Thursday, October 30, 2014

I’m thinking about a prenuptial agreement, what should I know?

In New Jersey, like many states, there are strict guidelines that must be followed in order for a prenuptial agreement to be upheld.  In a recent, non-precedential case, Guido v. Guido, the New Jersey Superior Court thoroughly examined the standards for a prenuptial agreement and when one will be upheld.

In that case, the parties signed a prenuptial agreement nine days prior to their wedding after negotiations occurred between their attorneys and the parties had exchanged financial disclosures.  Husband came from a wealthy family and was a recent law school graduate, and at the date of marriage, he already had a sizeable net worth.  In contrast, Wife came from a more modest background, and had no significant assets.  The prenuptial agreement was highly specific regarding what Wife would receive in the case of divorce.  Twenty years later, when the parties decided to divorce, Husband’s net worth was worth millions of dollars and Wife was set to receive a small fraction of the assets.  Wife decided to challenge the validity of the prenuptial agreement, and argued that she did not receive full disclosure, that it was signed under pressure too close to the date of the wedding and that her lifestyle after the divorce would change too much.

In short, the court upheld the parties’ prenuptial agreement after a thorough analysis of New Jersey’s statute regarding prenuptial agreements.  The court emphasized that despite the fact that contracting in the context of a family seems contrary to public policy, in the case of prenuptial agreements, there is a strong, established public policy for upholding prenuptial agreements unless they are unconscionable.  In other words, if the parties exchange full and fair financial disclosures, the parties voluntarily and expressly waive their right to additional disclosures, and attorneys assist in the preparation and review of the agreement, then very often, after a full review of the facts and circumstances, the court will uphold the agreement.

If you are considering a prenuptial agreement in New Jersey,  I suggest briefly reviewing this case, because it does a nice job of explaining prenuptial agreements and provides helpful examples throughout.  More importantly, you should meet with an attorney.  It is absolutely vital that an attorney be involved in the process in order to meet the standards required to uphold the prenuptial agreement if it is ever challenged.  Both parties want to make sure that the agreement will adequately protect their interests, no matter what the future may hold.

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

Monday, October 27, 2014

Reassessing your budget during and after a divorce

Heading into a divorce, all people know that it is going to be difficult and emotional.  Most people also know that legal fees for attorneys and costs for court filings, copying and mailing can be expensive, especially if litigation becomes drawn out and contentious.  What a lot of people do not stop to think about is the financial impact that a divorce will have on their daily living expenses both during and after a divorce.

For example, a family of four may pay $1,500.00 to $3,000.00 per month for rent or a mortgage on a small three bedroom home.  Additionally, they are going to pay for utilities for that one home, and for insurance policies on the two cars that they own.  That’s not to mention all the other monthly bills that must be paid, such as school tuition, daycare costs, groceries, gas, haircuts, clothing, and the list goes on and on.  Perhaps the parents have decided that one parent will stay-at-home, instead of working, so that, in part, they do not have to pay child care costs.  Each month, they might have a little bit left over to put into savings, but on months that an unexpected expense, like a new transmission, arise, they might dip into savings.

Now, if those parents decide to divorce, they transition from a one household family to a two household family.  Suddenly, each party is paying for housing and related costs, rather than only one.  Although it might be possible for the children to share a room so that each parent can rent a two bedroom home instead of a three bedroom home, it is highly unlikely that each parent will find a suitable home for less than or equal to what they paid for one home.  That means that in total, they will be spending more than their prior monthly allotment for housing.  Then, they likely will have to double their utility expenses to account for paying for utilities for two houses.  Likewise, food and household expenses will increase.  All of the sudden, they went from being able to save a little bit of money most months to the stay-at-home parent needing to find employment.  Depending on how long the stay-at-home parent has been out of the workplace and his or her level of education, this may be easier said than done.

Therefore, it is imperative for divorcing parties, especially parents, to closely re-evaluate their budgets.  It is highly likely that a change in lifestyle will be required, at least for some period of time, until adjustments are made.  Unfortunately, most people view “budget” as a dirty word.  Budgets are difficult to create and even more difficult to follow.  However, forcing yourself to re-evaluate your budget likely will decrease your stress and help you assess with better clarity how you want to move forward with your divorce.  

