it by making it easier for abused parties to obtain restraining orders. Unfortunately, this opens the door for abuse of the statute as well. You can protect yourself from some of these accusations by controlling your own behavior. Civility, even when you are angry and frustrated, can go a long way toward bolstering your own case, and protecting your own interests.

This blog was written by Jill Fitzgerald, third year law student at Drexel University Thomas R. Kline School of Law and edited by Linda A. Kerns, Esquire.

Monday, July 06, 2015

Support Deviation Factors Explained: Other Household Income

Under Pennsylvania Law, child support and alimony pendente lite/spousal support awards are determined by a statutory formula. Using each party’s income or earning capacity, along with other relevant factors (such as number of children and number of custody days) the child support guidelines determine the support award.

There is a presumption that the amount determined by the formula is correct. However, utilizing incorrect data will result in an incorrect support number. Sometimes the Court incorrectly determines a party’s income, usually when the party is self-employed, or when the party is not presently working but has the ability to work. Sometimes the formula is just not designed to account for the extraneous circumstances that can affect the parties’ actual financial situation.

In Pennsylvania, “deviation factors” are written into the statute to account for these situations. Pennsylvania Rule of Civil Procedure 1910.16-(b) explicitly lists nine “deviation factors,” or special circumstances, that allow the Court to modify the formula amount to more accurately reflect the parties’ financial situation.

Perhaps the most misunderstood deviation factor is the one that allows for consideration of “other household income.” Under this factor, the payor may argue that someone in the recipient’s household earns so much income that the recipient does not need support, and may therefore deserve a lower support award. Alternatively, the recipient may argue that someone in the payor’s household earns so much money that the payor does not need his income to support himself, and therefore more income is available to pay a higher support award.

The “other household income” factor is often argued but rarely successful. The Court only deviates on this factor where there is a significant difference in income created by the other members of the household. Litigants often do not understand the definition of a “significant difference” in this context. One example of a successful deviation argument can be found in the recent Superior Court decision J.P.D. v. W.E.D., 2015 Pa. Super 108.

In J.P.D. v. W.E.D., the Husband and Wife both earned about $45,000 per year. Wife had primary custody of the children, and Husband paid child support to Wife. However, Husband had recently re-married to a woman who earned approximately $1 million each year. At the hearing, Husband testified that he did not contribute to any of the household expenses. Husband further testified that he did not even know what the household expenses were because his new Wife handled all of the finances.

In this case, the Court allowed an upward deviation of child support against Husband because it found that Husband’s ability to pay was significantly more than accounted for in the statutory formula. The formula anticipates that both parties will need to use a significant amount of their income for self-support. The Court found that simply wasn’t true for the Husband in this case.

Upward deviations on account of “other household income” generally are not exercised unless there is a very large gap between the party’s yearly income and the total household income. Even when there is significant income disparity, the Court can only deviate where evidence is presented to prove the disparity at the hearing.

In the case of J.P.D. v. W.E.D., Husband’s testimony that he did not contribute to household expenses and did not even know what they were was sufficient to prove that all of Husband’s income was available for an increased support award. If evidence had not been presented on this topic, the Court could not have considered deviating from the guidelines, no matter how much additional income Husband’s new Wife contributed.

If you decide to argue a deviation factor in a support hearing, always remember that you have to prove the circumstances of that factor. You must provide sufficient evidence in the form of documents and testimony, or the Court cannot even consider deviating. Additionally, the difference in income available in the household must be extreme, as it was in this case. Generally speaking, Courts tend to exhibit reluctance in applying any deviation factor and the presumption that the support guideline number is correct remains strong.

Saturday, July 04, 2015

Happy Birthday America!

Happy Birthday to the United States of America!

Friday, June 12, 2015

Social Media Rants: Could Venting Your Frustration Land You In Prison?

Domestic Relations litigation stirs up a lot of feelings: stress, anger, and frustration are among them. Under the pressure of a bitter divorce or contested custody matter, parties may feel the need to vent. The prevalence of social media makes it even easier to publicly “say” something you will regret. Venting your feelings on social media is almost never good for your divorce or custody litigation, and most lawyers remind their clients to be careful about their social media presence during litigation. However, few people realize that extreme social media rants may have serious, even criminal, consequences.

