Thursday, April 16, 2015

Can you use text messages as evidence in court proceedings?

A recent Pennsylvania Supreme Court decision, Commonwealth of Pennsylvania v. Koch, discussed whether a criminal defendant’s text messages could be used as evidence during the criminal trial.  In that case, the defendant was accused of possession with the intent to deliver drugs.  When the police searched the defendant’s home they found drug evidence.  When examining her cell phone, they found text messages that they believed to be about drug sales.

At trial, the prosecution introduced the text messages as evidence of her participation in the sale of illegal drugs.  The defendant argued that there were two problems with using the text messages as evidence.  First, even though it was her phone, the prosecution could not prove that she actually was the individual who sent the text messages and the prosecution took no steps to authenticate the text messages.  Second, the defendant argued that the text messages were inadmissible hearsay.  In response, the prosecution argued that they were not, in fact, trying to prove the truth of the information in the text messages, but rather they were simply trying to demonstrate that those kinds of conversations took place.  The trial court ultimately held that the text messages could be entered as evidence at trial.  

The defendant was ultimately convicted at the trial level, and appealed, in part, arguing that the text messages were inadmissible as evidence.  The Superior Court reversed and held that the text messages were inadmissible.  Likewise, the Supreme Court upheld the Superior Court’s opinion, and a new trial was ordered.

When upholding the Superior Court’s reversal, the Supreme Court carefully examined the issues of authentication and hearsay.  Ultimately, the reversal landed on the shoulders of the hearsay objection rather than the concerns with authentication.  The Supreme Court acknowledged that the prosecution had done nothing to authenticate that the text messages were written by the defendant; however, the Supreme Court noted that the burden for proving authentication is not high.  In this case, because the defendant was also charged as an accomplice, it did not directly matter whether she had personally written the text messages.  The Supreme Court used this logic because part of whether an electronic communication, such as a text message, can be authenticated depends on the purpose of introducing the message as evidence.  In this case, because the defendant was also charged as an accomplice and co-conspirator, the fact that her phone was used for the messages, regardless of who wrote the message, was enough to satisfy the authentication burden.

In contrast, however, the Supreme Court noted that the prosecution failed to prove that the text messages were hearsay that were admissible under an established exception to the rule.  The prosecution tried to argue that the text messages were simply being admitted as evidence to prove that conversations about drug sales had occurred, but not as proof of the truth of the statements made.  One problem was that the prosecution then used an expert to testify about the text messages, in order to demonstrate that drug sales did occur.  In other words, the prosecution was using the text messages as proof of the crime itself.  For this reason, the Supreme Court reversed, because the text messages were some of the only proof against the defendant and they should have been inadmissible as evidence.

In family law cases, judges sometimes demonstrate a lax approach to evidentiary rules.  If you plan on using text messages as evidence, be prepared to do the following:

1 - Print out the complete text message chain with proof of the sender and receiver.  If your name or telephone number is clearly visible on the printout, this can help prove the sender and/or receiver.

2 - Make sure you can prove the date and time that the messages were sent and received.

3 - If you do not know how to print out text messages, call your cell phone provider.

4 - Always be extremely careful about what you write in text messages, and remember that one day a judge may read it.

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

Monday, April 13, 2015

Preparing for an appraisal

Trying to determine the value of the marital home often can be a sticking point during the equitable distribution process of divorce.  If the parties are not selling the home, which would create a “value” for the home upon the sale of the home, then the parties must agree or have a court decide on the value of the home.  Sometimes, the parties can agree; however, the parties often have various motivations for either wanting a high or low value for the home.  Therefore, at times, a formal appraisal is necessary.

During an appraisal, a third-party expert assesses the property and determines a fair market value for the property based on many factors.  The factors include: location, size, features and  finishes (like flooring and countertops), the sales of recent comparable homes in the neighborhood, etc.  Many times, people do not spend much time preparing for an appraisal because they think that the appraiser is a neutral professional, who will not care whether the house is perfectly in order and freshly cleaned.  In theory, that might be true.  However, in practicality, appraisers fall susceptible to the same tricks as potential homebuyers.  Having a fresh, clean, de-cluttered and organized home can influence the appraiser into providing a higher value.  Likewise, you can try to do some of the homework for the appraiser.  If you know that other similar homes in your neighborhood have sold, you can find those listings for the appraiser and point them out.  Lastly, be armed with information about any improvements that you have made to the house since you purchased it.  

