Saturday, July 04, 2015

Happy Birthday America!

Happy Birthday to the United States of America!

Friday, June 12, 2015

Social Media Rants: Could Venting Your Frustration Land You In Prison?

Domestic Relations litigation stirs up a lot of feelings: stress, anger, and frustration are among them. Under the pressure of a bitter divorce or contested custody matter, parties may feel the need to vent. The prevalence of social media makes it even easier to publicly “say” something you will regret. Venting your feelings on social media is almost never good for your divorce or custody litigation, and most lawyers remind their clients to be careful about their social media presence during litigation. However, few people realize that extreme social media rants may have serious, even criminal, consequences.

The law surrounding social media is still developing. Parties should be aware of the federal statute 18 U.S.C. §875(c), which makes it a crime to “transmit in interstate commerce” (ie: via the internet) “any communication containing any injure the person of another.” The United States Supreme Court recently tried to clarify the meaning of this law in the case Elonis v. United States, (published June 1, 2015).

In Elonis, an angry Husband posted imitation “rap lyrics” to his Facebook page following his separation with his wife. The “lyrics” explicitly described how someone might best try to kill his wife: by firing a mortar launcher at her house from an adjoining field and escaping on an access road. Further “lyrics” included phrases such as “Fold up your [protection-from-abuse order] and put it in your pocket, is it thick enough to stop a bullet?” and “If worse comes to worse, I’ve got enough explosives to take care of the State Police and the Sheriff’s Department.”

Elonis interspersed the “lyrics” with notes that they were not intended to be about real people, and that he was exercising his first amendment rights. Elonis later argued that his “lyrics” were meant to imitate those of rappers such as Eminem, whose lyrics describe his fantasies about killing his ex-wife. Elonis was indicted under 18 U.S.C. §875(c).

The main issue in Elonis was the level of culpability Elonis needed to be found guilty. The statute criminalizing threats did not specify the intent necessary. The majority of the U.S. Appellate Courts had held that a standard of “negligence” was necessary to convict Elonis. Use of the “negligence” standard means that Elonis would be guilty if he “should [have] be[en] aware of the substantial and unjustifiable risk” that his posts would be interpreted as true threats to harm others. The Supreme Court, however, ruled that “negligence” was not enough.

In deciding Elonis, the Supreme Court ruled that when a statute is ambiguous, the level of intent required to convict is “only that [intent] necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” In Elonis, the Court decided that the “negligence” standard did not sufficiently separate true threats from harmless Facebook rants. However, the Supreme Court declined to decide what level of intent would be necessary to convict someone under this statute.

For now, what this decision means is that U.S. Appellate Courts are free to decide what the appropriate level of culpability is for conviction under 18 U.S.C. §875(c). As Justice Alito’s concurrence argues, the Appellate Courts’ previous willingness to convict under the “negligence” standard, and the Supreme Court’s prior decisions on other ambiguous statutes strongly favor conviction under a “recklessness” standard.

Adopting the “recklessness” standard would mean a person may be convicted under 18 U.S.C. §875(c) where he knows there is a substantial risk that others will perceive his posts as threats, and he disregards that risk, and publishes the posts in spite of that risk. If the “recklessness” standard is later adopted, Courts will also have to consider whether the application of this law violates the First Amendment right to free speech. However, because “true threats” are not protected by a First Amendment, Justice Alito’s concurrence argues that a statement that was threatening enough to warrant a conviction under 18 U.S.C. §875(c) would probably not be protected by the First Amendment.  

Social Media law is still developing, and no one can be certain of how the courts will handle this issue in the future. For now, the common sense takeaway from this Supreme Court decision is “think before you post.” Social Media postings can have serious consequences, both on your current litigation, and on your freedom. Ultimately, the Supreme Court overturned the conviction in Elonis, so some may say he “got away with it.” However, Elonis lost his job and any chance of a civil relationship with his ex-wife. The U.S. Supreme Court case was the culmination of almost five years of expensive, time consuming, stressful, and bitter litigation. The Supreme Court’s decision cannot give Elonis back the last five years of his life.

Before you write that Facebook rant, remind yourself what could be at stake.  Then find a counselor, or your private journal, and express your feelings through those mediums instead.