Here are some tips for re-evaluating your budget:

1.  Identify what your monthly income actually is.  If you are not a W2 employee, make sure you are accounting for taking out taxes so that you are not left in a lurch at tax-time.

2.  If you are a stay-at-home parent, assess what you realistically think you could earn if you went back to work.  Remember, most courts will assess most people an earning capacity of approximately minimum wage or somewhere around $25,000 to $30,000 per year if they are capable of earning more than minimum wage.  If you think that you likely will need to return to the workplace, you should begin to apply for jobs immediately.  It can take a long time to find a job and the process is stressful.  Keep track of your applications and follow-up.  If you begin the process before you are financially in dire-straights, then you will ease some of the pressure on yourself.

3.  Start to list each and every monthly expenses.  This means EVERYTHING.  Mortgage/rent, each utility, school or childcare costs, gas, tolls, parking, public transportation, lunches, entertainment, haircuts, gym memberships, vacations, etcetera, etcetera.  Keeping track of all of your expenditures for a couple months can help you with this process, especially if you are not accustomed to paying the monthly bills.

4.  After you have a comprehensive list of all of  your expenses, begin to organize them from top priority to low priority.  The top priority items should be non-negotiable living expenses - your mortgage, utilities, taxes, and the like.  The lowest priority items are wholly optional expenses - like trips to the movie theater.  Every person’s list will look different, because different expenses are more or less important to various individuals.  It does not matter what you list looks like; it simply matters that you make a list.

5.  Once your list is organized, begin with the low priority items, and try to identify expenses that you can totally eliminate, either permanently or temporarily.  Then work through the rest of your list and figure out whether there are other expenses that you can reduce.  For example, perhaps you get a basic cable package instead of the super deluxe package.  You could perhaps try to find a less expensive place to get your haircut, or stretch a bit longer between cuts.  Maybe you could try clipping coupons or at least shopping sale items.  Making coffee and your lunch at home can add up to a huge savings.  Sure there are some people who run on tight budgets and have no room to shave additional savings, but most individuals will be able to identify some areas to cut back.

6.  Next, implement your budget and keep track of your progress.  Be proud of yourself when you notice that you are saving money compared to your prior expenditures, but also do not beat yourself up if you have a bad day, week or month.  Sticking to a budget, like a diet or exercise regimen, is a daily choice.

7.  Do not point fingers at the other party.  Yes, ideally, both parties should be going through the same process of re-evaluating their budgets, but that does not always happen.  Instead of wagging your finger at your spouse and demanding that he fix his spending habits, concentrate on how you can improve your own financial well-being.  As we used to say when I rowed in college, “keep your eyes in the boat.”  In other words, concentrate on your performance rather than taking glances at the other people in the race.  At some point, although it may not feel like it now, your divorce will be finalized, and even if you receive some support from your spouse in the future, you will need to take ownership of your financial well-being.  The sooner you begin the process, the better off you will be.

8.  Last but not least, when calculating a final settlement, both spouse’s reasonable needs figure into an alimony calculation - both the ability to pay and the need to receive alimony.  Developing a budget will assist you in knowing your reasonable needs so that you can present the appropriate evidence when negotiating an overall settlement.

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

Thursday, October 23, 2014

I don’t like my custody order, can I change it?

In New Jersey, a custody order can only be modified when the petitioner can show a change in circumstance since the prior order was entered.  In a recent New Jersey Superior Court case, R.K. v. F.K., the Court clarified that there is a two-part process to modifying a custody order in New Jersey.

First, when a parent requests a modification of a custody order, the court must determine whether there has been a change in circumstances.  Once the parent who is requesting a modification of the custody order has demonstrated that there has been a change in circumstances, then the court will allow discovery and a trial to determine whether it is in the child’s best interests to modify the custody order.  In other words, if the court determines that there has been no change in circumstances, then the court will not even hear evidence on whether it is in the child’s best interests to modify custody.  But if there has been a change in circumstances, then the court will hold an entirely separate trial to determine the child’s best interests.  A change in circumstances alone is not enough for a court to modify a custody order.  The court must determine that it is actually in the child’s best interests to modify the order.

