Wednesday, February 03, 2016

It is almost time for the tax man . . .

Tips, Tricks and Resources for Tax Time.   Be sure to check with a qualified accountant and your attorney to make sure you are making the correct tax decisions.

Did you adopt during 2015?
If you adopted a child in 2015 but have not yet finalized and therefore have no social security number for your child, you may be able to obtain an Adoption Taxpayer Identification Number (ATIN) --- a temporary number to use for filing taxes.  Use IRS Form W-7 to request the number.  Review the instructions here.

Can we agree on who will claim our child?
If you and the other parent of your child have an agreement as to who will claim the child as a tax deduction, make sure to have the Form 8332 completed and signed - and submit with your tax return.

I have general questions!
Each year, the IRS updates Publication 504: Divorced and Separated Individuals, a great resource for all types of tax questions for separated families.

What is my filing status?
Should you file married, separately, head of household . . . ?The IRS provides a handy online questionnaire to determine your filing status.  Check it out here.

Monday, January 18, 2016

Monday, January 04, 2016

Pennsylvania Superior Court Revisits Paternity by Estoppel

When does the court allow a paternity test?
Sounds like a simple question - you either are the father or are not the father - and a blood test comparing a father's DNA with a child's DNA will prove it.  However, in the realm of Child Support and Child Custody, paternity law gets a bit more complicated.

Paternity by estoppel is a legal doctrine wherein a party (an alleged father) can be estopped or prevented from denying a particular fact due to that party's previous conducts or actions.  Essentially, if you say that you are someone's father, act like someone's father and generally fill the role of someone's father, if you later find out you are not that person's biological father using a scientific test, you are prevented from being relieved of your obligations - including child support.  This doctrine came about as society looked out for the best interests of the child ---- if the child believes that a certain person is his father, and that person acted like a father for a certain period of time, then that person is the father.  Generally, the question arises in child support cases --- a man is paying child support for a child, after a break up with the mother, and gets an idea that maybe the child is not his.  If he can prove it - can he stop the child support?  If the doctrine of paternity by estoppel is evoked, the answer is no.

A few years ago, the Pennsylvania Superior Court shook up this doctrine a bit, opining, " [P]aternity by estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interests of the involved child." K.E.M. v. P.C.S. 38 A3d 798 (Pa 2012).  Today, the Pennsylvania Superior Court issued another opinion on the subject.  In M.L. v. J.G.M., 2015 Super 1, the Court, in reviewing a case wherein a mother objected to a blood test requested by her ex-husband, said that the lower court must first determine whether the doctrine of paternity by estoppel applies, before ordering a paternity test.

In M.L. v. J.G.M., Mother and Father married in 2001 and had a daughter in 2005, separating in 2011.  In 2013, Father performed a home "DNA' test which revealed, he believed, that he was not the girl's biological father. (The results of these home "DNA" test are no admissible in court due to their potential unreliability.  If an alleged father wants a definitive determination in Pennsylvania, he must had a DNA test administered by the court -- and if the mother and/or the child will not comply, the father needs a court order). 

Home "DNA" tests are generally not admissible in court.
Notably, this child was eight years old by the time Father administered the home test.  Father filed a Petition to Terminate Support and stopped seeing the child.  He requested that the court order a paternity test.  Mother appealed and, as noted above, the Superior Court opined that the trial court must evaluate whether the doctrine of paternity by estoppel applied.

This case has no winners.  An eight year old no longer has a relationship with the man she thought was her father - and he is attempting to obtain a court order, declaring not only that he is not her father, but that he does not have to support her.  The opinion does not address whether another potential father has been identified, but even if he is found, he has missed out on this girl's childhood.

The trial court, in revisiting this issue, could still order that Father pay support and be the child's legal father.  If so, he will most likely do so grudgingly and while this little girl will receive financial support of some kind in that instance, she will not have the love, affection and other benefits of a relationship with her father.

Friday, December 25, 2015

Merry Christmas

Happy Holidays! Merry Christmas! 

Monday, December 21, 2015

What if your child calls your ex's new spouse/significant other "mom" or "dad?"

If your child calls your ex-husband's new wife/girlfriend, "Mom," can you ask a court to stop that behavior?  What if your child calls your ex'wife's new husband/boyfriend, "Dad?"