The law surrounding social media is still developing. Parties should be aware of the federal statute 18 U.S.C. §875(c), which makes it a crime to “transmit in interstate commerce” (ie: via the internet) “any communication containing any injure the person of another.” The United States Supreme Court recently tried to clarify the meaning of this law in the case Elonis v. United States, (published June 1, 2015).

In Elonis, an angry Husband posted imitation “rap lyrics” to his Facebook page following his separation with his wife. The “lyrics” explicitly described how someone might best try to kill his wife: by firing a mortar launcher at her house from an adjoining field and escaping on an access road. Further “lyrics” included phrases such as “Fold up your [protection-from-abuse order] and put it in your pocket, is it thick enough to stop a bullet?” and “If worse comes to worse, I’ve got enough explosives to take care of the State Police and the Sheriff’s Department.”

Elonis interspersed the “lyrics” with notes that they were not intended to be about real people, and that he was exercising his first amendment rights. Elonis later argued that his “lyrics” were meant to imitate those of rappers such as Eminem, whose lyrics describe his fantasies about killing his ex-wife. Elonis was indicted under 18 U.S.C. §875(c).

The main issue in Elonis was the level of culpability Elonis needed to be found guilty. The statute criminalizing threats did not specify the intent necessary. The majority of the U.S. Appellate Courts had held that a standard of “negligence” was necessary to convict Elonis. Use of the “negligence” standard means that Elonis would be guilty if he “should [have] be[en] aware of the substantial and unjustifiable risk” that his posts would be interpreted as true threats to harm others. The Supreme Court, however, ruled that “negligence” was not enough.

In deciding Elonis, the Supreme Court ruled that when a statute is ambiguous, the level of intent required to convict is “only that [intent] necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” In Elonis, the Court decided that the “negligence” standard did not sufficiently separate true threats from harmless Facebook rants. However, the Supreme Court declined to decide what level of intent would be necessary to convict someone under this statute.

For now, what this decision means is that U.S. Appellate Courts are free to decide what the appropriate level of culpability is for conviction under 18 U.S.C. §875(c). As Justice Alito’s concurrence argues, the Appellate Courts’ previous willingness to convict under the “negligence” standard, and the Supreme Court’s prior decisions on other ambiguous statutes strongly favor conviction under a “recklessness” standard.

Adopting the “recklessness” standard would mean a person may be convicted under 18 U.S.C. §875(c) where he knows there is a substantial risk that others will perceive his posts as threats, and he disregards that risk, and publishes the posts in spite of that risk. If the “recklessness” standard is later adopted, Courts will also have to consider whether the application of this law violates the First Amendment right to free speech. However, because “true threats” are not protected by a First Amendment, Justice Alito’s concurrence argues that a statement that was threatening enough to warrant a conviction under 18 U.S.C. §875(c) would probably not be protected by the First Amendment.  

Social Media law is still developing, and no one can be certain of how the courts will handle this issue in the future. For now, the common sense takeaway from this Supreme Court decision is “think before you post.” Social Media postings can have serious consequences, both on your current litigation, and on your freedom. Ultimately, the Supreme Court overturned the conviction in Elonis, so some may say he “got away with it.” However, Elonis lost his job and any chance of a civil relationship with his ex-wife. The U.S. Supreme Court case was the culmination of almost five years of expensive, time consuming, stressful, and bitter litigation. The Supreme Court’s decision cannot give Elonis back the last five years of his life.

Before you write that Facebook rant, remind yourself what could be at stake.  Then find a counselor, or your private journal, and express your feelings through those mediums instead.

This blog was written by Jill Fitzgerald, third year law student at Drexel University Thomas R. Kline School of Law and edited by Linda A. Kerns, Esquire.