Both change in circumstances and best interests are important keys to modify a custody order, and without both present a New Jersey court will not modify a custody order.  New Jersey parents must remember this concept when they are in the middle of custody litigation or negotiations.  A parent simply cannot walk into court a couple weeks after a custody order has been entered, and request that the court change the custody order because they do not like it.  There must be an actual change in circumstances since the order has been entered.  This prevents people from simply re-litigating custody matters over and over, but it also means that parents must take very seriously the custody litigation or negotiations the first time.

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

Monday, October 20, 2014

I know my Ex’s password, can I use it?

In many marriages and relationships, spouses know each other’s passwords for email, social media websites and all sorts of other online accounts.  It is common for spouses to share online access to joint bank accounts and spouses may even share email accounts or other online accounts.  The open nature of sharing this information during a marriage or relationship often means that the spouses know the other person’s username and password information, even after the relationship ends.  

Even though spouses may freely share online password information and access during a marriage, a spouse’s ability to use that information ends when the relationship ends.  Courts throughout the country tend to be reviewing an ex-spouse’s use of the other person’s online username and password information under wiretapping laws, which are very specific and protect the privacy of the individual.  Recently, a New York court found that an ex-spouse had no right to continue reading the other person’s email after the relationship ended, even though he had permission during the marriage and had set up the account.  This unauthorized use subjected the ex-spouse to civil and criminal liability.

Therefore, even if you legitimately obtained your ex’s username and password during your relationship, you could be subject to civil and/or criminal repercussions if you use that information without your ex’s consent after the relationship has ended.  The thrill of peeping into someone else’s email or trying to gain information to provide an advantage in litigation is simply not worth the risk.  If you have specific questions, you should consult with an attorney.

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

Thursday, October 16, 2014

What is “earning capacity?”

At times, a parent will go to great lengths in order to try to pay less money in child and spousal support, even when it means that he or she will make less money for his or her own use.  Parties have quit jobs, retired early and hid income - all in an effort to reduce a support obligation to the spouse.  Other times, a parent simply has not been part of the workforce in many years, but is capable of working.

In Pennsylvania, our support laws anticipate that there are some individuals who are not earning as much as they could, which is why our laws allow us to assess an “earning capacity” to an individual.  If an individual does not make as much money as the other party believes that the individual should be making, then the court can consider whether to assess an earning capacity equal to a higher income to the party.  

There are many examples of when a court may assess a higher earning capacity.  If a party has been a stay-at-home parent in recent years, but has education, training and experience that would allow him to work, then the court may looked at that education, training and experience to determine how much the party could make if he went out and got a job.  A court may also assess an earning capacity if the party is earning wages significantly less than wages earned in the past, potentially due to a personal choice to take a different job or even if the party has lost his or her job and did not find a new job that paid as well.  If a party voluntarily retires early, the court may consider assigning a higher earning capacity.

Pennsylvania courts recently reviewed two different cases regarding earning capacity.  In the non-precedential case, Pikiewicz v. Timmers, the court examined Husband’s decreased earned income due to his voluntary retirement at the age of 44.  Husband argued that he was laid off and only his pension income should be used when calculating support.  The court determined, based on the evidence, that he voluntarily retired and he was not actually laid off, therefore, it was proper to assess him an earning capacity based on his prior earned income  The court highlighted Rule 1910.16-2(d)(4) of the Pennsylvania Rules of Civil Procedure, which discusses and defines reductions in income and earning capacity.  Additionally, the court noted that a voluntary reduction in income does not entitle a party to a reduction in a support obligation, but that the party does have the opportunity to “demonstrate a need” for a reduction.  In this particular case, the court found that Husband was not entitled to a reduction in his support obligation due a wide variety of facts.  Therefore, even though Husband was only receiving income from his pension, he was assessed a higher earning capacity based on his prior earned wages, and that higher number was used to calculate his child support obligation.