The more information that you can provide to the appraiser, the better and the more likely it will be that you will obtain a higher value on your appraisal.  For many people, the appraisal value of a home can impact equitable distribution far more than any other asset for the simple reason that it is often the largest asset that parties own.  Therefore, taking seriously the appraisal process will only help you obtain an accurate fair market value of your home.

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

Thursday, April 09, 2015

What do I have to prove to get a New Jersey restraining order?

In New Jersey, there are several things that a plaintiff must prove in order to obtain a final restraining order.  In the recent unpublished case, K.M. v. J.P.C., the Superior Court of New Jersey outlined the factors that a plaintiff must be able to prove.

First, the parties must be involved in a type of relationship (for example a boyfriend and girlfriend) that would make the party eligible to receive protection under the Prevention of Domestic Violence Act.  Next, the defendant must have committed an act as designated by the Act.  Lastly, the court must find that, under the factors outlined by the Act, the restraining order is necessary “to protect the victim from an immediate danger or to prevent further abuse.”

In K.M. v. J.P.C., the court found that a final restraining order was appropriate where the plaintiff’s ex-boyfriend sent her harassing and threatening text messages and communications over the course of several months upon learning that she was involved in a new relationship.  The court noted that not all vile outbursts would warrant a final restraining order, but the fact that the communications had occurred over a period of time and had become increasingly threatening were reasons enough to grant the order.

Click here for a handout from New Jersey Courts Family Practice Division for some more helpful information.  More importantly though, if you are in a situation where you do not feel safe or feel threatened, you must remember to protect your own safety.  It is appropriate to call the police when you feel that you are in an unsafe situation.  Then, after you are in a safe location, you can contact an attorney to discuss your options.

On the other hand, filing for a restraining order under the Prevention of Domestic Violence Act when your case does not meet the factors required can be disruptive, expensive and harm the opposing party’s opportunities for employment if it shows up in a background check.  The Prevention of Domestic Violence Act is an important tool to protect victims of abuse, but it should not be frivolously used a strategy tool in a divorce or custody situation.

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

Monday, April 06, 2015

Why include a non-disparagement clause in a custody agreement?

Even in situations where parents are able to cooperate and reach a custody agreement in the best interests of their children, there can be high levels of animosity between the parents.  This often leads to negative talk about the other parent.  Negative or disparaging comments about the other parent are rarely productive, and they are absolutely harmful when heard by the parties’ children.  Not only is it harmful for a child to believe or know that one parent thinks ill of the other parent, but it is also harmful because a child often internalizes these comments.  In other words, children often wonder whether the parent thinks ill of them, because they share characteristics with the other parent.  After all, half of the child’s DNA comes from each parent.

Therefore, in the best interests of the children, it is important for a parent to never speak of the other parent in a negative way in front of the children.  Likewise, it is important for other family members, such as grandparents or step-parents, to stick with this rule as well.  In an effort to assist with this goal, we always encourage or insist that parents include a non-disparagement clause in a custody agreement.  The clause simply requires that neither parent nor any other person, such as a grandparent, speak negatively about the other parent in the presence of the children.

Sometimes we have parents respond by stating that they are not going to lie to their children.  In short, they mean that they are not going to hold back on the negative comments about the other parent, if they view the comments as the truth.  Unfortunately, this approach simply does not help a child.  We are not suggesting that you must lie about your feelings.  Rather, it is sometimes better to stick with the age-old advice - “if you have nothing nice to say, don’t say anything at all.”

These clauses are designed with the sole purpose of protecting the best interests of the children subject to the custody agreement.  It is a clause that is particularly difficult to defend in court, because proof is extremely difficult to obtain.  That said, it is a reminder to both parents to stay on their best behavior in front of their children.  Likewise, it also encourages parents to take a better attitude about the other parent, which can, in turn, facilitate better relationships between the parents.