Wednesday, June 10, 2015

Mental Health as a Factor in Custody Litigation

Custody litigation becomes more complicated when one or both parents experience mental health problems. Unfortunately, according to the National Institute of Mental Health , approximately 28% of Americans suffer from some mental illness, with about 4% of those people battling a serious mental illness. While most feuding parents accuse each other of faults, including mental health issues, truly impaired parents cannot effectively parent or even fully participate in the court process.

Where one parent suffers from a mental illness, Pennsylvania Courts must still perform an extensive factual analysis of the factors enumerated in the Pennsylvania custody statute. In evaluating these factors, the Court must, as always, focus on the best interests of the child. The mental health of a parent may affect the determination when that parent’s behavior is viewed in light of the custody factors. One example of this is the case of C.S. v. T.S. (No. 1700 WDA 2014), recently decided by the Superior Court of Pennsylvania. While this is a non-precedential decision, which means it is not binding on any Court, the Superior Court’s opinion provides some insight into the way the court may address mental health issues in child custody litigation. It also contains a comprehensive review of the factors in the custody statute.

In C.S. v. T.S., the Court addressed the Mother’s appeal from a custody order denying a petition for shared custody of the children where the current arrangement granted Father primary custody and Mother partial custody. In this case, Mother suffered from a mental illness.

While evaluating the custody factors, the Trial Court placed special emphasis on Mother’s in-court and out-of-court behavior during the litigation. The Trial Court especially noted Mother’s tendency to show up at Father’s house, uninvited and unannounced to see the children off to school or question the competency of Father’s babysitters. The Court agreed with Father that these incidents emphasized Mother’s poor decision-making capabilities and lack of regard for the stability of the Children’s lives.

The Court further noted that during her testimony, Mother had difficulty staying focused and displayed no respect for Father. Perhaps most importantly, the Court noted that Mother’s gas had been turned off for almost a year due to nonpayment.

Throughout this case, Trial Court and the Appellate Court stressed the importance of a stable environment for the children to live in. The evidence demonstrated that Father’s home was more stable, and that increased time with Mother would jeopardize that stability.

While the Court recognized that Mother had good intentions, it was concerned by the “harsh reality of her own behavior” even though the Court recognized “she ha[d] very little control over it due to her mental health issues.”

When the mental health of a party is a factor in custody litigation, parties must remember that Judges are required to consider the custody factors, and evidence of erratic or unstable behaviors may significantly influence the judge’s decision. Parties must be careful to understand that even if the other parent acts unreasonably or irrationally, whether or not due to mental illness, the other parent must still cooperate and navigate the needs of the children as well as the relationship with the other parent. Although frustrating, Courts will still expect some degree of co-parenting and cooperation.

Additionally, accusation of mental health defects in bitter custody disputes tend to be common.  In disputed custody cases, virtually all parents accuse the other party of having mental health problems.  Actual, mental health disease with demonstrated adverse effects on the children are different then generalized, "the other party has a problem" allegations.  Litigants, when presenting their case, should focus on the facts (examples of the other parent’s behavior) rather than the conclusion (simply accusing the other parent of having mental health issues). Let the Court draw conclusions from the evidence you present.

This blog was written by Jill Fitzgerald, a third year law student at Drexel University Thomas R. Kline School of Law.  Edited by Linda A. Kerns, Esquire.

Wednesday, June 03, 2015

How does the court in Pennsylvania assess earning capacity for support?

Courts in Pennsylvania calculate support based on the payor's actual earnings and earning capacity, if the court believes the payor is not earning up to his potential.  Being assessed a support number based on earning capacity can be devastating to the payor --- if you are not actually earning the number on which your support order is based, you can end up owing much more than you believe you can afford.  However, under the law, the court has a right to assess an earning capacity.

Recently, the Superior Court of Pennsylvania addressed an earning capacity issue -- and set the Father's earning capacity at $91,000 per year even though he testified he was earning only $58,841.38 per year plus an $8,000.00 bonus.  The court based its order on Father's prior earnings as well as his experience.  You can read the full opinion here which offers a detailed explanation of how the court calculated the earning capacity.

Earning capacity cases require detailed preparation and a thorough review of the available evidence. The trial court has discretion in determining earning capacity and litigants must present comprehensive and specific evidence to support their case.