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, June 10, 2015

Mental Health as a Factor in Custody Litigation

Custody litigation becomes more complicated when one or both parents experience mental health problems. Unfortunately, according to the National Institute of Mental Health , approximately 28% of Americans suffer from some mental illness, with about 4% of those people battling a serious mental illness. While most feuding parents accuse each other of faults, including mental health issues, truly impaired parents cannot effectively parent or even fully participate in the court process.

Where one parent suffers from a mental illness, Pennsylvania Courts must still perform an extensive factual analysis of the factors enumerated in the Pennsylvania custody statute. In evaluating these factors, the Court must, as always, focus on the best interests of the child. The mental health of a parent may affect the determination when that parent’s behavior is viewed in light of the custody factors. One example of this is the case of C.S. v. T.S. (No. 1700 WDA 2014), recently decided by the Superior Court of Pennsylvania. While this is a non-precedential decision, which means it is not binding on any Court, the Superior Court’s opinion provides some insight into the way the court may address mental health issues in child custody litigation. It also contains a comprehensive review of the factors in the custody statute.

In C.S. v. T.S., the Court addressed the Mother’s appeal from a custody order denying a petition for shared custody of the children where the current arrangement granted Father primary custody and Mother partial custody. In this case, Mother suffered from a mental illness.

While evaluating the custody factors, the Trial Court placed special emphasis on Mother’s in-court and out-of-court behavior during the litigation. The Trial Court especially noted Mother’s tendency to show up at Father’s house, uninvited and unannounced to see the children off to school or question the competency of Father’s babysitters. The Court agreed with Father that these incidents emphasized Mother’s poor decision-making capabilities and lack of regard for the stability of the Children’s lives.

The Court further noted that during her testimony, Mother had difficulty staying focused and displayed no respect for Father. Perhaps most importantly, the Court noted that Mother’s gas had been turned off for almost a year due to nonpayment.

Throughout this case, Trial Court and the Appellate Court stressed the importance of a stable environment for the children to live in. The evidence demonstrated that Father’s home was more stable, and that increased time with Mother would jeopardize that stability.

While the Court recognized that Mother had good intentions, it was concerned by the “harsh reality of her own behavior” even though the Court recognized “she ha[d] very little control over it due to her mental health issues.”

When the mental health of a party is a factor in custody litigation, parties must remember that Judges are required to consider the custody factors, and evidence of erratic or unstable behaviors may significantly influence the judge’s decision. Parties must be careful to understand that even if the other parent acts unreasonably or irrationally, whether or not due to mental illness, the other parent must still cooperate and navigate the needs of the children as well as the relationship with the other parent. Although frustrating, Courts will still expect some degree of co-parenting and cooperation.

Additionally, accusation of mental health defects in bitter custody disputes tend to be common.  In disputed custody cases, virtually all parents accuse the other party of having mental health problems.  Actual, mental health disease with demonstrated adverse effects on the children are different then generalized, "the other party has a problem" allegations.  Litigants, when presenting their case, should focus on the facts (examples of the other parent’s behavior) rather than the conclusion (simply accusing the other parent of having mental health issues). Let the Court draw conclusions from the evidence you present.

This blog was written by Jill Fitzgerald, a third year law student at Drexel University Thomas R. Kline School of Law.  Edited by Linda A. Kerns, Esquire.

Wednesday, June 03, 2015

How does the court in Pennsylvania assess earning capacity for support?

Courts in Pennsylvania calculate support based on the payor's actual earnings and earning capacity, if the court believes the payor is not earning up to his potential.  Being assessed a support number based on earning capacity can be devastating to the payor --- if you are not actually earning the number on which your support order is based, you can end up owing much more than you believe you can afford.  However, under the law, the court has a right to assess an earning capacity.

Recently, the Superior Court of Pennsylvania addressed an earning capacity issue -- and set the Father's earning capacity at $91,000 per year even though he testified he was earning only $58,841.38 per year plus an $8,000.00 bonus.  The court based its order on Father's prior earnings as well as his experience.  You can read the full opinion here which offers a detailed explanation of how the court calculated the earning capacity.

Earning capacity cases require detailed preparation and a thorough review of the available evidence. The trial court has discretion in determining earning capacity and litigants must present comprehensive and specific evidence to support their case.