Finally, three of the sixteen factors in the Pennsylvania custody statute address the ability of parents to cooperate.  Factor 1 requires courts to consider “which party is more likely to encourage and permit frequent and continuing contact between the child and the other party.”  Factor 8 requires the court to consider whether one of the parents attempts to “turn the child against the other parent.”  Factor 13 requires the court to evaluate the level of conflict between the parties.  Accordingly, should you choose to display animosity and toxic behavior toward the other parent, you could affect your own custody rights.

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

Thursday, April 02, 2015

The circumstances have changed, shouldn’t custody change too?

A recent, non-binding Pennsylvania custody case, H.M. v. J.D. discusses the intersection of changes in circumstances and changes in custody.  In that case, Mother and Father shared legal custody, and Mother had primary physical custody with Father having partial physical custody.  After the initial custody order was entered, Father obtained a new job, which gave him more flexible work hours and more hours available to be with Child.  Father then petitioned for a modification of custody so that he could share physical custody with Mother.

In essence, Father argued that the change in circumstances demanded that there be a change in custody, in particular because he had made pro-active changes which allowed him to be more available to the Child.  However, the court takes the opportunity to emphasize that changes in custody simply do not work that way.  While a change in custody may be appropriate after a change in circumstances has occurred, the change in circumstances alone is not enough to demand a change.  Rather, the court still must make a decision based on the best interests of the child.  When making the best interests decision, the court must analyze the sixteen custody factors that are enumerated in Pennsylvania law.  

In H.M., the appellate court found that the trial court made an appropriate, well-reasoned custody decision based on a thorough analysis of the sixteen factors.  The trial court found that no change in custody should occur, because it was in the child’s best interests to continue the same custody schedule for the sake of stability and continuity.  Furthermore, additional factors supported the trial court’s decision to keep the same custody arrangement in an effort to nurture and protect the child’s best interests.

Ultimately, the main role of the trial court in a custody case is to try to reach a decision that will protect the child’s best interests.  Sometimes that means that the custody arrangement should change when there has been a change in circumstances, but many other times, no change is warranted.  While a change in circumstances may be an impetus for a parent to seek a change in custody, the court may not agree, unless those changed circumstances impact the child’s best interests.

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

Monday, March 30, 2015

Filing your taxes

Benjamin Franklin once said, “In this world nothing can be said to be certain, except death and taxes.”  In this season of filing taxes, it is important to remember that filing your taxes is a sometimes unpleasant but necessary task.  

If you have not yet filed your taxes for the year or you have lingering past tax issues, go ahead and take action now.  Simply ignoring any lingering issues or problems will only allow those issues (and any associated fines and penalties) to grow and fester.  These problems often are magnified to an even greater extent during a divorce, and it can make an otherwise easy divorce extremely tricky to resolve.  Likewise, if you do not normally participate in the process of filing of your taxes, this is the year to take ownership and make sure you understand the tax return that you are filing, rather than simply allowing your spouse to do it for you.

If you have any questions or already have received notices or communications from the IRS, you should contact a qualified tax attorney and/or accountant to help guide you through your questions.  In conjunction with working with a tax professional, you can reference the IRS Publication 504 for Divorced and Separated Individuals for helpful information regarding filing your taxes.  This handout answers many questions that divorced and separated taxpayers may have.  In particular, it addresses who can claim an exemption for a dependent child, which is a question that frequently arises.  Additionally, a taxpayer can also complete IRS Form 8332, which allows the party that has the right to claim an exemption for a child to waive that right, so that the noncustodial or other party can claim the exemption.  Again, if you have questions, you should contact an accountant or attorney regarding these issues.

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

Thursday, March 26, 2015

Will I be successful on an appeal of a custody order?

In most cases, when a custody order is issued by a trial court and then appealed by a party, the standard of review at the appellate court is an abuse of discretion.  This means that in order for the appellate court to overturn the trial court’s opinion, the appellate court must decide that trial court abused its discretion, in other words reached a conclusion that could not be based on the facts or evidence.  As a recent non-precedential (meaning that other courts are not bound by the decision) Pennsylvania decision, C.A.W. v. M.K. demonstrates, it is extremely difficult to prove an abuse of discretion.