These questions crop up periodically in custody cases and can cause extremely hurt feelings and expensive litigation.  Generally speaking, most courts in Pennsylvania and New Jersey discourage the practice, even sometimes ordering that the child not refer to anyone other than the natural parents as "Mom" and "Dad."  Recently, in New Jersey, a trial court judge, in the case of B.S. v. T.S., Ocean County, NJ, can be instances when it is OK for a child to address a step-parent with the "Mom" or "Dad" moniker (or a derivative thereof), over the other parent's objection.  Notably, the court stressed that the choice was the child's, not the parents' and the child must be reasonably mature enough to make the decision.  Additionally, the behavior must be a natural progression of the child's and not due to encouragement of the step-parent or parent.  You can read the entire opinion here.

This opinion does not change New Jersey law or even set precedent.  However, the court's analysis provides some guidance for litigants.  Bottomline:  Do not encourage this behavior but if it happens naturally, some, but not all, judges might be OK with it.


Wednesday, December 16, 2015

This year's Christmas card

Every year, for our Christmas card, we find a way to incorporate Philly's famous Love statue.  For a sample of previous year's cards, click here or check out the slideshow on the left side of the blog.

As always, Dominic Episcopo photographed and produced our card.

Peas, Love & Hops E Nest

Wishing you Peace, Love & Happiness.
Merry Christmas.
Happy Holidays.
Happy New Year.

Extra special thanks to Dominic Episcopo for finding and photographing actual Philly grown hops! Buy Dominic's book: Meat America.

Monday, December 14, 2015

Who inherits from your child?

Generally, when a minor child dies, the parents inherit the estate, if any.  Most minors do not hold property in their own right so children do not usually have an estate unless they die as a result of an accident or medical malpractice and someone sues on behalf of their estate.

In a recent New Jersey case. a child of divorced parents died at the age of 15, apparently as a result of medical malpractice.  Mother had sole custody since the child was six years old and Father had been prohibited from seeing the child unless he enrolled in counselling, anger management therapy and risk assessment, which he never completed.  Accordingly, Mother obtained a restraining order against Father with regard to their son, and that restraining order remained in place until the child dies.

Father continued to pay child support and, when Mother offered to terminate the child support in exchange for Father terminating his parental rights, he refused, insisting he wanted a relationship with his son.  Unfortunately, Father never took the steps necessary to build that relationship.  He continued to pay child support but was eventually successful in getting his child support order terminated due to what he alleged were serious health issues.  Although he did not have a current order, he continued to pay towards the child support arrears that he owed.

Father saw his son on the beach one day and spoke to him until Mother intervened.  He also had some limited contact with him on social media.  Other than that, the child had no connection to Father.

Mother eventually filed a motion, requesting that the Court compel Father to apply for Social Security Disability benefits so that their son could receive support therefrom.  Father did not oppose Mother's motion and the Court granted it.  Tragically, their son died that day. Father attended the funeral but refused to help Mother pay for it.

In the course of administering their son's estate, Mother filed a motion, requesting that Father be barred from receiving a share of his son's estate, on the basis that he willfully abandoned his son during his lifetime and therefore should not inherit from him.

The trial court granted Mother's motion, relying on the dictionary definition of "willful."  Father appealed and the Appellate Court overturned, interpreting the meaning of the statute utilizing caselaw, opining:

[I]n order for a  court to conclude that a parent has 'abandoned' his or her child 'by willfully forsaking' him or her under [the statute], the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child. (emphasis in original). In the Matter of the Estate of Michael D. Fisher, II, Superior Court of New Jersey, Docket no. A-0878-14T2, December 11, 2015.
Accordingly, Father prevailed and absent an appeal to the New Jersey Supreme Court, will inherit from his son.  No one wins here.  Both parents lost their child.  Mother, who clearly raised this child without Father, must share he son's estate with the Father who barely involved himself in his son's life, refused the opportunity to build any relationship with his son via counselling and other tools the court made available and would not even contribute to his own son's funeral costs.  You can read the full opinion here.

Monday, December 07, 2015

Name Change of Minor

Read about an interesting case from Allegheny County, Pennsylvania.  The Biological Father Petition to have the child's last name change to his own last name, rather than the Biological Mother's Husband's last name.  Mother preferred that the child have her husband's last name, even though she separated and divorce her husband.  Father prevailed at the trial court and also at the Appellate Court.  Read the case here.

