Friday, May 30, 2008

An Agreement is an Agreement is an Agreement

Recently, the Appellate Division of the Superior Court of New Jersey fielded a request from a former husband who asked that his alimony of $1,500 per month be terminated when he realized that his former wife was earning over $90,000 per year as opposed to the $46,000 per year she earned several years ago at the time of the divorce.

This Opinion, Pechinka v. Pechinka, is not approved for publication so it has no precedential value. However, it does give guidance into the thinking of the Appellate Court.

In this case, at the time of the divorce, the husband had earned $116,000 per year and the wife had earned $46,000 per year. The parties agreed that the husband would pay the wife $1,500 per month for a period of 10 years, thus adding $18,000 per year to her income. Accordingly, after adjusting for the alimony, husband had $98,000 a year available income and wife had $64,000 a year available income.

When the husband learned that his former wife’s income had increased to over $90,000 per year, he realized that, with the alimony he was paying her, she was enjoying approximately $109,000 per year, while his income, after adjustment for alimony, was still $98,000 per year. Ultimately, the court denied the former husband’s request to modify the alimony, and held him to the original agreement.

Property Settlement Agreements are difficult to negotiate as no one has access to a crystal ball regarding the parties’ circumstances years into the future. Unfortunately, the drafting and negotiating of a Property Settlement Agreement often comes at the end of a long divorce process. The parties are fatigued and often just want to "get it over with." However, that type of attitude can sometimes result in a Property Settlement Agreement that eventually becomes inequitable.

Generally speaking, contract principles govern Property Settlement Agreements. Of course, there are exceptions to the contract principles, such as custody and child support provisions, which are modifiable based on a change in circumstances and/or best interests of the child.

By way of extreme example, a Property Settlement Agreement may later seem inequitable if one spouse agrees to pay the other spouse non-modifiable alimony for a certain term, only to see that spouse win the lottery the next month. Even under those circumstances, if the parties agreed that alimony would non-modifiable, a court normally would not change the agreement. While no one can look with certainty into the future, it is important to negotiate and think about the terms of Property Settlement Agreements carefully and include contingencies for possibilities that may arise. No one can guard against every possible outcome but a thoughtful, well-reasoned Property Settlement Agreement will usually stand the test of time.

Tuesday, May 27, 2008

Compatibility Humor

At every party

there are two kinds of people — those who want to go home and those who don’t. The trouble is, they are usually married to each other.

— Ann Landers

Wednesday, May 21, 2008

Internet Resources for Divorce

This past weekend, in the business section, the Philadelphia Inquirer included an article outlining some divorce related web sites available on the internet. To see the article, written by Reid Kanaley, click here.

Background research (internet or otherwise) can provide you with a comfort level as you embark on the often uncomfortable divorce process. However, before making any decisions, or assumptions about your matter, invest in a one to two hour consultation with an experienced divorce attorney, familiar with the procedure in your county. Good advice in one case could be disasterous in another so remember that your background reading and research is just that: general background information.

Divorces are like snowflakes: no two are alike.

Monday, May 19, 2008

Personal Injury Settlements

Under the Rules of Civil Procedure, a lawsuit settlement is usually included in a party’s income in order to determine support. Recently, the Court of Common Pleas in Berks County addressed a case where the father received a single lump sum tort settlement. He requested that the amount be used only in his income during the year that he received the settlement. However, the court found that the amount of the settlement should be amortized over the remaining period until the child became emancipated. The court felt that averaging the money over that period provided the child a steady stream of support money, rather than one year with a higher amount. The Opinion also addressed which portion of the settlement could be considered income.

In any support matter, you should carefully analyze the income of both parties, from every source, and under the child support guidelines, how much and how that income will be used in calculating a child support amount.

Thursday, May 15, 2008

Hollywood Actress TV Show Cancelled - Now She Cannot Afford to Pay Child Support

A court ordered Ann Heche to pay approximately $15,000 per month in spousal and child support to her estranged husband. However, now that her television show is apparently cancelled, she is out of work, and cannot afford the onerous monthly payments. She asked the court to modify the order by filing these documents. Of course, the opposing party objected.

Be Careful - You Usually Cannot Waive Child Support

Sometimes parties attempt to negotiate a divorce, custody or child support case and allow one party to be "relieved of their obligation" to pay child support in exchange for something else. For example, I remember one case where a husband came to me after mediation. He had agreed to allow his wife to keep the majority of the marital assets, which mainly consisted of a great deal of money from the sale of the marital residence. In exchange, the wife agreed to accept a much lower child support amount than the guidelines allowed. The parties settled their divorce on that basis. The husband had not consulted with an attorney before agreeing to this arrangement.