In C.A.W. the parties were involved in extensive litigation regarding custody, and ultimately, the trial court ordered that Mother should have primary physical custody and Father should have partial physical custody.  Mother and Father each made many arguments using the many enumerated statutory custody factors.  The trial court examined the evidence regarding each factor, and explained its decision in the context of each factor.  On appeal, Father argued that the trial court was wrong in its analysis of the factors based on the evidence and testimony.

When an appellate court reviews a case and the standard of review is an abuse of discretion, it is not simply a question of whether the trial court is “wrong.”  Rather, there must have been no way possible for the trial court to reach its opinion based on the evidence.  For example, Father argued that the trial court was wrong in stating that the child expressed a desire for “50/50” custody and that the phrasing used by the child raised concern that the child had been coached.  In reviewing the transcript from the interview with the child, the child did not use that specific phrase.  In short, the trial court made a mistake.  However, the appellate court found that this mistake was a small error and was balanced by the trial court’s overall analysis.  In other words, a small, technical mistake on the part of the trial court may not be enough to overturn an opinion, especially when there are other reasons to support the trial court’s decision.

The appellate court in C.A.W. provides a nice, detailed review of the trial court’s decision, and in the process illustrates what a difficult standard of review abuse of discretion can be.  Before deciding to appeal a decision, litigants should consult attorneys experienced in this area of law to help analyze the likelihood of success on appeal.

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

Monday, March 23, 2015

What is arbitration?

When a married couple decides to divorce, there are a few different routes that the parties can take to resolve economic issues.  They can reach an agreement and sign a settlement, perhaps on their own, through their attorneys or with the help of mediation.  The parties can use traditional litigation methods and utilize the court system.  Lastly, parties can choose to arbitrate their divorce.  Notably, arbitration is not used to resolve custody issues.

Like traditional litigation, parties who use arbitration are “litigating” their issues, and they usually are not actively working together to reach a solution.  However, unlike traditional litigation, the courts are not involved.  Instead, the parties select and agree to the use of an arbitrator.  The arbitrator is typically a highly experienced and knowledgeable attorney.  By agreeing to arbitration, the parties are in agreement that the neutral, third-party arbitrator is allowed to resolve their pending issues, in lieu of litigating in court.  The decision of an arbitrator is binding in the same way that the decision of a court is binding, and usually, by agreement of the parties, is non-appealable.

When using traditional litigation, there are filing fees for some types of pleadings; however, the parties do not have to pay the court for the judge’s time.  In contrast, the arbitrator is typically paid by the hour, like an attorney.  Therefore, arbitration may not be a feasible option for parties with limited financial resources.  However, there are significant benefits to arbitration.  In many cases, arbitration can actually be less expensive than litigation, even though you must pay the arbitrator.  The efficiency of arbitration often results in significantly less attorney fees.  

Complex cases - where there are many assets and/or debts - sometimes can be drawn out for years in the court system.  This is in part because the court system is so heavily burdened by a large number of cases that most judges simply do not have time to learn the ins and outs of each case.  In contrast, an arbitrator is paid to learn everything about a case through the submissions of the parties.  Therefore, in cases where things are not straight-forward, like where one party owns a small business or where the parties own numerous assets and bank accounts, an arbitrator is often better able to more quickly understand what exactly is happening in a case.

Arbitration can be a great option for parties who want a stream-lined process, where the decision-maker has a great likelihood of understanding the nuances of their case.  If you have questions about arbitration and whether your case would be well-suited for arbitration, you should contact an attorney to discuss your options.

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

Thursday, March 19, 2015

When will a court impute an earning capacity?

In some cases, it is easy for a court to calculate child and spousal support, because each party earns a steady, predictable income based on appropriate employment.  However, in many cases, it can be debated whether a party should be or could be earning more money through employment.

The recent non-precedential (which means that it is not binding on other courts) Pennsylvania case of Master v. Master does a nice job of both explaining what earning capacity is and providing examples of when a higher earning capacity may be assessed.  Earning capacity is the idea that based on the age, education, health, work experience, training and childcare responsibilities of an individual, that individual may be able to earn an income different than what he or she currently earns, and that the “earning capacity” of the individual should be substituted for his or her actual income when calculating support.