In another recent non-precedential Pennsylvania case, Skinner v. Skinner, the court reviewed Wife’s earning capacity for the purposes of calculating support.  In that case, at the time of the initial support litigation, Wife was working as a physician part-time and was the primary caretaker of the party’s kindergarten-aged child.  The court used her earned income from her part-time employment when calculating the child and spousal support due to her from Husband.  A few years later, the parties shared custody and Husband requested a reduction in child support.  He also argued that Wife should be assessed a higher earning capacity when calculating the support.  The trial court agreed and Husband’s support obligation was reduced.  The appellate court affirmed that, under the particular circumstances, a change in circumstances had occurred in part because the child was older and in school full-time and that Wife could be assessed a higher earning capacity that would better reflect what she would earn if she were to work full-time.  This case provides a nice overview of what a court will consider a “change in circumstance” and also reviews earning capacity.  

These cases are “non-precedential,” which means that they cannot be cited as governing law.  However, non-precedential cases still provide guidance into the court’s thinking.  The lesson to be learned from both of these cases is that a court has the power and does sometimes award a higher earning capacity to a party, despite what the party’s paycheck says.  Therefore, it is wise to discuss possible employment and income changes with your family law attorney.  Your attorney will be able to help you determine whether your support obligation could change.

If you are attempting to prove another individual’s earning capacity, work history, prior earnings, education and the reason the other person left the higher paying job all provide the trier-of-fact with evidence.  However, not every court will impose an earning capacity in every case.  Review your own specific set of facts with an experienced attorney.

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

Monday, October 13, 2014

Of course my child is acting out, we are getting divorce.

A divorce shakes a family to its core, and children understandably feel the impact.  Children can respond to a divorce in many different ways, and often parents notice that children start acting out, throwing fits, talking back, and are more irrational or emotional.  To some extent, it is reasonable that parents tend to turn a blind eye to the behavior and let some of it slide.  When life is hard, it is difficult to hold it all together, especially for a child.

That said, parents need to work together from the beginning to form a unified disciplining strategy.  Children are smart, and eventually, even the youngest children will learn to manipulate their parents, especially divorced parents.  This manipulation can occur through bad behaviors or playing non-cooperating parents off of each other.  For example, a savvy child will quickly learn that all he may need to say is “I hate you.  Dad lets me do XYZ.”  Then he has placed Mom in a position of feeling like she is in competition with Dad, and she will ignore a normally inexcusable behavior (“I hate you”) and will give in to the child’s request to do XYZ.

Therefore, it is important for parents to hold their ground on disciplining a child during a divorce.  Sure, letting things slide now and again is probably good for both the parent and the child, but the parent must remember that he or she is still the parent.  To the extent it is possible to work with the other parent, even if it is through co-parenting counseling, each parent will be in a better position to help the child cope with the divorce and maintain good behavior.

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

Thursday, October 09, 2014

Imputing Income to Stay-At-Home Parents for Child Support

With the economy still recovering, many stay-at-home parents can have a difficult time finding a job after separation due to the many years they spent out of the workforce.

In Pennsylvania, child support is calculated based on the incomes of both parents. In the case of a stay-at-home parent, the court often imputes that parent an earning capacity for the purposes of determining support.

Under Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4), when imputing an earning capacity, the Court must consider factors such as “age, education, training, health, work experience, earnings history, and child care responsibilities.”

The stay-at-home parent can be evaluated by a vocational expert, who advises the court on the parent’s likely earning potential based on the parent’s work history and education. However, it most cases, litigants cannot afford this type of valuation.

Recently, in Morgan v. Morgan, the Pennsylvania Superior Court held that the imputed earning capacity must be based on the salary the parent is likely to earn immediately upon returning to the workforce. Because the trial court averaged all the salaries presented by the vocational expert, including several the Mother was not likely to earn until she had been employed for several years, the appellate court remanded the case back to trial court for recalculation.

Under Morgan, the Court should consider the parent’s absence from the workplace when calculating earning potential. In Morgan, the Appellate court found the Trial court had failed to account for the fact that the Mother had not worked in twelve years.

