Monday, May 09, 2016

Approach Your Divorce in Business-like Manner

I was recently quoted in an article on regarding divorce advice: click here.

Tuesday, April 19, 2016

Preserving Your Internet Privacy During Divorce Litigation

After a separation, it’s only natural to wonder what your spouse is doing. Litigants often try to gain information by carefully watching their spouse’s social media activity. As we have said before, litigants should always be careful what they post on social media during litigation. In addition to tracking social media, some litigants have been known to try hacking into a spouse’s e-mail account to gain information.

Due to the nature of a marital relationship, it is possible that your spouse may know or be able to guess at your e-mail password. A spouse may also know the answers to your security questions. Litigants should always change their passwords and security questions when separating from their spouses. Watch carefully for anything that could indicate an intrusion – many e-mail platforms now will tell you when the account was last accessed, and almost all will send you alerts when someone changes your password. Many platforms also allow a two-stage login process, where the account holder is required to input a code sent to his or her  mobile phone via text or an app to gain access. Litigants can utilize all of these tools to proactively protect themselves.

Litigants should never try to access their spouse’s e-mail account. Doing so is a serious, and likely illegal, intrusion of privacy. While the law around electronic privacy is still developing, a recent Mississippi Supreme Court case emphasizes just how seriously courts take such an intrusion. In In Re: Joel B. Eisenstein, No. SC95331, April 5, 2016, an attorney was suspended for a minimum of twelve months because his client hacked into the ex-spouse’s e-mail account and provided the documents to the attorney. When the attorney realized how the information was obtained, he failed to immediately notify the opposing counsel, and actually used the information in the case.

The Mississippi Supreme Court characterized the client’s action as a “method of obtaining evidence that violat[ed] the legal rights of [the other litigant].” Eisenstein at 4. This is a clear indication that courts take violations of the other litigant’s privacy very seriously. The Eisenstein case did not discuss what eventually happened to the attorney’s client, but, it is safe to assume that, even if his actions did not result in an unfavorable outcome in the litigation, he has ruined his chances at ever reaching a good working relationship with his ex-spouse.

While it can be tempting to want to know what your spouse is doing during a separation or contentious court battle, remind yourself that states are increasingly regulating internet privacy intrusions, and your actions could have serious, if not criminal consequences. Never try to hack into your spouse’s private internet accounts, and take proactive steps to prevent any attacks on your own privacy.

his 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.

Thursday, April 14, 2016

Your Child is Going to College! If You Are Divorced in New Jersey, Who is Going to Pay for it?

With National College Decision Day coming up right around the corner, it is time to talk about the real college question: how to afford it. In an intact family, parents make decisions about college together. Questions of which college the children will attend and how much the parents will contribute are answered by consensus. Some parents can contribute a significant amount to their children’s college expenses, and some cannot. Some children will have an unrestricted choice of schools, while others will be constrained to the public option due to their parents’ financial resources.

In New Jersey, a series of court cases helps determine how families should pay for college when separated and divorced parents cannot agree. The landmark Supreme Court case Newburgh v. Arrigo, 88 N.J. 529 (NJ 1982) established the following list of factors for courts to consider when determining parental contributions to higher education:

(1) Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;

(2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;

(3) the amount of the contribution sought by the child for the cost of higher education;

(4) the ability of the parent to pay that cost;

(5) the relationship of the requested contribution to the kind of school or course of study sought by the child;

(6) the financial resources of both parents;

(7) the commitment to and aptitude of the child for the requested education;

(8) the financial resources of the child, including assets owned individually or held in custodianship or trust;

(9) the ability of the child to earn income during the school year or on vacation;

(10) the availability of financial aid in the form of college grants and loans;

(11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance, and;

(12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

While this list appears extensive, subsequent decisions have interpreted the primary goal of the factors as replicating the decision-making process of an intact family. For example, the parents’ relationship with the child, as well as their actual ability to contribute to higher education costs, would likely determine the parents’ contribution in an intact family. Parents would also consider the fairness of contributing to one child’s education when other teenage children will also soon attend college and the family might need to conserve resources.