In the Master case, earning capacity was at issue for both Mother and Father.  Mother had a bachelors degree in education, and earned approximately $17,000 per year as a manager at a daycare.  Based on Father’s arguments, the trial court assessed Mother an earning capacity of approximately $42,000 per year, which was what an entry level elementary school teacher could earn.  The appellate court reversed the trial court because there was no evidence in the record that Mother had the necessary work experience to obtain that job, that applicable jobs were available, etc.  In other words, there needed to be some evidence available that Mother actually could obtain the job for which she was being assessed an earning capacity.  Simply saying that she had a degree that might allow her to obtain the job was not enough.

Father was a heavy equipment construction worker, and Mother argued that he should be assessed a higher earning capacity because his income should be calculated at full-time hours at a higher per hour wage.  The appellate court found that this argument failed, because Father presented clear evidence that he, as a union worker, could not work the full-time hours suggested by Mother, because the work simply was not available.  Therefore, even though he was not working full-time, and in theory “should” be working full time, the court found that his work was not amenable to full-time work, and therefore he should not be assessed a higher earning capacity.

Whether a higher earning capacity will be assessed for a party is a highly fact-specific determination.  The court must look at whether the party given his or her age, education, health, work experience, training, childcare responsibilities and potentially other factors should be earning a higher income for the purposes of calculating child support.  If you have questions about earning capacity you should contact an attorney.  In addition to analyzing the likelihood of a higher earning capacity, litigants should perform a cost/benefits analysis on the sought after result.  In other words, even if you prove the higher earning capacity, would it change the support enough to justify the cost of litigation?

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

Monday, March 16, 2015

Tips for custody transitions

Everyone knows that custody transitions are difficult for children because they are dividing their lives between two homes.  As adults, we know that it is difficult, but if we ourselves did not go through a similar experience, then sometimes we do not think about the practicalities of why it is difficult.

Think back to the last time you went on vacation or spent the night away from home.  I’ve never met anyone who loves to pack and most people dislike unpacking even more.  How many times have you forgotten a toothbrush, a prescription medication, a book that you meant to bring with you or your favorite comfort item, like a pillow or blanket?  This can be a common occurrence for children dividing time between homes, but there are ways to help make these transitions easier for children.  Here are some of our favorite tips:

  1. Make sure that the child has everyday necessities at each parent’s house.  This includes everyday toiletries, and to the extent possible, other items like medications.  Try to collaborate with the other parent to divide recurring prescription medications so that they do not have to travel between houses.

  1. Each parent should have an appropriate amount of clothes for the child at his or her house.  Only special items, like a gym uniform or special outfit, should have to travel between homes.  Even when finances are tight, a child should not have to worry about bringing underwear and socks between houses.  To the extent possible, each parent should have at least a minimal amount of seasonally appropriate clothing for a child.  So many times we see parents fighting about winter coats, or similar items, because of the high cost of the item.  Try to remember however that the child needs the coat to remain safe and warm, and holding the coat hostage at your home, simply because you purchased it, does not help your child.

  1. Communicate with the other parent about homework assignments, parent-teacher conferences, big (and small) life events that occur during your custody time, upcoming activities or field trips, etc.  When a parent does not communicate to the other parent information that they learn during their time with the child, typically the only person hurt is the child.  It estranges the other parent from the child’s life, and potentially causes a negative impact on the child by forgetting homework or permissions slips, for example.

  1. Keep a color-coded custody calendar in your home so that your child can visualize and understand where he or she will be for certain events.  Make mom’s days one color and dad’s days a different color.

  1. Be on time.  It only creates stress for you, the other parent, and your children when you are late for a custody exchange.  It unfairly chips away at time that the other parent should be spending with the child.  It almost always creates stress, resentment and tension during and after the exchanges.  Simply being respectful of your child’s time with the other parent is a good way to create and foster a positive relationship with your child’s other parent.

  1. Keep a log or calendar of custody time so that you have accurate notes of when your child was with you, if custody times were cancelled or if other problems occurred.  This will help if you ever have to return to court.

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

Thursday, March 12, 2015

Sometimes, the appellate court’s hands are tied

As a court of equity, family law courts aim to reach fair results, but as anyone who has been a litigant in family court knows, justice can be elusive.  Sometimes there is not enough evidence, sometimes parties lie or do not follow the rules and get away with it, sometimes mistakes are made, and sometimes it is because when in a court of law there are specific rules that must be followed according to the law.  Of course, sometimes the judge simply reaches the wrong result.