Very soon thereafter, the wife petitioned for an increase in child support and of course that increase was granted. Generally, the courts do not recognize any type of waiver of child support or agreement not to pay child support. Accordingly, in that case, the husband had already given up most of the marital assets. That could not be undone. He was than faced with a much higher child support amount than he had anticipated. This placed him in a financially unfeasible situation.

Recently, the Court of Common Pleas in Bucks County faced a similar issue. Father had custody of the children and Father waived his right to file child support against Mother in their divorce agreement in July. However, as often happens in these types of cases, Father went and filed a petition for child support in September (just a few months later!) and that petition was granted. Mother, of course, appealed, stating that Father had waived his right to child support. However, the court noted that parents have a duty to provide for their children and one parent cannot contract away or waive the right of the child’s representative to seek adequate support from the other parent.

In the rare case, a waiver of child support could be enforceable, as long as the welfare of the children is not prejudiced. By way of example, in some extremely high income or high asset cases, a parent could waive child support in exchange for an extremely high lump sum of money that is designed to provide for the children’s every need, throughout their minority. However, those cases are few and far between.

Before making any type of a waiver, or negotiating any type of bargain for relief, you should consult an attorney. In family law, many agreements are modifiable. You could suffer harm later, and that could have been avoided.

Tuesday, May 13, 2008

Who Is The Daddy?

Most paternity cases involve an alleged father attempting to disprove paternity. In a refreshing twist, the Superior Court recently addressed a case in which a man, who thought he was the biological father of the child and later learned via paternity testing that he was not, nevertheless sued in support court in an attempt to remain part of the child’s life and prove his fatherhood (and presumably pay support), despite the DNA saying otherwise. You can click here for the full opinion. While the court did not allow this gentleman to interfere on the support matter, it specifically refrained from commenting on whether or not he would succeed in custody or visitation litigation.

Monday, May 12, 2008

Co-Parenting Using Computers

I have written about this topic previously but I stumbled across this concept again at a seminar. Divorced and separated families can sometimes have communication issues. When are the children’s activities? When and where are the pick ups and drop offs? Did you tell the other parent about the doctor’s appointments or school meeting? If there are breakdowns in these communication issues, the situation sometimes escalates out of control.

Some families are able to coordinate things using internet calendars. For example, entering information on a Google calendar will help both parents access the information needed to smoothly coordinate their lives.

More sophisticated software is also available. I received a brochure from something called www.ourfamilywizard.com. Families can use this website, for a fee, to coordinate their schedules, share information, adjust parenting plans and track expenses. This may not be the solution for every family, but it is a potential tool. I have never personally used this website so I cannot vouch for its effectiveness.

Thursday, May 08, 2008

The REAL Story - from Someone Who Survived the Divorce Process

What is a divorce really like? I can only speak from a lawyer's perspective. So, I posed some questions to a long time client - so she could share her wisdom and experience. I remember when this woman first retained me - she was devastated by the breakdown of her marriage and terrified as to how it would affect her young children. I promised her that things would get better -- that there would be tough times - but she would feel better.


She has not only survived -- but thrived -- and here are her answers to my questions:

1. What surprised you most about the divorce process?

The divorce process continues to be surprising – even years later. When children are involved, it never really ends.


2. Is there any one thing that, had you known it prior to getting involved in divorce litigation, would have made the process easier?

I think it is important to realize that law is based on prior cases and precedent, not on what seems “fair” or “just.” By the time a couple divorces, each has a bagful of perceived wrongs and injustices and it’s important to understand that the divorce process is not going to resolve any of those for you.
Ending your marriage and moving on with your life is the best way to deal with those.

As much as it feels unfair to me that I have to pay court costs when my ex screws up, even though my agreement reads that he should pay (for one example in a bundle I could cite), that is how the law works at this time. Allow your lawyer to do his or her job. They know the law.


3. What was the worst aspect of the divorce case?

I think the very worst part about divorce is simply fear of the unknown. What will this process and the change in “family” do to the children? What does this mean for family finances? Will I be able to live in the same place and if I move, is that going to further disrupt the children’s emotional and social lives? What am I going to do about work; how am I going to get money, or
make up the savings for retirement that I’ve lost or find healthcare coverage, or…. On and on.


Suddenly the things you thought you knew, that you thought you had planned out over the course of your lifetime – none of those things are true anymore.

The other would be the perception that you have lost control of your life. That’s true to a certain extent – but it’s better to focus on the areas where you still have control and just let the other part slide otherwise you will drive yourself crazy. Focus on the best interests of the children and creating your new life and let the rest of it go.

4. Describe a significant feeling or emotion that affected you during the process.

The loss of independence. Suddenly a court is making decisions that affect your life and your children and the most important thing for people to understand about that is that the decisions are based on law and precedent, not a layperson’s idea of “fair.”


