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!

Monday, November 09, 2015

The Case of the Mattress that Started a *War*

Why "nesting" as a custody arrangement is a really bad idea . . .

A fight over one of these went to the Appellate Court of New Jersey

Sometime in 2014, a husband and wife, who lived in Morris County, New Jersey, and were separating, came up with the idea of having their children stay in the marital home, while the parents moved in and out.  When each parent cannot afford a separate residence to house all of their kids, divorcing parents sometimes come up with the clever idea to leave the kids in the house, then the parents take turns sleeping there.  On their off nights, the parents can sleep at their parents' home, a friend's, another relative's or even in a small apartment.  Parents think this is a great idea because the kids are not disrupted.  The concept is known as "nesting."

I rarely believe that nesting will be the correct arrangement.  In my experience, this plan causes way more trouble than is good for a family and can sometimes result in disputes that escalate to police involvement and usually lots of attorneys' fees.  If the parents could get along well enough to negotiate this type of arrangement, then they probably would not need a divorce.

I have horror stories from experiences of clients.  In one case, one of the spouses left the house so filthy (unflushed toilets, meat rotting on the counters, garbage everywhere) that the "nesting" plan was quickly terminated.  Other couples argue incessantly over who should pay the bills, such as utilities that perhaps one person uses more than the other.  Still others cannot establish any boundaries and are sorting through each other's clothes and private possessions.

Divorcing couples will lock horns over matters that may seem trivial to everyone else.

In the case of A.W. v M.W. out of Morris County, NJ, the parents were moving in and out of the marital residence every other day --- and each slept in the former marital bedroom on their night.  Wife learned that Husband was "entertaining" his girlfriend on his night and Wife was uncomfortable sleeping on the mattress where Husband did his entertaining.  She dragged the mattress to another bedroom, put a padlock on the door and left an air mattress in the marital bedroom for Husband to use.  She apparently was content to sleep on the former marital mattress, as long as she could prevent from Husband continuing to use it for his girlfriend.

Nothing brings out the drama like arguing over a mattress!

Calls to the police, arguments, breaking of padlocks, dragging the mattress around, hinges off of doors, climbing through windows, use of profanity, clothes thrown out the window and kicking of doors ensued.  Wife filed for a Restraining Order against Husband and prevailed at the trial level but Husband appealed and the Appellate Court reversed a year later.

No doubt it would have been cheaper and easier for every involved, especially the children, if one parent had stayed in the house and the other parent got another place, and the children moved back and forth between them.  Read the whole opinion here, for a lesson on how not to conduct your divorce.

Friday, November 06, 2015

Retroactive New Jersey Child Support: What You Need to Know

During the divorce process in New Jersey, one litigant often files a Divorce Complaint, including all of the usual ancillary claims (alimony, child support, custody, equitable distribution of assets and debts), long before those claims will be litigated. Parties often intend to negotiate some or all of these claims when the process begins, but, unfortunately, litigants cannot always reach an out-of-court settlement. Even where litigants decide to use only the Court system to resolve their disputes, crowded dockets can make the process slow and frustrating.

Because of the likely delay between the filing of the Divorce Complaint, and the actual determination of a litigant’s rights, New Jersey Courts often have to decide when an obligation should begin. In the case of Equitable Distribution, the New Jersey Court generally values assets and debts based on the date the Divorce Complaint was filed.  This way, neither side is prejudiced by delay in getting to court.  However, other claims, such as child support obligations, can be a little more complicated.

In New Jersey, child support orders are usually retroactive to the date the motion for establishment or modification of child support was filed. In a recent Trial Court Decision, Kakstys v. Stevens, FM-15-1199-14 (February 24, 2015), the Court held that, where a Divorce Complaint expressly included a claim for child support, the eventual child support award could be applied, retroactively, to the date the Divorce Complaint was filed and served.

The Court found the support for this decision primarily in similar, established patterns in New Jersey Family Courts. In Kakstys, the Court examines the way that assets and debts are valued for equitable distribution as of the date of the Complaint, and notes that awards of counsel fees are also retroactive to the beginning of divorce litigation.

The Court also discusses the public policy issues surrounding retroactivity of child support Orders. The court notes that there are many reasons why a custodial parent may wait to file a motion to establish child support. For example, the litigants may wish to avoid the time and expense involved in preparing the motion if there is still the possibility of negotiating a resolution. On the other hand, the litigants may simply wish to avoid escalating the litigation. Family Court is a court of equity that strongly favors out-of-court dispute resolution, and the Court in Kakstys notes that it would be unfair to force the litigants to file a motion just to preserve their rights to receive child support.

In deciding the Kakstys case the Court places great emphasis on the notice provided by the Divorce Complaint. The Defendant or Obligor is placed on notice of the outstanding child support claim by the Divorce Complaint, just as the litigant would be if he or she received a separate motion to establish child support. Further, the Court notes that an Obligor who wants child support issues decided quickly by the Court, may also file a motion to establish child support, and need not wait for the other litigant to make the first move.

Of course, the award of retroactive child support is a discretionary decision made by the court. In determining if child support should be awarded retroactively to the date of the Divorce Complaint, the Court will examine situational factors, such as whether the Obligor was making informal child support payments, or otherwise contributing to the children’s expenses during the time between the Divorce Complaint and the motion to establish child support. If informal child support payments can be clearly identified, the Court will most likely give the Obligor “credit” for such payments. The Court also notes that retroactive child support may not be warranted where the litigants shared a residence and jointly contributed to household expenses during the time between the filing of the Divorce Complaint and the motion to establish support.

