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The recent non-precedential (in other words, not binding on future courts) Pennsylvania case of Sallustio v. Mercer discusses a trial court’s decision to deviate from the guidelines in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.

Thursday, February 05, 2015

Will a court enforce the terms of a religious marriage contract?

The New Jersey case Odatalla v. Odatalla provides a nice explanation of why the courts will, depending on the circumstances, enforce a religious marriage contract.  In this particular case, the parties signed an Islamic Mahr Agreement as part of their religious marriage ceremony.  As part of the agreement, the parties agreed to a postponed payment of $10,000.00 from the Defendant to the Plaintiff.  

When the parties entered into the divorce litigation the Defendant argued that the civil court could not enforce the Mahr Agreement because it would be a violation of the First Amendment, which requires separation of church and state.  Additionally, the Defendant argued that the Mahr Agreement was not valid under New Jersey law.

The court disagreed with both of the Defendant’s arguments.  Rather, the court found that the Mahr Agreement was simply a contract between two consenting adults.  It did not matter that the agreement had been negotiated as part of a religious marriage ceremony.  The terms of the agreement that the plaintiff was seeking to enforce were not religious in nature, and could be enforced under the laws of New Jersey.  Therefore, the court found that it was an enforceable contract.  

In general, it is possible that the court could find that some provisions in a religious marriage contract are not enforceable under state laws; however, standard contracting type provisions will likely be enforced by the court.


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

Monday, February 02, 2015

Beware of unforeseeable risks during divorce

Often on this blog, we discuss the many considerations that exist when trying to reach a divorce settlement.  One of the biggest concerns when negotiating a settlement is trying to predict what the future may hold and how it may impact the assets, debts and incomes of the parties.

A great illustration of this issue can be pulled from current headlines.  In this current, on-going divorce case, an oil tycoon is divorcing his wife of 26 years.  They agreed to a settlement whereby the wife received $1 billion in assets; however, they agreed to the settlement when oil prices were higher.  As we have all seen when visiting the gas pump, the price of oil has dropped significantly, and as a result the oil tycoon is worth a lot less money now.  He is protesting that the settlement is no longer fair.  Unfortunately for him, he may not have adequately weighed the risks of the oil market when negotiating his settlement.

While few have billions (or even millions) of dollars at stake during a divorce, the impact of a significant change in assets or income is the same on all people.  It can be devastating, if it is not properly anticipated.  Therefore, when negotiating your settlement, it is best to try to allocate assets and debts in a way that require both parties to share in the risks and benefits.

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

Friday, January 30, 2015

Operation Organization Day 22

Each weekday this month, we have addressed one task that you can complete in order to help you prepare for moving forward with your divorce.  It has been a lot of paper-gathering and contemplation about what you own and how you want to move forward, but hopefully you should be better prepared and the process will be a bit easier.  Share your work with your attorney, because your hard work over the last month will also save you attorneys fees in the long run by allowing your attorney to work more efficiently.  Last but not least, maintain what you’ve done.  Continue to keep paystubs and monthly statements as your receive them.  Add to your list of expenses if new expenses arise.  You’ve done all the hard work, now you simply need to maintain and update your collection of information.

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

Thursday, January 29, 2015

Operation Organization Day 21

Each weekday this month, we are addressing one task that you can complete in order to help you prepare for moving forward with your divorce.  Today’s task is:

ATTORNEY CONSULTATION

Schedule a meeting with your attorney to discuss strategy for how you want to move forward with your divorce.  Depending on which spouse earns more money and other factors, there are strategic decisions to be made in order to decide whether and when you should file for divorce.  These factors vary depending on what state you live in, but your attorney will be able to help you figure out what your next step should be.  For example, in Pennsylvania, even if you decide not to file for divorce immediately, you may be able to go ahead and file for spousal support.  Your attorney will be able to help you make these decisions.

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

Wednesday, January 28, 2015

Operation Organization Day 20

Each weekday this month, we are addressing one task that you can complete in order to help you prepare for moving forward with your divorce.  Today’s task is:

STRESS REDUCTION

Like all prior weeks during this month, there is one day each week that we focus on you.  Today, think about things that you can continue to do in the future to help you feel good about yourself and reduce your stress during this process.  Perhaps spend a couple minutes scheduling lunches with friends or a haircut appointment that you have been meaning to book now for a couple weeks.

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

Tuesday, January 27, 2015

Operation Organization Day 19

Each weekday this month, we are addressing one task that you can complete in order to help you prepare for moving forward with your divorce.  Today’s task is:

MAKE GOALS

Think about and write down where you would like to be and what you would like to have at the end of the divorce.  Sometimes the only way to finalize a divorce is to proceed through litigation, because the parties cannot agree.  However, in other situations the parties are able to reach a settlement.  If you start thinking now about what you would like at the end of the divorce, you will be in a better position to negotiate.

Think about which assets you would like to keep and how debts should be divided.  If you think that you should receive alimony, try to start to figure out a realistic amount that you think that you need.  Likewise, if you expect that your spouse will ask for alimony, think about how much you could afford to pay.  What you end up doing, could be vastly different than what you think it should be today.  That said, your attorney will have a better idea of what your priorities are and will be in a better position to guide you.

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

Monday, January 26, 2015

Operation Organization Day 18

Each weekday this month, we are addressing one task that you can complete in order to help you prepare for moving forward with your divorce.  Today’s task is:

YOUR ESTATE PLAN

If you have a will and other end-of-life documents, find them and review them.  Likewise, find any life insurance policies or other investment accounts that have named beneficiaries.  It is likely that you are going to want to make changes to those documents.  You should talk to an attorney before making any changes, especially before removing your spouse as a beneficiary on any policies, but you can start to consider how you would like to make changes.

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

Friday, January 23, 2015

Operation Organization Day 17

Each weekday this month, we are addressing one task that you can complete in order to help you prepare for moving forward with your divorce.  Today’s task is:

PERSONAL PROPERTY

If you own any valuable artwork, jewelry, antiques or other similar items of value, begin to look into having the items appraised.  Ask around for recommendations for an expert, and find out how much it may cost.  There is no reason to move forward with the actual appraisals, because they could become stale depending on how long the divorce process takes and they could not be needed if you agree with your spouse about the value of the asset.  That said, having a few names in your pocket now, could come in handy later.  If you are not able to find an expert on your own, your attorney should be able to help you with this process.

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

Thursday, January 22, 2015

Operation Organization Day 16

Each weekday this month, we are addressing one task that you can complete in order to help you prepare for moving forward with your divorce.  Today’s task is:

RESUME

Update your resume, especially if you have been a stay-at-home parent or have been working part-time.  The harsh reality of divorce is that each party may need to look for new or better paying jobs, because income in a divided house simply does not go as far.  It takes more income to operate two separate households than it does one joint household.  Even if you expect to receive support from your spouse, in the vast majority of cases, it will not be enough to live on without sufficient earned income.

If you have let certifications lapse or you need to do continuing education, start looking into what would be required to update your resume and re-enter the workforce.  It is easier to start looking for a job before you desperately need one.

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