A recent New Jersey Trial Court case, Black v. Black, Docket No. FM-15-310-10-N, June 26, 2014, demonstrates how the Newburgh factors are applied in combination to help the court reach an equitable result.

In Black, the parties’ property settlement agreement stated that they would both contribute to the three children’s college expenses, although both parties earned modest salaries. Father and the oldest child were estranged, with the oldest child refusing to attend reunification counseling following the parties’ divorce. Father maintained a relationship with the parties’ two other children, and made efforts to heal the relationship with the oldest child, to no avail.

When the oldest child decided to attend Rutgers, Mother asked Father to contribute to the expenses. Father refused, in part due to his lack of a relationship with the oldest child. After his first year at Rutgers, the child wanted to transfer to a more expensive private school. As the parties could not agree on who would pay the college expenses, they asked the Court to decide.

The Court in Black started with the issue of the estrangement between Father and the Child. Analogizing the situation to an intact family, the Court reasoned that a child who refused to have a relationship with his parents in an intact family would be unlikely to receive money for college expenses. However, the Court distinguished between the child refusing a relationship with the parent and a non-custodial parent refusing to have a relationship with the child. Because of the realities of divorce, the Court wanted to ensure that parents cannot abandon their children to avoid financial responsibility. Eventually, the Black Court held that Father would be required to contribute to the oldest child’s college expenses contingent on the child agreeing to attend counseling sessions with Father.

The Black Court then turned to the issue of ability to pay. Because both parents had modest incomes, the Court determined they would only be able to contribute a modest amount to the children’s higher education, and that those contributions should be evenly shared among the children. The Court found it inappropriate to require either parent to stretch their financial position with additional debts, such as a second mortgage or 401(k) loan, though it noted that either or both parents could voluntarily choose to do so.

Finally, the Court in Black looked at the choice of schools. The Court held that the child was entitled to attend any school he wanted, so long as he could find a way to pay for it. The parties would be required to contribute the same amount regardless of which school the child selected. The Court specifically noted that, had money not been an issue, the child most likely would have received a greater contribution from the parents.

Litigants should keep in mind that college can be an enormous expense, and, even if parents are not involved in the college selection process, they may still be required to contribute in New Jersey cases. Parents should stay involved as their teenagers begin the college selection process, and be sure to provide input on possible choices and expected contributions. Visit the schools with your children. Manage their expectations. Explain your ability to contribute, and, if necessary, assist your child with exploring grants, loans and scholarships. Stay in close contact with the other parent so that you are both on the same page.

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.

Friday, April 01, 2016

Furry Family Members: Liability Concerns for Pet-Owning Pennsylvanians

Pets can be very important family members, but, just like children, they require significant amounts of supervision. An unsupervised or poorly behaved pet could expose its owners to personal liability. Under Pennsylvania law, pet owners are only liable for injuries caused by their pets where the pet owner intentionally causes the animal to harm someone or was negligent in failing to prevent the harm. Kinley v. Bierly, 876 A.2d 419 (Pa. Super. 2005). Negligence means that the owner did not take reasonable steps to prevent potential harm. However, if the pet owner knows or should have known that the animal is abnormally dangerous, based on previous behavior, the pet owner is strictly liable for injuries that occur. This means that you are liable even if you take reasonable precautions to prevent harm.

In a recent Pennsylvania Superior Court Case, Franciscus v. Sedvick, 2016 Pa. Super. 52, the Court extended the pet owner liability laws to dog-walkers who were in control of the animal at the time of the harm.

The dog-walkers were found to be subject to the same standards as pet owners. If the dog-walker did not know the dog was potentially dangerous, the negligence standard would apply. However, if the dog-walker had reason to believe the dog could be dangerous, he was strictly liable for any harm that occurred on his watch.

In Franciscus, a child was bitten when the dog-walker gave the child permission to pet the dog. The Court found evidence of the dog-walker’s knowledge of potential danger in the owner instructions provided to the dog-walker, which stated that the dog should be muzzled and was not to interact with children or other dogs. The Court also noted that the owner’s door had a posted “Beware of Dog” sign.