You may have a piece of paper that says something, but it doesn’t mean that any of it will work out the way you anticipated when that paper was signed. A judge may look at that piece of paper but the final decision will be based on all the decisions on the issue that have come before. It may seem terribly wrong to you, but it is how our system functions.

5. Do you have any tips for someone who is just getting involved in a divorce case?

In terms of the legal process, choose a lawyer that you feel comfortable talking to, that you have confidence in and feel you can trust. This is a trying and emotional time and you want your attentions to be on your case, not on where you stand with your lawyer. Emotions are going to run high and you need to be able to listen to advice and trust it, not act from an unreasonable
notion.


In terms of one’s self, my number one suggestion for anyone going through a divorce is to seek out therapy – an objective person you can talk to about anything and everything that is on your mind. For me, divorce felt as though someone had just outlawed gravity. The world turned upside down. A therapist will be your cheerleader on dark days. They will teach you useful communication techniques that can help your post-divorce communication with your ex be productive instead of destructive. My family couldn’t be supportive and a therapist was there for me when I just needed to get out frustration and emotion.


When you need to make big life changes, a therapist can help you break it down into manageable steps and help guide you through the process of starting over again. If the children are having a difficult time and acting up, a therapist can give you guidance and help figure out what steps to take. Depending on the circumstances of your divorce, your self-esteem may be at an all-time low, or you may be suffering from depression and not realize it – a therapist can be a huge help in getting you back to being yourself. A therapist has seen it all and you’ll learn that much of what you’re going through emotionally is actually quite common – sort of like those steps in the grieving process. Somehow knowing that eases the pain a little.


* * * * * * * * * * * * *
A special thank you to my client for sharing her thoughts.


Wednesday, May 07, 2008

About Pennsylvania Courts

Pennsylvania's Judicial System produced a video to introduce and explain our court system. Click here to view a link to the video. Then, click on Pennsylvania's Unified Judicial System Video.

Tuesday, May 06, 2008

Pennsylvania Child Support Forms

Pennsylvania provides some forms online. You can click here for form support complaints, Income and Expense Statements and a Parent Locator Questionnaire.

Click here to visit the main Pennsylvania Child Support website.

Sunday, May 04, 2008

She Is At It Again

The woman who is airing her dirty laundry regarding her divorce on Youtube is at it again. She is apparently of the mind that portraying herself as a vindictive lunatic in her divorce case will invalidate her prenuptial agreement. She is wrong.

Friday, May 02, 2008

Do You Need Life Insurance?

Click here for a calculator that may help you determine if you need life insurance, and if you do, the benefit amount that you should purchase. Your life insurance decisions should be made in the context of your overall financial and estate planning so you should consult with your financial planner and the attorney that drafted your estate plan before making any final decisions. In the meantime, the calculator may be able to help you plan.

Switching Primary Custody from Mom to Dad

The Superior Court of Pennsylvania recently addressed a case in which Mother had primary physical and legal custody of the children since the year 2000 in Pennsylvania. Father resides in California. In 2006, one of the children told Father that he had been sexually assaulted in Mother’s home by the child of Mother’s boyfriend. Father filed a petition in California to obtain emergency custody of the children but that was dismissed due to jurisdictional issues. In the interim, Mother had filed a petition in Pennsylvania. Litigation ensued in Pennsylvania and the court eventually interviewed the children.

Custody of the children was ultimately granted to Father. He went back to California with the children and Mother appealed but did not prevail. The Opinion discusses the reasoning of the trial court and also provides analysis of case law addressing custody. You can read the full opinion here.

Thursday, May 01, 2008

Supervised Visitation

In some circumstances, the court decides (or the parties agree) that one of the parents should not have partial custody or visitation with a child unless that time is supervised by another adult.

Obviously, the court must be convinced that supervised visitation is warranted and the court does not grant this relief lightly. Some compelling reasons must exist.

Once the court orders supervised visitation, the next step is to decide who will supervise. Sometimes, the court can order a family member or trusted friend to supervise. If no one is available, or the court feels that more supervision is needed, in Philadelphia County, visitation could take place at the court nursery at 1801 Vine Street. The visits in the court nursery are usually limited to Sundays and in order to keep everything organized, there are strict rules regarding times, drop-offs and pick-ups and what is allowed in the nursery.

For those outside of Philadelphia County, or for those for whom the court nursery at 1801 Vine Street is not convenient for one reason or another, there are not many alternatives. Some parents use services at a church for supervised visitation. An organization called "Kids First" has begun offering some services in the Pennsylvania area. You can learn more about this organization at www.kidsfirstpa.com. There is a cost to using Kids First but it appears that this organization offers more flexibility than being limited to one meeting place or time.

If you feel supervised visitation in your case is warranted, you should first consult with an attorney, familiar with family law practice in your area, to determine what kinds of factors the court considers in ordering supervised visitation. Then be ready to present ideas to the court as to how the supervision will be provided.