In the recent Pennsylvania case, Tecce v. Hally, rather than conduct a hearing with evidence, witnesses, and attorneys asking questions, the judge allowed it to become a free-for-all.  In that case, the parties were litigating various equitable distribution claims. The court and the attorneys did not follow the strict rules of judicial procedure.  For example, the witnesses were not sworn in prior to providing testimony, which means, in effect, that they did not really give testimony.  The judge allowed the attorneys to, in effect, testify and did not allow for cross-examination.

The appellate court outlined and recognized all of the many problems that occurred at the trial court level.  However, the appellate court’s hands were tied, and they were not able to demand that the trial court fix the problems, because no one objected to how the hearing was being conducted.  When no one objects, then there is no basis for appeal.  Even if the judge or lawyers make egregious errors, someone must object to preserve the issue for appeal.

If you are currently involved in litigation, this lesson is an important one for you.  When you are in court, your attorney is working - for you.  Let your attorney do his or her job.  Try to listen to her closely and follow her directions.  Do not interrupt your attorney, because she is trying to pay attention and properly perform her job, objecting when necessary and preserving the record.  The outcome of your case could depend on the technicalities of litigation, and you need to help your attorney do her best while in court.  If you choose not to have an attorney represent you, understand that, unless you make a proper record, you may not be able to appeal later.

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

Monday, March 09, 2015

How do I serve a defendant?

When you file a divorce complaint, or other types of legal actions, you must “serve” the defendant with a copy of the documents.  This requirement is to protect the defendant and to make sure that the defendant is aware of the litigation.  Without this requirement, it might be possible for a plaintiff, for example, to obtain a divorce without ever telling the defendant.  The courts want to make sure that does not happen.

Ways to make service:

Process Server or Sheriff - part of this person’s job is to personally serve documents on defendants.  This means that in exchange for payment made by the plaintiff the process server physically hands the documents to the defendant or the defendant’s agent.  Then, the process server will sign an affidavit that provides information regarding when and where the documents were provided to defendant.  The cost of a process server can be $75 to $150, or more if the defendant eludes service.

Acceptance - an agreeable and cooperative defendant also may agree to accept service, either personally or through his or her attorney.  In this case, the defendant or attorney would sign an affidavit acknowledging that he or she received the documents.  This happens in most divorce cases.

Certified Mail - in certain circumstances, a plaintiff can properly serve the defendant via mail when using certified mail (the green card).  Using certified mail requires that the defendant must sign for the mail when delivered, and therefore guarantees that the defendant actually receives the mail.  However, sometimes the defendant refuses to sign the green card and therefore the plaintiff cannot prove service.  It is often preferable to make service either through personal service or acceptance.  Therefore, if you want to use this method, you should discuss it with an attorney.

Alternate Service With Leave of Court - sometimes there are ways to serve the defendant other than the ways listed above; however, typically you will need permission from the court.  Additionally, it is likely that we will see email and social media taking a stronger role in providing service in the future, but for now, it is still undecided territory, and courts are still not sure how they feel about it.  Alternate service is a last resort.

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

Thursday, March 05, 2015

What to do when a Property Settlement Agreement is not clear

In many cases, divorcing couples are able to reach an agreement to settle all of the pending issues in their divorce, rather than litigating the issues.  This means that the parties are in charge of the outcome of their case, instead of letting a judge make the decision.  That said, drafting Property Settlement Agreements (“PSA”) or Postnuptial Agreements can be difficult, especially when the parties have different understandings of what the language in the agreement means.  The most difficult part of drafting an agreement is anticipating events that may or may not occur in the future.

The recent non-precedential (in other words not binding on other courts) New Jersey case of Paintsil v. Oppong-Manu highlights the difficulties of drafting a PSA, particularly when a marital house or other real property is involved.  Particularly in recent years, it has been virtually impossible to ascertain what the future value of a home may be.  Some homes have gained value, some homes have maintained a similar value and many homes have lost value.  When negotiating a PSA, if the parties are not going to sell the home, then they usually must agree on a value of the home for the purposes of equitable distribution.  The Paintsil case highlights the problems that can arise from making these predictions, because often the home loses value and then the agreement might be unclear on how the parties should proceed.  In this particular case, the appellate court found that a hearing was necessary so that the trial court could hear testimony regarding what each party thought should have happened according to the terms of the agreement.