This decision has a real monetary impact. In cases like Kakstys, where the motion to establish child support was filed approximately a year after the Divorce Complaint, this decision could award the Obligee an entire additional year of child support payments he or she would not otherwise be entitled to receive.

Litigants should always consider the possibility that retroactive child support could be awarded. Depending on the situation, it may be a litigant’s benefit to make informal child support payments even if child support has not yet been adjudicated. Alternatively, an Obligor who fears the unknown can always ask a Court to determine his or her child support obligation before the other party files a motion. No matter what your situation, always keep a record of any informal child support payments you make. This includes cancelled checks, receipts for direct expenses, or proof of credit card payments. Cash tends to be almost impossible to prove, so avoid giving cash to your ex. You most likely will not receive credit for it.

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

Thursday, November 05, 2015

Pennsylvania courts rarely terminate parental rights over the parent's objection

Parents sometimes remarry, start new lives, and then want their new spouse to step in and adopt their children, terminating the rights of the other parent.  In with the old, out with the new.  Not so fact, say the courts.

Like any adoption in Pennsylvania, step-parent adoption requires the termination of parental rights of the non-custodial biological parent. Parental rights can be terminated voluntarily, where the biological parent consents to termination, or involuntarily, through the Court system, after a hearing.

In Pennsylvania, involuntary termination of parental rights requires proof by clear and convincing evidence that (1) the parent has exhibited a settled purpose of relinquishing his or her parental claim, or has refused to perform parental duties for six months prior to the filing of a termination petition and (2) termination of parental rights is in the best interests of the child.  Additionally, and importantly, unless a step-parent is ready to adopt, a court will not terminate the rights of the other parent, leaving the child without two parents.  

When the biological parent does not consent to termination of his or her rights, step-parent adoptions become complex.  Generally speaking, the Courts require a significant amount of evidence to involuntarily terminate parental rights, particularly when the child is already in a stable, permanent home.  A request to permanently sever the parent–child bond seeks to irrevocably remove that parent from the child’s life and constitutes the most serious of family law matters.

Circumstantial factors, such as the existence of a Protection from Abuse Order (PFA), play into involuntary termination proceedings. A recent Superior Court Case, In Re: S.S.W., 2015 Pa. Super 204, found that the involuntary termination of a biological Father’s parental rights was improper where the biological Father was prevented from seeing the children due to a PFA.

Here, a PFA was entered against Father when the children were two years old and three months old, respectively, after Father injured Mother, and threatened to harm himself in front of her. At the time the order was entered, Father had lost his job and was facing criminal charges of simple assault. Shortly after the incident, Father was committed for inpatient mental health treatment for a time. Father attempted to contact Mother twice, and twice was charged with Criminal Contempt of the PFA.  In sum, Father’s entire life fell apart in a very short time.

Over the next several years, Father turned his life around. Father got a new job, and participated in mental health treatment and pastoral counseling. Several times, Father attempted to obtain a lawyer through a Legal Aid group, but his requests were repeatedly denied, apparently due to his criminal record.  Father was unable to attend the PFA extension hearing because he could not get the day off work and was afraid of losing his job.  Accordingly, rather than expiring, the PFA extended another three years.  Meanwhile, years went by without Father seeing the children, although he paid child support.  Like many people, without lawyers, Father did not understand that he could have modified the PFA to allow some type of contact with the children.

The Court’s analysis paid special attention to Father’s efforts to obtain an attorney, and his success in coping with his mental health issues. Under Pennsylvania law, in order to “perform parental duties” parents must “exert themselves to take and maintain a place of importance in the child’s life.” In Re: Burns, 379 A.2d 457. However, in this case, the Court found that Father had not failed to exercise his parental duties, even though he had not seen the children in nearly five years, because he was prevented from seeing the children by the PFA, and had made efforts to turn his life around and obtain an attorney to fight for custody.  Most, if not all, of Father’s circumstances were of his own making but the court still gave him the benefit of the doubt.   Notably, the dissenting Justice in the In Re S.S.W. matter disagreed with the Court's "extremely difficult time" exception.

Litigants should consider all the circumstances of their situation before asking the Court to involuntarily terminate the parental rights of a non-custodial biological parent. Prior to starting involuntary termination proceedings, litigants should ask themselves if there are any barriers to the biological parent exercising his or her parental rights, and, if so, whether the biological parent has made efforts to overcome these barriers. If the answer to both questions is “yes,” litigants may want to avoid the expense and unpleasantness of an involuntary termination proceeding.  On the other hand, parents should understand that they must make every effort to parent the children.  Even if one parent has a Protection from Abuse Order from the other, prohibiting contact, a parent can petition the court to modify the Protection from Abuse to allow contact with the children.

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

Thursday, October 08, 2015

Separation and the Elective Share in Pennsylvania

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 06, 2015

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

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

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

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

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

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

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

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

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

1. How long have the parties been living separately?

2. How old is the child at issue?

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

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

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

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

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

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

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

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

Rate your marriage?!?

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

Friday, September 25, 2015

Buyer Beware: A Frightening E-Mail Real Estate Scam

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

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

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

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

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

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

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

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

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

Tuesday, September 22, 2015

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

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

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

Custody Relocation in Pennsylvania is Subject to Strict Laws

Tuesday, September 01, 2015

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

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

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

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

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

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