Monday, October 20, 2014

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

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

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

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

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

Thursday, October 16, 2014

What is “earning capacity?”

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

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

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

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

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

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

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

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

Monday, October 13, 2014

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

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

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

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

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

Thursday, October 09, 2014

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

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

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

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

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

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

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

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

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

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

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

Monday, October 06, 2014

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

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

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

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

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

Thursday, October 02, 2014

Enough is enough - when to listen to the court.

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

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

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

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

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

Monday, September 29, 2014

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

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

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

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

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

Thursday, September 25, 2014

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

In New Jersey, the answer is “maybe.”

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

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

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

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

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

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

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

Monday, September 22, 2014

Homework is a shared responsibility

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

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

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

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

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

Thursday, September 18, 2014

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

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

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

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

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

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

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

Monday, September 15, 2014

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

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

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

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

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

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

Thursday, September 11, 2014

Home of the free, because of the brave

Can I get divorced now, and deal with the rest later?

For various reasons, clients often would like to finalize their divorce prior to resolving equitable distribution or other issues.  If, for example, the parties have been separated for a long time and they have not been able to agree on a resolution to equitable distribution issues, a party might like to finalize the divorce so that he or she can get remarried prior to such a time that the parties are able to settle or litigate the remaining equitable distribution issues.  This process is called a bifurcated divorce.  At one time, it was extremely difficult for parties to successfully ask the court to bifurcate a divorce, but it appears that these standards might be relaxing.

Under Pennsylvania law, there is a three prong test that must be met in order for a court to be able to grant a bifurcation request. First, the grounds for divorce must be established.  Second, compelling circumstances must exist for the entry of a divorce decree, and, third, sufficient economic protections must be provided to the other party while the remaining claims are pending.  The first prong, grounds for divorce, is something that must be established in every case, and is relatively straight-forward.  It was the second and third prongs that seemed particularly difficult to satisfy.

However, a review of case law in recent years shows that courts have been more willing to find the required compelling circumstances for the second prong and the economic protections for the third prong.  For example, courts have found in certain cases that “compelling circumstances” exist when the parties have been separated for quite some time and one party wants to remarry.  Please understand that what you may consider an extended separation may not be the same definition that the judge has in mind.  For the next prong, the courts have found that “sufficient economic protections” existed when the spouse who opposed the bifurcation was in possession of the property that was subject to equitable distribution.

Although it appears that bifurcation may be easier to obtain today, it is important to discuss this strategic decision with your attorney.  Litigating this issue could take a long time and cost thousands of dollars in attorneys fees.  Cost, however, is not the only factor.  Obtaining a divorce may seem appealing; however, you may lose significant leverage with regard to the pending issues.  You need to carefully weigh whether you are really in a position where a bifurcated divorce will serve you best.  While it may allow you to move forward with a remarriage or other actions, it may mean that you will stay tied to your ex-spouse for a long time if they no longer have a reason to resolve the economic issues.  You should carefully discuss all of your options with your attorney.

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

Monday, September 08, 2014

Does my child have to testify in our upcoming custody trial?

When a parent is involved in custody litigation, often one of his first concerns is whether his child will have to testify.  Initially, our answer is that it depends on a lot of different factors.  To the extent possible, we often try to avoid having the children testify, because it is an inherently scary thing and children are notoriously unreliable witnesses.  Even when parents believe with certainty that the child will state certain preferences or opinions, the child often will freeze up or simply make things up when speaking with a judge.  When possible, we try to avoid making the child appear in court, especially when the child is very young.  That said, there are some situations where a child will need to testify or where the judge wants to talk to the child before making any decisions.

When a child does have to testify in court, it depends completely on which judge is hearing the case to determine how it will proceed.  Each judge has his or her own preferences.  The Pennsylvania Bar Association recently put together a video discussing the judicial interview of a child.  You can watch it here.  It is a long video, but it gives you a nice overview of the various practices that judges implement, and it also provides insight into how differently various judges will proceed with an interview.  For example, most judges conduct the interview in their office, also known as chambers, so that children do not have to go through the scary experience of sitting on the witness stand.  Most judges prefer to speak with the children alone, without any attorneys present.  If one of the parties is pro se and does not have an attorney, then for the most part neither parent nor any attorneys will be allowed in the room during the interview.  After viewing the video, you should discuss any questions or concerns that you have regarding the process with your attorney.

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

Friday, September 05, 2014

Helping your kids transition back to school

Now that it is time for students to head back to school, life can become even busier with homework assignments, after school activities and normal day-to-day hustle and bustle.  The transition from carefree days of summer to school can be difficult for any student, but it can be even trickier for students who transition custody between parents’ homes.

Using a color-coded calendar can help children have a better understanding of where they are going to be, which helps them through the transition.  For example, print out a calendar and write all of the student’s activities on it.  Then pick one color for the child’s time at mom’s house and a different color for the child’s time at dad’s house, and fill in the entire calendar with the various colors.  That allows the child to visualize where they will be during for the week for various activities.  The calendar should hang in a central location in the house so that the child can see it whenever they would like.  We have included a sample below.

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