Pennsylvania pet owners should be sure to disclose all behavioral problems to their dog-walkers, pet-sitters, and any other people who handle their animals. Pet owners should also be sure to take reasonable precautions to prevent harm, even if they do not think their particular pet is dangerous.  Walking your dog on a leash is always a good idea, and, in many localities, dog owners can be fined for not taking this most basic precaution, even if no injuries occur. Pets are a large responsibility, and pet owners should make all possible efforts to protect themselves, their pets, and the public.

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.

Tuesday, March 29, 2016

Who Will Pay for an Attorney for Your Child?

     Many times, in custody litigation, parents are so certain that their position regarding their children is correct and that their children are not being “heard,” that they request an attorney for their child.  However, courts rarely appoint attorneys for children as, absent extraordinary circumstances, separate representation for the child is simply not needed.  The court decides a child’s best interest, not the child.  Additionally, parents often do not manage their expectations and wrongly believe that the child’s attorney will automatically side with their point of view.  However, unfortunately for these parents, in many cases, the child’s attorney could end up with a third view point so that the judge must sift through the arguments from 3 different points of view, the mother, the father and the child, rather than 2 different points of view, which would be the mother’s and the father’s.  As custody determinations focus on the child’s best interests, having separate representation for the child is usually not necessary as, presumably, the court and both parents are looking out for the child’s best interests.

In Pennsylvania, in addition to an attorney for the child, the Court can appoint a guardian ad litem for a child if necessary.  Pursuant to the statute, the guardian ad litem will:

1. Meet with the child as soon as possible following assignment . . . and on a regular basis thereafter in a manner appropriate with the child’s age and maturity;

2. On a timely basis, be given access to relevant court and county agency records, reports of examination of the guardians or the child, and medical, psychological and school records;

3. Participate in all proceedings, including hearings before masters, administrative hearings and reviews to the degree necessary to adequately represent the child;

4. Conduct such further investigation necessary to ascertain the facts;

5. Interview potential witnesses, including the child’s guardians, caretakers and foster parents, examine and cross-examine witnesses, and present witnesses and evidence necessary to protect the best interest of the child;

6. At the earliest possible date, be advised by the county agency having legal custody of the child of:

(a) Any plan to relocate the child or modify custody or visitation arrangements, including the reasons, prior to the relocation or change in custody or visitation; and

(b) Any proceeding, investigation or hearing under the Child Protective Services Law . . . directing affecting the child;

7. Make any specific recommendations to the court relating to the appropriateness and safety of the child’s placement and services necessary to address the child’s needs and safety, including the child’s educational healthcare and disability needs;

8. Explain the proceedings to the child to the extent appropriate given the child’s age, mental condition, and emotional condition; and

9. Advise the court of the child’s wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child’s wishes.  When appropriate, because of the age or mental and emotional condition of the child, determine to the fullest extent possible the wishes of the child and communicate this information to the court.

The guardian ad litem in Pennsylvania is different than direct legal counsel for a child as an attorney would generally represent only the legal interest of the child while the guardian ad litem would represent both the legal interest and best interests of the child (which interests may not always comport with the child’s wishes).  Obviously, appointing a guardian ad litem for your child or even an attorney for a child, is a complicated process and involves invasive and comprehensive participation by yet someone else in the very private family matters of child custody.  As the roles are defined by statute, parents should be familiar with what the law allows to make sure a child’s attorney or guardian ad litem does not overstep their bounds.  

Many parents do not understand that they can be charged for the fees incurred by a guardian ad litem or an attorney for the child.  Recently, in the United States Court of Appeals for the Second Circuit, a father sued the Justices of the Matrimonial Parts of the Supreme Court of Suffolk County, challenging the constitutionality of the law in New York that authorized the state judge to order a parent to pay for attorneys appointed for the children.  The father’s complaint was dismissed at the trial level and that dismissal confirmed at the appellate level as the federal court found that the state court has the ability to perform its judicial function in divorce and custody proceedings and therefore has the ability to make these decisions.  The name of the case is Falco v. Justices of the Matrimonial Parts of the Supreme Court of Suffolk County, docketed at 15-863-cv.