Friday, November 27, 2015

Pennsylvania Child Support Deviation Factors: Relative Assets of the Parties

In Pennsylvania, child support obligations are initially calculated with a formula set forth in Pa. Rule 1910.16-4. The court inputs values for each party’s income, the number of children, and the custody schedule, and the formula calculates an initial number. There is a rebuttable presumption that the number calculated by the formula is correct but the Court can then adjust the child support number up or down based on the deviation factors set out in Pa. Rule 1910.16-5(b). One of these factors is “the relative assets and liabilities of the parties.”

This factor usually comes into play where one of the parties has significant assets that are not reflected in that party’s income. In a recent Pennsylvania Superior Court case, E.R.L. v. C.K.L. 2015 Pa. Super. 220, Father had an income of approximately $75,000 as a police officer, but had inherited $600,000 while the support litigation was pending. In recognition of Father’s substantial inheritance, the Court deviated from the guideline amount and ordered a number that would have been appropriate for seven children, even though the parties only had three children. Additionally, the Court ordered Father to pay for the children’s extracurricular activities.

The Father in E.R.L. v. C.K.L. appealed, arguing that the Trial Court should not force him to “invade the corpus of his inheritance.” However, the Pennsylvania Superior Court, after reviewing the Trial Court’s decision, determined that “Father’s inheritance affects his financial obligations by making more income available for support” and “an upward deviation. . . is appropriate for the best interest of the children.” Even though Father characterized the deviation as “support for seven children,” the trial court arrived at the numbers by reviewing the children’s reasonable needs.

Litigants should be aware that significant non-income assets may be considered in child support determinations. While Courts are generally hesitant to apply deviation factors, a significant liquid asset, such as a hefty inheritance, could persuade the Court to increase a child support obligation.

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, November 25, 2015

What if my ex-spouse refuses to refinance the house?

When divorcing, deciding what to do with the former marital home transcends mere economic questions.  Selling a house could mean that the children must transfer schools --- an added stress parents might want to postpone for children still dealing with their parents' break-up.  Sometimes one of the spouses simply cannot afford to purchase a new home - due to poor credit, lack of a down payment, or insufficient income.

People going through a divorce just want to get it done.  Sometimes, that means getting a divorce while both spouses still own the former marital home.  Both spouses are liable on the mortgage and both spouses are owners on the deed --- but one spouse moves out.  However, that spouse is still the part owner and part obligor of the home.

In these cases, parties usually agree that the spouse will refinance the mortgage or sell the home at some point in the future.  This way, the divorce can end and the parties can move on.  However, both spouses take a risk --- if one spouse gets sued or does not pay taxes, a lien can be placed against the spouse.  If mortgage payments are late, both spouses get dings on their credit report.  If the house needs major repairs, it can often become a liability.

When the problems inevitable crop up, the parties return to court, and spend more money relitigating what to do about the house.  Courts sometimes tend to let these matters drag on, not wanting to force one spouse to sell the house and uproot everyone.  Sometimes, no solution exists - the parties can attempt to sell the house - but no one wants to buy.  Or, the spouse still living there interferes with the sale process, by not cooperating with the showings, keeping the house clean and neat and or responding to the realtor.

A New Jersey Judge ordered a spouse to sell the former marital home.

Recently, a trial court in New Jersey addressed the dilemma of when a party maintained possession of the marital home following a divorce but then never refinanced to remove the other party from the mortgage.  You can read the opinion here. The judge analyzed the case and provided thoughtful commentary on the harm that can befall the parties from the failure to live up to an agreement to refinance the mortgage.  The judge ordered the spouse to sell the house and required her to pay the other spouse's attorneys' fees.

My advice is to complete the refinancing or sale of the marital home before the divorce is final.  If that is impractical or impossible, make sure your settlement agreement includes:

(1) a date certain when the spouse remaining in the residence will complete the refinancing.

(2) a requirement that the spouse seeking the refinancing keep the other spouse up to date with the entire process, including obtaining approval for the mortgage, so each spouse can maintain their expectations.

(3) because late mortgage payments can ruin credit, and it can take a month or longer to get into court (resulting in more missed mortgage payments), include a clause that the house must be placed for sale immediately in the event of a missed payment.

Additionally, before agreeing, make sure that a refinancing is even possible.  If the home has no equity and the spouse remaining there has little income or assets, you could just be delaying the inevitable.  If that is the case, face the reality and sell the house before the divorce.

Tuesday, November 24, 2015

How do I test if the other parent is drinking?

Alcohol consumption and abuse in custody cases can be one of the most difficult situations to monitor.  As the human body metabolizes alcohol quite quickly, a urine test a few days , or even a half a day after the incident usually would be clean.