Tuesday, May 26, 2015

When divorced parents cannot agree on private school in Pennsylvania

When parents separate, the same income that was used to support the intact family must thereafter be spread over two separate households.  This generally means cuts will be necessary in some areas of the each parent’s budgets due to duplication of living expenses that the parties previously paid as one unit, such as rent, and utilities.  If the parents, living as a family unit, were barely making ends meet, dividing the household, and therefore the available income, can be devastating to some budget items.

An excellent example is private school tuition.  For most parents, even intact families, private school tuition requires a sacrifice of other budget items.  When parents separate, and must stretch their income, private school goes from being a stretch to simply unaffordable.  Unfortunately, if one parent wants to continue to send the child or children to private school, even over the objection of the other, a parent can be compelled to do so by the court, even if it will cause extreme financial hardship.  

When faced with the issue of whether to order that a child continue at private school over the other parent’s objection – and possibly compel the objecting parent to pay– the Judge must consider whether the cost of the private school is a reasonable need of the child and a reasonable expectation and expense of the parents.  This analysis requires a detailed review of the specific facts of the case.  The Court looks to whether the child is benefitting or will benefit from the private school education and whether private school is consistent with the family’s standard of living prior to separation.  Accordingly, the Court looks to the parents’ choices during the marriage and the history of the parents, including whether the parents themselves went to private school as children.

In determining whether or not a child will benefit from private school, significant testimony is often necessary, on topics such as whether the child’s emotional or academic needs are being met by the school, and the child’s actual experience at the school, including grades and activities.  Often, the parents differ in their perceptions of the school’s benefits, leaving the Judge to make a credibility determination.

In order to convince the court that the same benefit could be had at a lower priced school or a public school, the objecting parent must provide the court with comprehensive evidence proving that the public school would be just as good or better for the child.  This kind of evidence is not always easy to present without hiring an expert on education. Even with an expert witness, this evidence may be difficult to gather. Public school teachers and administrators often cannot or will not testify, hindering the expert’s ability to gather the relevant facts and present them to the court.  The cost of the litigation can sometimes exceed the cost of the private school tuition over which the parties disagree.  The question then becomes one of practicality–weighing litigation costs versus potential results.

Parents who choose private school, and then separate, often disagree over the child’s needs to continue that schooling. These contests become a heart-breaking tug of war, with the child in the middle.

Recently, in Montgomery County, parents who earned relatively modest incomes chose to send one of their daughters to a private school while they were still together as a family.  However, the parties’ marriage broke down partially due to the significant financial strain placed on the family by the cost of the tuition.  The father agreed to continue contributing only towards the oldest child’s first year of private school but then refused to make continuing contributions, arguing that his income and the parties’ lifestyle simply did not merit such an onerous expense. However, as child support determinations are always modifiable, after several years of not receiving contribution from the father, the mother filed a petition to amend the support order, asking that the father contribute to the private school tuition not only of the older child but also of a younger daughter who had recently enrolled.

Ultimately, after extensive litigation, the Court ordered the father to pay $524.87 per month towards the tuition costs, bringing his total child support obligation, which included his basic child support and his contribution towards medical insurance to $1,619.62 per month.  The court determined that the father netted a little less than $4,400.00 per month, but the father felt this child support obligation was confiscatory and would force him into poverty.  Unfortunately, none of his arguments persuaded either the Trial Court or the Appellate Court to which he ultimately brought the case.

Parents want the best for their children and most would not deny their offspring the best education they could possibly provide.  However, the reality of the cost of daily living expenses means that many families, although they may wish to send their children to private school, simply cannot afford it.  Unfortunately, when warring spouses present the issue to a court, they are leaving that question up to a Judge.  The results can be financially devastating.  The case described in this article is captioned Barnes v. Barnes and the full Opinion can be found by clicking here.

Parents who are currently sending their children to private school and separate or separate before the children are even of school age and fear that the other parent will attempt to compel private school, should understand the law in Pennsylvania as well as how to present their case in the most compelling and persuasive manner.  Once a judge orders a parent to contribute towards private school tuition, it is the rare case when that parent will later be relieved of the obligation. In many cases, the parent may be come obligated to pay until the child graduates, which often interferes with the parent’s ability to provide other support for the child or to save for college.  As the decision often sets a long term precedent, parents must understand the impact of a childhood of private school tuition and establish their case as early as possible.