Notably, while some parents believe that the non-specified “court” or “state” or “government” will pay for representation for their children in custody matters, the costs will most likely be shifted to the parents.  In cases of abuse or neglect, an attorney for the child or guardian ad litem could be necessary.  Presumably, if the child’s parents commit abuse or neglect, another individual must protect the child’s best interests.  However, parents should think carefully before seeking this type of involvement by other professionals in their case.  The existence of allegations of abuse or neglect exist does not guarantee the appointment of a guardian ad litem or attorney for the child.  The court decides the issue on a case by case basis.  If the court insists on appointing a child an attorney or guardian ad litem, work with that person to pursue what should be a common goal - the child or children’s best interests.

Friday, March 25, 2016

Grandma’s Got Rights? Grandparent Visitation in New Jersey

In an intact family, a child’s parents decide with which extended family members the child will have a relationship, and what that relationship will look like. However, when the parents split up, or one parent passes away, extended family relationships can get complicated.

When both parents have parenting time with the child, generally, the parent currently exercising his or her parenting time has the right to decide which extended family members the child will see, and how often. Either parent is welcome to take the child to see their extended family members, but neither is required by law to do so.

Parents have a Constitutional due process right to raise their children as they see fit, including decisions about allowing the child to visit extended family members. However, issues often arise when one parent has passed away, and the remaining parent limits the time the child spends with the other parent’s extended family.

Many states, including New Jersey, have developed “Grandparent Statutes” which give Grandparents the right to petition for visitation of a grandchild where the child’s parent has prevented it. Because of the constitutional issues surrounding parenting rights, these statutes are narrowly written, and even more narrowly construed.

In New Jersey, in order to gain visitation rights to a grandchild under N.J.S.A 9:2-7.1, the Grandparent Visitation Statute, the Grandparent must prove by a preponderance of the evidence that the child will suffer harm if the Grandparent is not allowed to have visitation with the child. The court will then set a visitation schedule that is in the “best interests of the child.”

When a Grandparent files for visitation rights, the Grandparent must make a prima facie showing of harm to the child. Essentially, this means that the Grandparent must convince the Court that the Grandparent could, if offered the opportunity, prove that the child would suffer harm if prevented from seeing the Grandparent.

What constitutes a prima facie showing of harm? The answer is, it depends. Custody decisions are always factually specific analyses performed by the Court, often making the outcomes less than predictable. One of the best ways to predict the outcome of any given factual circumstance is to look at the way courts have treated certain circumstances in the past.

In Major v. Maguire, A-110 January 12,2016, the Supreme Court of New Jersey addressed just such an issue. In Major, the Paternal Grandparents petitioned for visitation of the grandchild after the passing of the grandchild’s father. During the Father’s life, the Grandparents visited the Father regularly, between once a week and once a month, when he had custody of the grandchild. The Grandparents attended many of the grandchild’s activities, including dance recitals, and accompanied Father and the grandchild on vacations.

 After the Father became ill with cancer, the Grandmother lived with Father part-time at first, and then, toward the end of his illness, full-time. The Grandfather also visited the Father and performed caregiver tasks for the grandchild when she was in her Father’s custody.

In the Major case, the Court found that the Grandparents had shown a prima facie case that the child would be harmed if prevented from visiting with them. The Court placed weight on the recent trauma to the grandchild in losing her Father, as well as the significant caregiving role the Grandparents played prior to the Father’s death.

Like all custody situations, similar facts can often result in dissimilar outcomes. The Court’s finding for the Grandparents in this case does not mean that the Grandparents will ultimately win visitation time with the grandchild. All this means is that the Grandparents have the opportunity to return to Court and present evidence.

Litigants should be aware that the bar for a prima facie case is very high under Grandparent Visitation statutes. Because parents have a constitutional right to raise their children, an argument for visitation must be especially compelling to proceed in Court. Litigants should consider all their options before filing a petition for visitation. In addition to being lengthy and expensive, Grandparent visitation litigation is likely to further damage the Grandparent’s relationship with the surviving parent. Litigants should weigh the strength of their case carefully before proceeding to Court.

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, March 23, 2016

In New Jersey, Is It Ever Appropriate to Pay Child Support Directly to a Child?