Image result for alcohol

Researchers have developed a new test, known as the EtG (Ethyl Glucuronide) Alcohol Test.  Unlike regular urine tests, this detects the consumption of alcohol in the previous 80 to 84 hours.  You can read more about this test here and here.  Unfortunately, this test can be so sensitive that something as innocent as the use of hand sanitizer can present as a false positive.  Accordingly, parties must be very careful about interpreting the results.

Parents can also present breathalyzers to the other parents at custody exchanges.  However, confrontation between the parents at custody drop offs and pick ups can result in incredibly uncomfortable situations for the parents and the children.  I recently learned about a new breathalyzer that can send text message or email results to the other parent ---- much more discreet than having someone take a test at the curb while the kids are present.

Image result for alcohol tests

Substance abuse and parenting simply do not mix.  If you are the parent who is accused of having a problem, realize that you should do everything possible to build up the other parent's trust -- and demonstrate that you are sober.  If you are the parent who suspects the other parent has a problem, be as creative as possible in your requests for monitoring, while maintaining the other parent's dignity and privacy, to protect the children from being witness to the fighting and aggression.

Sunday, November 15, 2015

Agreements Not to Modify Alimony: Are They Enforceable?

Pennsylvania Family Courts strongly encourage litigants to resolve disputes themselves, allowing the litigants to negotiate an agreement, memorialize it in writing, and submit that agreement to the Court for filing as an Order. Sometimes, however, there is a question as to just how far the envelope can be pushed with out-of-court negotiations. Pennsylvania courts have drawn lines around child support, prohibiting the enforcement of agreements that contract for non-modifiable child support below the amount that would be required under the Pennsylvania Child Support Guidelines, or that simply prohibit modification at all. Alimony is a different story. The Superior Court of Pennsylvania recently affirmed a lower court’s decision to enforce the litigants’ contract for a non-modifiable alimony obligation.

In the case of Egan v. Egan, 2015 Pa. Super 213 (2015), the litigants signed a stipulation modifying the Husband’s court-ordered alimony obligation. One term of the stipulation was that the alimony obligation agreed to in the Stipulation would not be modifiable by the Court.

Several years later, after some financial hardship, the Husband petitioned the Court for the modification of the alimony stipulation, asserting that the stipulation fell under 23 Pa. C.S.A. §3701(e), which permits a trial court to modify alimony orders issued by that Court. However, the Wife filed an answer asserting that the stipulation fell under 23 Pa. C.S.A. §3501(c) , which prohibits courts from modifying agreements as to “disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses.”

The Court in Egan held that a stipulation modifying a court order with regard to alimony would be governed by Section 3501(c). The Husband then argued that Section 3501(c) applied only to comprehensive marital settlement plans, but the Court found no merit in his argument, and concluded that “[n]othing in the plain language of section 3501(c) prevents the private reordering of alimony obligations after a judicial alimony order has been entered.”

In Egan, the Court examined closely the language of the statutes, but also placed significant emphasis on the public policy of encouraging litigants to resolve their disagreements out of court, and the issue of insufficient judicial resources. The Court also found that the purpose behind Section 3501 (c) was the promotion of marital settlement agreements. Modifiability of alimony constitutes one aspect of the overall bargain between the parties. So that each party benefits from the bargain, a litigant cannot be concerned that the Court will later invalidate one part of the agreement.

In family matters, Court Orders and Stipulations regarding issues about children (custody or support) can be modified by a Court. Parents cannot negotiate away a child’s rights to support, so parents also cannot negotiate away the ability to modify a child support or custody order, should circumstances warrant.

On the other hand, if parties agree that alimony should not be modified, the Pennsylvania Courts will enforce that provision. This means that, even if your situation changes, your non-modifiable alimony obligation will remain intact. Accordingly, weigh all of the risks and benefits before agreeing to non-modifiable alimony. Additionally, parties should be aware of what could possibly be modified by the Court later, and what will be non-modifiable.

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, November 10, 2015

The reason I always recommend "curbside pickup"

Do not go into your ex's home, or let he or she enter yours, during children exchanges unless it is absolutely necessary and you are 100% sure everyone can be civil.  You could end up with a restraining order, a trial and an appeal, resulting in months and months and months of expensive litigation, police involvement, hard feelings and a generally chaotic life, like the couple in this case.

Avoid a potential fight, exchange your children at curbside!