Friday, May 22, 2015

The factors a court in Pennsylvania must consider in awarding custody

Anyone litigating a custody case in Pennsylvania most likely has heard of the factors in the custody statute.  When “ordering any form of custody,” a court must consider the 16 factors listed in the statute and also explain their consideration of the factors in the final decision.  When a judge does not adequately analyze all of the factors in the statute, the losing party has a good chance on appeal of having the Superior Court overturn that decision.  However, the definition of “adequately analyze” can be wildly interpreted.

Recently, in Philadelphia County, parents were litigating over who should have custody of their 2 year old child.  The trial court ultimately awarded primary custody to Mother, providing her with 8 days out of every 14 while Father had partial custody for 6 days out of every 14.  Notably, one more day taken away from Mother and given to Father would have been an equally shared custody arrangement.

Father appealed because, although the Judge’s ruling seemed to indicate that the child would be better off with Father, the Judge awarded primary custody to Mother.  Ultimately, on appeal, the Superior Court sided with Father and he gained primary custody, on the basis that the analysis by the trial judge tilted towards Father.  This particular case, for which the Opinion can be found by clicking here, was a Philadelphia County case where the wait for court times is notoriously long.

In this case, when the parties separated, Mother created the status quo by taking custody of the child.  She then denied Father access and at the initial Court hearing, the Court granted him very limited time with the child.  Unfortunately, when the case finally went to a full trial, the court relied on the so-called “status quo,” in that the Mother had been the primary custodian for quite some time.  However, the Appellate Court rightly noted that the status quo was Mother’s creation; Mother had taken the child and then purposely limited Father’s time, thereby making her the de facto primary parent.  This Opinion is also notable because both the Trial Court and Appellate Court commented on the apparent lack of cooperation between Mother and Father which the court found was due to Mother’s attitude as well as the maternal grandmother’s interference with parenting.

Clients are often told during custody hearings that they should do everything possible to cooperate with the other parent, both because it would be in the child’s best interest to have communicating parents and because cooperation with the other parent is a factor the Court always considers in awarding custody.  Unfortunately, due to the hurt feelings, mistrust and emotional toll of custody litigation, parents often do not heed this advice.  Refusing to cooperate with the other parent may be one parent’s way of trying to protect the child from the other party’s allegedly inferior parenting.  However, many times, failure to co-parent can backfire, causing the Court to look upon the non-cooperating parent unfavorably.

In the case discussed above, for example, the Appellate Court noted that “due to the lack of cooperation cited by the Trial Court [on behalf of Mother], awarding primary physical custody to Father might be of significant benefit to Child. . . and might make Mother realize that her lack of cooperation and attempts at alienation will not be rewarded.”

Cooperation between parents not only benefits the child, but may help in custody litigation. Parents going through child custody litigation should make every effort to cooperate with each other, and ensure that both parents remain in contact with the child.

Wednesday, May 20, 2015

Is child custody really a fight over money?

In Pennsylvania, the parent with primary custody has a right to receive child support from the other parent.  The custody statute defines the primary parent as the parent with the greater number of overnights.  Accordingly, a parent having at least 8 overnights in a 14 day period, is considered the primary parent.  Some people would view a custody arrangement where the time with the child is almost evenly split to be a shared arrangement.  In fact, some judges even call this a shared arrangement.  However, for purposes of child support, the parent with even one more overnight is considered the primary parent and is therefore entitled to receive child support, although this support would be slightly discounted in a nearly shared arrangement.

Even if the custody arrangement shifts to a true shared arrangement, that is the overnights are shared on a 50/50 basis so that in a 14 day period, each parent has 7 overnights, there could still be a child support order.  In those actions, the parent who earns more money would owe child support to the lower income parent.  This is a desire by the drafters of the guidelines to evenly divide income so that the children have the benefit of the income in both households.

Depending on the respective parents’ incomes, these quirks in the law can sometimes appear to result in inequities.  If the children spend almost the same amount of time with each parent, shouldn’t there be a more equitable way to address support?  Additionally, in some cases, the parent with slightly less time may be the parent who takes on must of the “primary parent duties,” but because custody is determined by overnights, that parent may not be recognized as the primary caretaker.
Recently, in a non-reported decision in the Superior Court of Pennsylvania called M.R.D. v. L.R.D., the court addressed these very issues.  As this is a non-reported decision, it cannot be used for precedential value.  However, it is helpful to understand the court’s reasoning and plan for your own case.