Difficulties often arise when a parent with a significant imputed earning potential is primarily responsible for the care of a disabled adult child. In Morgan, for example, the Mother alleged that the cost of a full-time caretaker for her disabled adult child would be similar to her total earning capacity. Parents in this situation should be aware that the court will likely not address such concerns unless the parent actually obtains employment and the actual cost of a caretaker can then be calculated. In these cases, a parent who wishes to continue to be the caretaker may face a reduction in support.

With the economy still rebounding, the court’s recent decision in Morgan should lessen the fears of some stay-at-home parents who must now search for a job. Due to the difficulty of getting back into the workforce after a long period of absence, the court should base imputed income only on the jobs a parent might immediately secure. Parents should also be aware that the evaluation of childcare expenses is often assessed after the stay-at-home parent has secured a job, and the parent’s hours and salary can be accurately determined. As in all situations concerning support payments, all parents affected should be sure to consult an attorney.

Litigants can help their case by gathering written documentation of the cost of daycare so the Court can understand the cost of childcare versus potential income. Parents who have been out of the workforce for years sometimes must re-start their careers at entry-level positions, with entry-level pay to match.

Written by Jill Fitzgerald, Second Year Law student at Drexel University.  Jill is currently a co-op student at the Law Offices of Linda A. Kerns, LLC.  Linda A. Kerns, Esquire edited this article.

Monday, October 06, 2014

What should I do if I’m afraid my child will be taken out of the country?

For many parents, it is a legitimate fear that their child’s other parent will take their child to a foreign country and not return.  This is particularly troublesome if the potential destination country has not signed treaties with the United States regarding child custody.  There may be an additional fear if the other parent has citizenship in a foreign country.  Depending on the laws of the other country, you may not be able to prevent the other parent from obtaining a foreign passport for your child, but there are other steps that you can take.

This issue is one that must be a high priority to discuss with your attorney when addressing custody issues.  Your custody order should clearly define when and how your child should be allowed to travel.  You can also consider having a neutral party, such as your attorney, hold your child’s passport so that neither parent can use the passport without both parents prior knowledge and consent.

Additionally, you can visit the United States Department of State website (click here) and sign up for an alert should anyone try to obtain a passport for your child.

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

Thursday, October 02, 2014

Enough is enough - when to listen to the court.

In many, if not all, cases, a party is not going to be happy with at least some of the outcomes during family law litigation.  It would be the rare case where a party was always happy with the court’s decisions.  In some situations, this will lead a party to either file exceptions or file an appeal, as the case and situation may warrant.  Exceptions are similar to an appeal in that the party asks a higher level of the judiciary to review the decision; however, because they occur at the lower levels of the court, they are not “appeals” to the appellate court.  For example, a party may file exceptions to a support master’s recommendations, and the exceptions are then heard by a judge.  If then a party was displeased with the outcome, he or she could file an appeal with the appellate court.

Our court system is highly structured and has specific procedural practices that must be followed.  It is designed so that people are able to receive fair review of their cases, and so that the court system is able to efficiently and effectively hear the vast number of cases that wind their ways through the system each year.  The appellate process is specifically designed to foster these goals.  Additionally, the appellate process is designed so that at some point there is an “end” to a case.  In other words, a party should not be able to continue appealing indefinitely and hold the parties up in litigation and tie up the court system.

In a recent Pennsylvania case, Webster v. Webster, the appellate court discussed sanctions that were ordered against a party who continually filed frivolous motions and tied the case up in needless litigation.  In that case, Husband and Wife were involved in support litigation.  The Husband was ordered to pay child and spousal support to Wife, and he was given twenty days to file exceptions.  Husband did not file exceptions, but thereafter, he filed multiple other motions requesting that he win on the merits of the case.  The trial court denied his motions, but he continued to file the motions.  Eventually, the trial court ordered sanctions against Husband which required him to pay Wife’s attorneys fees and costs.  When Husband appealed, the appellate court upheld the trial court’s sanctions.  In short, the appellate court noted that “the relentless pursuit of a meritless claim is punishable by sanctions, including attorneys fees.”

Litigation can leave a sour taste in the mouth of parties, but there must be an end.  Despite a party’s desire to “win,” at some point, each party must accept the they have reached the end of the road, and that they must try to accept the court’s decision, move on and continue to live their lives.