When negotiating a PSA, it is important for parties to remember that it is impossible to completely anticipate and plan for all events that may happen in the future.  Therefore, it is important to resolve with finality as much as possible at the conclusion of the divorce, rather than waiting to resolve some issues in the future.  When it is not possible to resolve everything at the time of the divorce, the parties should try to find ways to reach a resolution in a way that requires both parties to share in the potential future benefits and risks.  That way, one party does not gain a windfall or conversely is not penalized when an unexpected event occurs in the future.

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

Monday, March 02, 2015

What is equitable?

In Pennsylvania, we have what is known as equitable distribution of marital assets and debts during the resolution of a divorce.  Equitable is not the same thing as equal.  Many people visit our office for the first time and believe that assets (often forgetting debts) should be divided an equal 50/50 between the parties.  Sometimes this is true; however, many times it is not.  An equitable distribution tries to achieve a distribution that is fair to each party, and sometimes it is not fair for the parties to equally share in the assets and debts of a marriage.

Pennsylvania statutes clearly list numerous factors that courts consider when dividing assets and debts.  For example, a court may decide that equity demands that a spouse receive more assets at the resolution of a divorce to balance the fact that the spouse has a lower earning capacity.  It is the court’s responsibility to look at all of the facts in a particular situation, and weigh them against each other when making a decision.  Additionally, the court simultaneously makes a decision, using many factors, on whether alimony should be granted.  Part of a court’s decision regarding alimony may be influenced by whether a spouse will receive a large amount of assets in equitable distribution.

A recent non-binding Pennsylvania case Waterstone v. Waterstone examines how these factors influence a decision on equitable distribution and how that interacts with alimony decisions.  One thing that this case highlights is that each party and the courts may have vastly different ideas of what is “equitable” in a particular situation.  Both the trial court and the appellate court looked to the many factors at play, and carefully considered the parties’ concerns.  There is no one right way to reach an equitable outcome.  For example, in this case, the alimony award was impacted by the equitable distribution award.  A different court may have decided that a more equal (50/50) equitable distribution award should have been awarded, and then may have increased the alimony payment; however, the important thing to note is that the appellate court could not say that one is better than the other.  As long as the court uses the factors and does not abuse its discretion (in other words, make a decision so out of whack with reality), then the trial court’s decision will likely stand.

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

Thursday, February 26, 2015

Courts have significant authority to deviate from support guidelines

In Pennsylvania, we have child support guidelines that essentially operate as a formula in order to determine how much child support should be paid.  The formula takes into account how much income each party earns and how many children there are.  Additionally, it looks at how much custody time each parent has and whether there are health insurance or school or child care costs, along with some other factors.  Based on this information, the formula calculates how much child support is owed.  However, the formula cannot take into account all of the nuances that exist in various families’ lives.  Therefore, in some situations the courts are allowed to deviate from the guidelines in order to account for those unique issues.

The recent non-precedential (in other words, not binding on future courts) Pennsylvania case of Sallustio v. Mercer discusses a trial court’s decision to deviate from the guidelines in order to account for an almost shared custody arrangement.  In many cases where the parties share physical custody of the children, neither party pays the other party child support, unless one parent earns more than the other parent.  However, if the arrangement is almost-but-not-quite shared custody, then the guidelines still require a party to pay support.  In this particular case, the judge clearly analyzed and reviewed the situation when calculating how and why a deviation was fair.  

Therefore, it is important to remember that a judge always has the ability to deviate from the child support guidelines within the limits of the law, particularly if the judge adequately and thoroughly explains the rationale behind the decision to deviate.  This consideration is particularly important to remember when discussing a potential settlement regarding child support.  Sometimes you may do better by taking your case to the judge, rather than settling the support based on the guidelines; however, it is important to remember that you also could do worse.  You should discuss the merits of your particular case with an attorney.

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