The short answer to this question is no.  Parents pay child support to each other to be used for the needs of the children.  New Jersey Child Support laws provide custodial parents autonomy in managing their financial affairs and the needs of the child.  However, in New Jersey, some "children" still subject to child support orders are actually young adults attending college, with part time jobs.

Recently, a Judge in Ocean County considered a case wherein the Father requested that he pay his child support directly to his 21 year old daughter, a junior in college, reasoning that she needed it for expenses associated with her education.  Mother objected, as she needed the child support to maintain the household where their daughter lived.  The Court evaluated the case and concluded that while there could be some instances where he would order that at least a portion of the child support be paid directly to the child, in this case, the financial situations of the parties and the amount of the child support did not warrant a direct payment to a child.  You can read the full opinion here.  Understand that this opinion is not reported and therefore without precedential value.  However, unreported opinions provide guidance into a court's reasoning.

Tuesday, March 22, 2016

International Child Abduction and the Hague Convention

       Unfortunately, parents sometimes kidnap their children in the United States. Amber Alerts, sent to all the cell phone subscribers in an area, frantic police manhunts, and stories of children recovered years later  have all dotted the newspapers over the past few months.

International abductions, however, sometimes fly under the radar. Some parents take their children on international vacations, with the other parent's consent, and simply never return. Others, such as in the case of Cillikova v. Cillik, Civil Action No.15-2823 (D. N.J. 2015), just disappear. In Cillikova v. Cillik, for example, the children’s father and primary custodian took the children, who lived in Slovakia, to New Jersey, without telling their Mother, and did not return. Mother first learned that Father had taken the children to the United States when she called him after she discovered that the children’s cellular phones were not working. By this time, Father and the children were already getting settled in New Jersey.

Because the United States is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), the Mother in Cillikova v. Cillik was able to file a petition to have the children returned to Slovakia.

Under the Hague Convention, custody matters involving the children must be adjudicated in the children’s home country, which is the state where the children lived, attended school, and primarily resided prior to the wrongful removal. The Hague Convention requires that the children must be returned to the home country unless one of a few narrow exceptions is met, or unless the children are over the age of sixteen.

  The goal of the Hague Convention is to “restore the status quo prior to wrongful removal or retention” and to prevent parents from taking their children to another country where the custody laws might favor them.

In Hague Convention cases, any underlying child custody disputes must be decided by the Courts in the child’s home country. The Court in the country of wrongful removal may only adjudicate petitions to return the child to his or her home country.

In order to win a petition for return, the Plaintiff must prove that the children were habitual residents of the home country, that they were removed in violation of the petitioning parent’s custody rights, and that the petitioning parent was exercising his or her custody rights at the time of wrongful removal. In the Cillikova v. Cillik case, the Mother had shared legal custody of the children as well as visitation rights prior to Father removing them from Slovokia.

The Removing parent may raise affirmative defenses, but the Hague Convention allows only six, and they are very narrowly construed by the courts. These defenses are:
1) grave risk of physical or psychological harm if the child is returned,
2) consent or acquiescence of the petitioning parent,
3) the child has become well-settled in its new environment, after at least one  year,
4) returning the child would violate fundamental principles relating to the protection of human rights,               5) the mature child objects to the return
6) the petitioning parent was not actually exercising custodial rights at the time of wrongful removal.

        Litigants should know that United States Courts usually grant affirmative defenses to wrongful removal only under extreme circumstances. 

        Litigants can take many steps to prevent international child abduction. Many custody orders prohibit international travel with the children absent the written consent of both parties or the Court’s approval. If litigants are truly afraid one parent may take the children out of the country without telling the other parent, the litigants can ask that one party’s attorney, or the Court, hold the children’s passports for safekeeping. Litigants can also contact the State Department and ask that they flag the children’s passports.

When one parent wishes to take the children on an international vacation, litigants should make sure that country is a signatory of the Hague Convention. If a party is particularly concerned about international abduction, the party taking the international vacation may be required, by agreement, or by the Court, to post a bond, which will be refundable upon the parent’s safe return with the children. And, of course, if you think your child has been wrongfully removed from the United States, contact the State Department immediately, as well as an experienced attorney.