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

Monday, September 29, 2014

I’m not even sure that I want to get divorced, why do an attorney consultation?

A lot of times, people call our office with a lot of questions and a whole lot of uncertainty about whether they want to get divorced.  It is understandable and normal that an individual may have significant hesitation prior to proceeding with a divorce, because no one ever gets married with the intention of eventually getting divorced.  The circumstances that lead to divorce are many, and along those paths, many individuals feel much indecision.

We suggest that people come into our office for consultations, even if they are not positive that they want to move forward with a divorce.  Meeting with a divorce attorney does not mean that you are going to get a divorce, and a good divorce attorney will not encourage you to get divorced if that is not what you are ready to do or what is best for you.  Instead, during a consultation, you should learn a lot about how the divorce process works in your state.  It will prepare you for a conversation with your spouse so that you know your rights and responsibilities.  Additionally, you will learn about things like support, alimony and child custody.  This information will help you make decisions about what you would like to do.  

Having a conversation with your spouse about the state of your relationship and potentially a divorce will go more smoothly if you understand your legal options and rights prior to having the conversation.  Moreover, we also can provide potential clients referrals for counseling and other services, when appropriate.  In our office, we are happy when we learn that a potential client has been able to sort through their relationship with their spouse.  That said, we also want to help our clients make the right decisions for themselves from the very beginning of the process.  Having an attorney consultation is the best way for you to begin the decision-making process.

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

Thursday, September 25, 2014

I was the step-parent to a child, can I get custody?

In New Jersey, the answer is “maybe.”

The recent New Jersey case, K.A.F. v. D.L.M. ( discussed the rights of “psychological parents.”  This particular case was in the context of a same-sex couple; however, the principles are equally applicable to heterosexual couples.  In this case, the parents listed on the child’s birth certificate had ended their relationship, and one parent began a new relationship, which resulted in a civil union.  In that new relationship the step-parent began to parent the child.  When the parent of the child and the step-parent’s relationship ended, the step-parent petitioned the court for custody of the child.  In the case, the court examined the concept of a “psychological parent.”

The court notes that it is not easy for someone to establish that they are a psychological parent to a child, and sets out a four part test:
1. the legal parent must consent to and foster the relationship between the third party and the child;
2. the third party must have lived with the child;
3. the third party must perform parental functions for the child to a significant degree; and
4. a parent-child bond must be forged.

The fourth prong is the most important prong of this particular test, because the courts are primarily concerned about any psychological damage that may occur to the child if the child is not allowed to continue to spend time with the psychological parent.

In K.A.F., the court held that it did not matter that one parent did not consent to the formation of the the bond between the step-parent and the child, because the other legal parent did consent to and foster the relationship.  This holding is important, because a potential psychological parent cannot be denied custody time with a child simply because one of the legal parents alleges that he or she did not consent to the relationship.

Ultimately, the court is primarily concerned with protecting the child’s best interests and ensuring that no avoidable psychological harm is done to the child.  However, this primary concern must be balanced with protecting the rights of parents, including a psychological parent.  The court noted that in most cases, if the third-party, whether a step-parent or another individual who fits the criteria, is able to establish that he or she is a “psychological parent” then some sort of visitation would like be the most appropriate course of action.

If you live in New Jersey and would like to obtain custody of a child who is not your biological or adopted child, and you believe that you meet the criteria for a “psychological parent,” you should contact an attorney to discuss your options.  This concept does not apply to Pennsylvania.  In Pennsylvania, step-parents do not have have automatic standing to request custody, but may meet criteria to establish standing.  It is a question that should be discussed with your attorney.

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

Monday, September 22, 2014

Homework is a shared responsibility

Most children, especially young children, need the help and guidance of their parents to timely and appropriately complete their homework assignments.  This is especially true for long term, larger-scale projects, as children learn the time management skills necessary to complete the assignment on time.  All children need this help, but children that split their time between separate homes may need extra attention and help with this.