In M.R.D. v. L.R.D., the parties’ property settlement agreement created a custody schedule under which Father had more custody time than Mother.  A few year later, Mother filed a custody complaint and the court ordered shared custody, of seven days per parent in each two week period. When the child custody order was changed, support became an issue between the parties. Father continued to assert that he was the primary parent, and was thus entitled to child support. Rather, the Court found that Mother, whose monthly income was lower than Father, would receive child support as a result of the shared arrangement.

The Trial Court noted that the laws covering child support “recogniz[e] that the a primary custodian will bear most of the expenses of the children simply by virtue of having custody of the children for the majority of the time” but that when parties share custody “these expenses will be born in a more equal manner.” The trial court then applied the formula for calculating support obligations dictated by Pennsylvania Law.

Unfortunately, child support can motivate parents to fight over that one extra day.  In some cases, however, parties seek the psychological advantage of being called the primary parent. Whatever the reason, parents must thoughtfully and carefully seek the best child custody arrangement possible, taking all of the consequences, financial and otherwise, into account.

Wednesday, May 06, 2015

Re-entering the workforce

Separation and divorce often means a previously non-working parent must re-enter the workforce, often after significant time at home raising kids.  With the job market so competitive, finding a job can be daunting, especially when your skills and experience may be lacking due to your time out of the employment world.

The informative website: posted an excellent article detailing three actual stories of women who re-entered the workforce and succeeded.  Read the inspiring tales here.

Wednesday, April 29, 2015

Does taking your 11 year old daughter to a P!NK concert constitute abuse of parental discretion?

Contentious custody litigation often spirals out of control. Parents accuse each other of all sorts of wrongs, convinced that the other exhibits inferior parenting skills.  

One mother, in Ocean County, New Jersey, took her eleven (11) year old daughter to a P!NK concert in December 2013.  The girl's father objected and asked the court to view the mother's decision as poor parenting.  

Long term litigation ensued and, a year after the concert, the trial judge issues an opinion that the mother's decision to take her daughter to the concert was a "reasonable and appropriate exercise of parental discretion."  The trial judge also opined that "[E]ach parent serving as joint legal custodian generally has a right to exercise reasonable parental discretion over a child's activities while in his or her physical care, free from unreasonable interference, infringement, obstruction or attempted control by the other parent."  You can read the full, and lengthy decision, here.

If you think that concert tickets are expensive, imagine the cost of this trial!

Tuesday, April 28, 2015

Quote of the Day

Do not overestimate the competition and underestimate yourself.  You are better than you think.

-T. Harv Eker

Monday, April 20, 2015

Playing the “Mad, Sad, Glad” game with your kids.

During divorce or custody litigation it is especially important for you to keep open lines of communication with your children.  It is easy for children to simply say that their day was fine and to act like nothing is wrong.  However, when the stresses of divorce and custody litigation pile on top of a child’s real life stresses, like spelling tests, making the soccer team and making friends or childhood drama or bullying, a child’s life can be surprising trying.  Therefore, it is important to give your children an opportunity each day to open up to you about their lives.

A great way to facilitate these daily conversations is to play the “Mad, Sad, Glad” game during dinner or at bedtime or even in the car.  Each person simply has to state one thing that made him mad, one thing that made him sad and one thing that made him glad that day.  Another version is called “Peak and Pit,” and it has the same premise.  While you do not necessarily have to delve into any problems that come to light during dinner, you have the information needed to have a positive conversation with your child later or to address issues at school or otherwise.

By creating the habit of playing this game each day, you are teaching your child that you want to hear about her day and that you are listening.  Children even look forward to playing this game, because they know they they will have a comfortable way to bring up concerns or successes.  In short, this game gives both you and your children a positive, comfortable and routine way to discuss what is going on in their lives.

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

Thursday, April 16, 2015

Can you use text messages as evidence in court proceedings?

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

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

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

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

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

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

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

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

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

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

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

Monday, April 13, 2015

Preparing for an appraisal

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

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

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

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

Thursday, April 09, 2015

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

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

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

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

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

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

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