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.

Friday, March 18, 2016

Looking Down the Road: New Jersey Child Support and Teenage Drivers

After college, car expenses and insurance can be some of the largest expenses for older children. In an intact family, parents decide together when the child can get a driver’s license, as well as who will pay for the child’s insurance, the amount of insurance coverage necessary, what kind of car the child would be allowed to drive, and whether the child would be required to contribute his or her own money.

When families separate, making these decisions becomes more complicated. Parents may not always agree about what is best for the child. Sometimes, they must ask the Court to decide.

In New Jersey, Child Support amounts are governed by the Child Support Guidelines. There is a rebuttable presumption that the amount of support calculated under the Guidelines is the correct amount. This means that the parties can only argue for additional (or lower) support when they can show “good cause” to adjust the Guideline amount. What constitutes “good cause” is subject to much judicial discretion.

The New Jersey Child Support Guidelines take into account a number of ordinary children’s expenses, including, potentially, car insurance for an older child. However, the Guideline amounts increase with the income of the parties, not the age of the child. A parent with a carefully balanced budget based on the Guidelines may find it difficult to make ends meet when suddenly faced with a large car insurance bill.

In a recent New Jersey Trial Court opinion, Fichter v. Fichter, FM-15-469-11, October 21, 2015, the Court found that the need to provide the parties’ child with sufficient car insurance was “good cause” to require support beyond the Guideline amount. While this case did not create binding law, it provides some guidance as to the way other New Jersey courts may address this issue.

In Fichter, the parties’ divorce settlement stated that the non-custodial Father would contribute to the cost of car insurance for the older child, who was seventeen at the time, in addition to regular child support under the Guidelines. However, the agreement was silent as to whether Father would eventually be responsible for the car insurance of the younger child, who was only thirteen at the time.

When the younger child obtained her license, she became the primary user of the older child’s car, which was approximately ten years old. Mother asked Father to contribute to the child’s car insurance, but never received a response, so she filed for child support modification with the Court.

Examining the circumstances, particularly the parties’ intent that Father would provide insurance to the older child, and noting that Father could afford to contribute to the younger child’s car insurance, the Court in Fitcher found for Mother and increase Father’s support. Because the child was still in high school, the Court did not require the child to contribute to her own insurance.

The Court noted other facts that contributed to its decision, such as the reasonableness of the vehicle selected for the child, the importance of providing more than the minimum coverage due to the abundance of teen driving accidents, and the need to insure the child as the primary driver of the vehicle, rather than simply add her to her Mother’s plan as a licensed driver.

When negotiating a support agreement for older children, or even younger teenagers, Litigants should consider who will bear the cost of a teenage driver. In some cases, the parties may do best to avoid the issue altogether, and postpone the decision until the time arises. Litigants should keep in mind that an agreement that looks reasonable today may look much less reasonable five years down the road. Finally, Litigants should consider how their decisions with respect to an older child may affect their expected contributions to a younger child’s eventual expenses. Do not give in to an older child’s request for his or her own car, or help the child pay for insurance, unless you are willing to provide similar support for younger children.

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.

Thursday, March 17, 2016

Happy St. Patrick's Day

Wishing you the luck of the Irish!

Wednesday, March 16, 2016

IRS Forms and Useful Resources

If you are divorced or separated, a great starting place to familiarize yourself with U.S. Income Tax issues often facing divorced or separated individuals, review Publication 504: Divorced or Separated Individuals, updated by the IRS every year.

For a shorter version of the above document, check out: Divorce and non-custodial, separated, or never married parents, a Life Cycle Series.

If you claim a child as a dependent, and that child does not live with you full time, you most likely will need to attach Form 8332 to your Income Tax Return.

You should always consult with a qualified accountant 
and your attorney, 
when preparing your tax return.

Friday, March 11, 2016

The Cost of Early Retirement: Early Retirement May Not Reduce PA Alimony

In the United States, the minimum retirement age for full receipt of Social Security retirement benefits is between sixty-five and sixty-seven, depending on the applicant’s birth year (40 CFR 404.409). Beginning at age sixty-two, individuals can elect to receive early retirement Social Security benefits in a reduced amount. 40 CFR 404.410 governs the calculation of reduced benefits for early retirement. If a spouse is eligible for old-age spousal benefits, an early retirement election also reduces the spouse’s benefits.