Both parents should take responsibility in assisting their children with homework assignments.  Sometimes a parent, especially if they have less time with the child than the other parent, feels that they should be able to do fun things rather than homework during their time with the parent.  However, this outlook is unfair to both the other parent and the child.  The child needs guidance from both parents to help complete homework, and should be taught to complete tasks on a daily basis, rather than waiting to the last minute.  Therefore, it is very important for both parents to be aware of the child’s homework assignments and to coordinate with the other parent in order to make sure the assignments are completed on time.  

Now that the school year is well under way, both parents should try to discuss and create a gameplan for how they plan to address the child’s homework and other school related activities.  By being on the same page at the beginning of the school year, parents can reduce stress for themselves and confusion for their children.

Sometimes, the other parent simply will not cooperate with the responsible parent.  At that point, the child and the responsible parent must work out a schedule and strategy to complete both short and long term projects, even if the other parent will not cooperate.  The ultimate goal is to see your child live to his or her potential, and you may find yourself having to take the lead for this important task.

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

Thursday, September 18, 2014

I have a Final PFA against someone, can I extend it?

Typically in Pennsylvania, when a person files a Protection from Abuse (“PFA”) petition, a temporary order is immediately issued, and is then followed-up with a hearing before a judge within a short period of time.  At the hearing, the judge will hear evidence from both parties, and then determine whether a Final PFA Order should be entered.  A Final PFA Order typically lasts for three years.  

Recently in Trout v. Stube, the Pennsylvania Superior Court clarified when a protected party can request that a Final PFA Order be extended beyond that three year period.  The court reviewed two situations where an order can be extended.

An example of a situation when a PFA can be extended is if the defendant violates the PFA Order through indirect criminal contact.  During the hearing regarding the indirect criminal contact, if the defendant is convicted and the protected party requests an extension at that time, then the court hearing the contempt hearing shall extend the PFA Order under subsection 6114(b) of the PFA Act.  The Trout case clarified that the protected party must request the extension at the hearing, not at a later date, in order to utilize the statutory language that requires the court to grant the extension.

A protected party can also utilize subsection 6108(e) of the PFA Act to request an extension.  Under this subsection, a protected party can obtain an extension if the defendant commits one or more acts of abuse after the PFA Order was entered or if the defendant engages in a “pattern or practice” that indicates a risk of harm to the protected party or child.

If you have a Pennsylvania PFA Order in place, you should know that if you ever feel in danger the most important thing to do is to try to remain safe.  Therefore, you should immediately call 911 if you feel threatened.  That said, once you are in a safe place, you should also contact your attorney to determine the best way to move forward to ensure your continued protection.

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

Monday, September 15, 2014

I get along with my co-parent, do we really need a custody order?

Often we have a parent come into our office for a divorce or simply to figure out how custody works, and they wonder whether they really need a custody order.  As far as they are concerned, things with custody are working out fine, and they do not want to disturb the peace or spend the money to obtain a custody order.

Sometimes, depending on what additional information we learn about the parents and children, we agree that there is no need to obtain a custody order.  However, most parents need the security of a custody order.  Custody orders serve multiple purposes, in addition to establishing the physical custody schedule.  They can dictate who provides transportation, who has custody on holidays, and how vacation time will work.  They can clarify how often a non-custodial parent should be able to communicate with the child.  The order specifies who is able to make medical, school and other important decisions.  In short, they can establish the rules for how the family will work, while also clearly defining who has physical custody.

Having a piece of paper to show third parties, such as school administrators, doctors’ offices, legal officials or even athletic teams, that you have legal custody of your child can be vitally important.  It can prove that you have a right to obtain records regarding your child, and in the case of an emergency, it can prove that you have the authority to make decisions for your child.

Obtaining a custody order does not mean that you have to engage in extensive litigation.  If you believe that you and the other parent can reach an agreement on what is best for your child, then it is possible to draft a custody stipulation or agreement.  The nice thing about reaching an agreement is that the power stays in the parents’ hands.  The judge is not the one making the final decision.  Through a series of negotiations and gives and takes, you could reach an arrangement with the other parent that allows both of you to do what you both believe is best for your child.  This spirit of cooperation is a great way to start co-parenting your child.

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