Monday, March 30, 2015

Filing your taxes

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

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

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

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

Thursday, March 26, 2015

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

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  As a recent non-precedential (meaning that other courts are not bound by the decision) Pennsylvania decision, C.A.W. v. M.K. demonstrates, it is extremely difficult to prove an abuse of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

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

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

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

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

Monday, March 23, 2015

What is arbitration?

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

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

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

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

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

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

Thursday, March 19, 2015

When will a court impute an earning capacity?

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

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

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

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

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

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

Monday, March 16, 2015

Tips for custody transitions

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

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

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

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

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

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

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

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

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

Thursday, March 12, 2015

Sometimes, the appellate court’s hands are tied

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

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

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

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

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

Monday, March 09, 2015

How do I serve a defendant?

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

Ways to make service:

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

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

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

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

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

Thursday, March 05, 2015

What to do when a Property Settlement Agreement is not clear

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

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

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

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

Monday, March 02, 2015

What is equitable?

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

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

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

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

Thursday, February 26, 2015

Courts have significant authority to deviate from support guidelines

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

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

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

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

Monday, February 23, 2015

Tips for Fighting Fair

It is going to happen - you are going to fight with your ex-spouse or child’s other parent.  This article was written as tips for partners in an intact relationship, but they are equally relevant (perhaps with a few adjustments) to all adults, who should aim to fight fairly.  It is worth taking a few minutes to read.

Thursday, February 19, 2015

Is the relocation statute triggered when only the children are relocating?

In a recent, non-precedential (which means that it is not binding law for other courts) Pennsylvania case, D.K. v. S.P.K., the Superior Court of Pennsylvania held that the notice provisions of Pennsylvania’s relocation statute are not triggered when only the children would be moving a significant distance, but not either parent.  In that case, Father lived in Pittsburgh, while Mother lived in North Carolina.  The children had lived with Father for several years, while Mother struggled with alcoholism.  When Mother finally was able to become sober, she petitioned for a change in custody and sought to become the primary custodian of the children in North Carolina.  Neither parent was moving, but Mother’s petition would require the children to move a significant distance.

After a thorough analysis of the statutory language, the court held that the notice provisions of the relocation statute were not triggered because neither parent was moving.  That said, the court held that in that situation, the court should still consider the relevant custody factors listed in the relocation statute, in addition to the general custody factors.  Consideration of the relocation factors was necessary in order to help protect the best interests of the children, because the factors specifically look at the impact of relocation on the children.

If you are relocating or you would like to request a change in custody that would require your children to move, you should contact an attorney to discuss your best options.

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

Monday, February 16, 2015

Are you taking a trip for spring break?

During these cold days of winter, it is nice to daydream about taking a trip during your children’s spring break from school.  However, in divided families, it is important to think well in advance about the logistics.  If you have a custody order or agreement in place, pull out the document and carefully read it to see whether spring break is specifically addressed.  Even if you think you remember what the terms of the order or agreement are, you may have forgotten some small nuances.  Re-read the terms so that you are clear on what your rights and obligations are, especially with regard to where you may go and if you need to provide notice to the other parent.  Check the school calendar so that you know what the exact dates of the break.  Make sure that your plans will not interfere with sports or other activities.

If you do not have a custody order or agreement, you should try to reach an agreement with the other parent as soon as possible.  If at all possible, make sure that your agreement is in writing, preferably an email rather than text message.  When reaching an agreement, make sure that the details are clear and specific.  This will help prevent a lot of last-minute headaches.

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

Thursday, February 12, 2015

Serving the victim of domestic violence with a divorce complaint in New Jersey

The Superior Court of New Jersey recently approved the opinion in J.C. v. M.C. for publication.  In that case, the Husband was presented with a problem when trying to serve Wife with the divorce complaint.  Husband did not know where Wife lived, and Wife had a Final Restraining Order against Husband, which prevented him from investigating her address.  

This case provides a clear example of two court rules clashing.  In New Jersey, like most states, a plaintiff in a divorce action must perform due diligence when trying to obtain the defendant’s address for the purpose of serving the divorce complaint.  Due diligence requires the plaintiff to go to great lengths to investigate and try to find a good address for the defendant.  Conversely, a party protected by a restraining order has the right to maintain a confidential address, and the defendant in the domestic relations action is not allowed to contact the plaintiff.  Additionally, there is no reason that the courts would want to prevent parties involved in domestic violence cases from getting divorce.  Therefore, the court had to create a solution.

In this case, the court ordered that the domestic violence unit in the court would forward the divorce complaint to the Wife on behalf of the Husband.  By using this mechanism, it was more likely that Wife would receive the complaint, and Wife’s address could still be kept confidential from Husband.

If you have questions about how to serve a complaint on a party or if you need help trying to find the other party, you should contact an attorney to discuss your questions.

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

Monday, February 09, 2015

Update on billion dollar divorce

Recently, last Monday we shared an article on this blog about a Texas oil tycoon’s divorce.  As we previously mentioned, it is a long way from a final resolution.  In a recent update, the wife refused a $975 million check presented to her by the husband.  Wife rejected the check out of fear that it might hurt her ability to appeal the amount that she was awarded.  Although it may seem insane to reject so much money, the wife may be right about her litigation concerns.  It will be interesting to continue watching this case unfold.

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