Most individuals face a reduction in income when they retire, particularly if they elect to retire before reaching full retirement age. In Pennsylvania, alimony obligations may be modified where there is a substantial change in circumstances (as long as the parties did not agree to non-modifiable alimony). Pennsylvania Courts have held that “a change in a party’s income based upon retirement benefits is a ‘substantial change of circumstances’ upon which a modification of alimony may be based.” McKernan v. McKernan, 2016 Pa. Super 60.

However, litigants should note that Pennsylvania Courts are not required to modify alimony upon retirement of the obligor. Courts will still consider carefully the financial situation of both parties before reducing the obligor’s alimony obligation.

In a recent Pennsylvania case, McKernan v. McKernan, 2016 Pa. Super. 60, the Husband appealed the trial court’s decision not to modify his alimony obligation where he had elected early retirement at a 24% reduction of his Social Security benefits.

At trial, the Husband argued that the Court should take into consideration that Wife could elect to retire early and receive Social Security payments immediately, and should credit such payments to Wife’s current income. The Trial Court refused to consider Wife’s potential early retirement Social Security benefits, and did not reduce Husband’s support obligation.

Litigants should be aware that the Court cannot impute income to the parties where that income comes from early retirement Social Security benefits that the party has not yet elected to receive.

Presenting a successful case for alimony modification based on early retirement requires litigants to assemble a complete and accurate picture of their financial status and the dependent spouse’s financial status. In many cases, reduction in income due to the early retirement of one spouse may be a sufficient change in circumstances to modify alimony obligations. However, Litigants should consider the economic reality that their alimony payments might not be reduced thoroughly before deciding whether they can afford early retirement.

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, February 22, 2016

Keeping it Collectible: New Jersey Alimony Obligations

       When negotiating alimony, the payer’s instinct is to pay as little as possible, and the receiver’s instinct is to get the highest possible amount. However, particularly with regard to older couples, this may not always be the best strategy.

Under New Jersey law, there is a rebuttable presumption that alimony obligations cease upon the paying spouse achieving full retirement age. This presumption can be rebutted if the receiving party presents sufficient evidence that alimony should continue. In addressing the presumption to end alimony, the Court considers the factors in N.J.S.A. 2A:34-23(j)(1)(a)-(k) which consider the circumstances surrounding the establishment of the alimony obligation, the duration of alimony and amount paid to date, as well as the ages, health, and assets of the parties.

A New Jersey litigant who asks for more alimony than his or her ex-spouse can actually pay may be in a bind when that ex-spouse reaches retirement. Such a situation happened in Court v. Court, (Appellate Division, Docket No. A-0091-14T3) an unreported New Jersey case, where the Husband had accrued almost $200,000 in arrears before retiring due to health issues. While Husband had previously earned nearly $160,000 per year, upon retirement, he received approximately $27,000 a year in social security benefits. The Trial Court significantly reduced his alimony obligation, but even the reduced amount left him only $7,000 per year for his own living expenses.

Upon review, the Appellate Court remanded the case for a determination of whether or not alimony should be terminated. However, the Appellate Court further noted that any monthly payment toward the arrears Husband had incurred should be small enough that Husband had a sufficient amount of income remaining for his own support.

In real world talk, this means that, after the Trial Court heard the case again, the Wife in Court probably received only a very small monthly amount toward the payment of the arrears, and, because Alimony obligations in New Jersey terminate upon the death of the payer, her ex-husband’s retirement made it unlikely that she would ever recover the full amount she was owed.

Litigants should keep stories such as this one in mind when negotiating alimony obligations. Depending on the circumstances of your case, it may be to your benefit to negotiate a reasonable, but collectible, amount of alimony rather than an obligation that exceeds your ex-spouse’s ability to pay, and might result in thousands of dollars in uncollectible arrears.

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.

Thursday, February 18, 2016

Custody Agreements: Pennsylvania Superior Court Sets a High Bar for Unenforceability.

Pennsylvania Family Courts have increasingly encouraged litigants to settle their disputes by agreement. In fact, many of the initial procedural steps in family law disputes are designed to encourage litigants to find their own solutions.

Courts generally rubber-stamp family law agreements, unless the agreement contains terms that are so outrageous they violate public policy. Terms that violate public policy will not be enforced by the Court. Usually, this includes agreements not to seek child support and agreements not to modify custody or visitation.

These terms are appealing to litigants because of their perceived finality. However, because the statute governs the child’s best interests, the Court will not allow parties to decide what happens in the unforeseen future. So how close to the line may litigants walk before the Court intervenes? A new Pennsylvania case suggests that, at least with regard to custody agreements, Courts may be more willing to accommodate parties who attempt to control future actions.

In Huss v. Weaver, 2016 Pa. Super. 24, No. 1703 WDA 2013, the parties agreed in writing that Mother would have primary custody and Father would have visitation of any child born of their relationship. The agreement also stated that Father would pay Mother $10,000 every time he filed a “complaint, motion or similar pleading seeking the modification or amendment of the custody and/or visitation provisions.” At Huss page 4. At the outset, contracting about a child not yet born or in utero defies common practice. However, Father makes his living as an attorney and apparently decided to dabble in this pre-conception contract.

The parties had a child, and later separated. Father then filed several petitions and motions with regard to custody of the child, but did not pay Mother the $10,000. Mother sued Father under a breach of contract claim to recover the $10,000 per filing.

Father asked the Court to dismiss Mother’s breach of contract claim, arguing that the $10,000 provision of the custody agreement violated public policy.  A promise Father himself negotiated apparently now offended him enough to compel him to argue he should never have included it. A three judge panel of the Pennsylvania Superior Court initially found for Mother, so Father petitioned that the case be heard again, by all the Superior Court Judges. The Court agreed to re-hear the case, but reached the same decision: the $10,000 payment clause was enforceable.

Under Pennsylvania law, parents cannot bargain away the rights of their children, particularly, their child’s right to receive support payments from the other parent. Knorr v. Knorr, 588 A.2d 503 (Pa. 1991). Pennsylvania Courts will not enforce an agreement in which one or both parents promise not to seek child support.

The situation differs with regard to child custody. According to the Huss Court, the right to custody time with a child is a right that belongs to the parents, not the child. Therefore, the parents are generally free to make contracts relating to child custody, so long as the Court retains authority to modify the agreement in the best interest of the child.

The Huss Court suggests that child custody agreements are not enforceable where the terms of the agreement “plac[e] a serious impediment on either party’s ability to seek court modification in the best interests of the child.” Huss at page 12. However, the Huss Court declined to specifically address this because it found the agreement provided no evidence that the $10,000 term “[was] intended to discourage [Father] from seeking court intervention, or. . . that the payment would act as an impediment to his ability to do so.”

To the outsider, the Court’s holding that the $10,000 term in no way limited Father’s ability to modify the custody arrangement seems ridiculous. Most likely, that is exactly what the parties intended when they drafted the agreement.   However, both parties earned high incomes and Mother testified that the $10,000 term was simply intended to create a “defense fund” to help Mother pay her attorney fees. Due to the parties’ circumstances, the Court concluded that the $10,000 term did not prevent Father from exercising his custody rights, and was thus enforceable.

The Huss Court’s decision reflects Pennsylvania Courts’ increased preference for out of court settlements in family law matters, and their increased willingness to enforce those agreements. Litigants should always read carefully any agreement relating to child custody before signing it, think about the potential consequences of the agreement, and be sure they understand all the terms to which they are agreeing. Additionally, being creative in a custody stipulation may seem like a good idea, but too much creativity can subject you to years of litigation.

Notably, Father agreed, essentially, that Mother would have custody of any child they created. He felt so much confidence that he agreed to pay her $10,000 per modification attempt. This extensive litigation bears witness to his changed mind. Meeting and knowing his actual child, rather than an abstract concept of a future child, clearly convinced him to rethink his attitudes toward custody.

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.