Tuesday, September 30, 2008

New Website for Pennsylvania Judicial System

The Unified Judicial System of Pennsylvania has completely revamped their website. You can find court opinions, information on the administrative office of Pennsylvania courts, forms and much more. Click here for access to the new website.

Friday, September 26, 2008

Quote of the Day

Always bear in mind that your own resolution to succeed is more important than any other.


- Abraham Lincoln

Thursday, September 25, 2008

Quote of the Day

Dreams are today's answers to tomorrow's questions.

- Edgar Cayce

Monday, September 22, 2008

Child In An Institution - Does Child Support Continue?

The Superior Court of Pennsylvania recently faced a case wherein a child was temporarily admitted to a mental health institution. Apparently Mother had full custody and Father was required to pay child support in the amount of $50 per month. Although the child was institutionalized, he returned to Mother’s residence approximately every other weekend and Mother visited him at the institution, bringing him gifts and necessities. Upon application from Father, the hearing officer suspended Father’s obligation for child support, noting that Mother could file a petition to reinstate once the child was returned to her home full time.

The Superior Court disagreed with the trial court and specifically recounted how Mother visits the child and also buys him both gifts and necessities. The court noted how Mother is performing the parental responsibilities of someone who has a child receiving in-patient care. Clearly, the court noted, Mother is the only nurturing parent for a child who needs both support and love. Mother incurs travel expenses, maintains the home where the child will return after his treatment and provides items for him while he is in the institution. The Superior Court went so far as to note "to permit suspension of support based upon temporary institutionalization invites a plethora of petty legal challenges that would impose a significant burden on our judicial resources."

Notably, the child support in this case is only $50 per month. Clearly, if Mother is maintaining the home for the child, buying his clothes, other necessities and small gifts and traveling to and from the institution, $50 barely makes a dent in her expenses. Notably, the time and resources spent on this case far exceeds any potential benefit to Father in his child support obligation, and could have been put to better use than to fund litigation.

If you would like to view the entire Opinion, for an excellent outline of the law in this area, please click here.

Wednesday, September 17, 2008

Does More Education Make You A Better Parent?

This summer, the Court of Common Pleas of Centre County, Pennsylvania decided a case wherein father requested primary custody of his son, on the basis that he could provide a better environment, because he was more educated and successful than the mother. In Breakall v. Breakall, the father argued that the mother in this case had a limited education, limited English language skills and no real career or aspirations. Father works successfully as a professor and was highly educated. Additionally, he felt he had the skills necessary to help his son with his academic pursuits and assist him in reaching his goal of attending the United States Naval Academy.

After reviewing all of the factors, the court concluded that the child should remain in his current situation, because he was thriving. "When both parents are otherwise fit, one parent’s role as the primary caretaker may be given weight as the determining factor by the court[,]" the court stated, citing Wiskoski v. Wiskoski, 629 A.2d 996 (1993). In this case, the court found that the intangible benefits of stability and support that mother offered the son were valuable to his development and well being.

Custody cases tend to be fact-specific. Since courts are vested with broad discretion, it sometimes can be difficult to predict an outcome in a custody case. Parties should consider potential outcomes very carefully before embarking on expensive, time-consuming and sometimes hurtful litigation. I wonder about the relationship between the parents in this case, now that the father has taken such pains to denigrate the mother’s station in life.

Tuesday, September 16, 2008

Pennsylvania Child Support Estimator (NOT CALCULATOR!)

Many frantic clients call and request a quick, down and dirty estimate:

"How much child support will I pay (or receive)?"

That question is impossible to answer without comprehensive information regarding the case, including: income (or earning capacity) of both parents, custody schedule and extraordinary expenses like tuition or daycare. Additionally, decisions regarding child support can vary from county to county and even from master to master, or judge to judge.

Attempting to estimate child support without all of the proper information can be extremely misleading - and subject a party to disappointment.

Child support calculators, without guidance from an experienced practitioner, can be virtually useless -- because if you do not enter accurate information into the calculator, you will not receive accurate results. The old adage: GARBAGE IN- GARBAGE OUT applies.

That said, the Pennsylvania child support website has posted a child support estimator. You may wish to attempt to calculate a child support obligation using the calculator. However, be aware that this estimator could vary wildly from the actual results you receive in court.

Click on the links below:

OVERVIEW

DISCLAIMER

SUPPORT ESTIMATOR

Again, BEWARE. The actual child support you pay or receive could vary wildly from your results on this estimator. As with virtually all legal issues, consult with a local attorney familiar with this area of the law.

Friday, September 12, 2008

Interviews of Children by the Court

In some counties, judges insist on interviewing children in connection with child custody matters. Each judge has a different style and different policies regarding when the children are interviewed. Additionally, not all judges automatically interview children.

As an attorney, I have sat in on many of these child interviews. As a general rule, children generally say less rather than more and rarely speak out against one parent. This is important for battling litigants to understand as most parents assume that their children will prefer one parent over the other. Generally speaking, that is not the case. Parents who attempt to hinge their entire child custody case on a child’s alleged preference are often bitterly disappointed.

The Pennsylvania Rules of Civil Procedure do provide direction as to how these interviews will take place and the Rules are clear: the judge must have a court reporter making a record of the testimony and, attorneys may be present if they wish.

In the case of Ottolini v. Barrett, the judge apparently interviewed the children without allowing counsel present and also without having a court reporter record the interview. The Superior Court found that was in error. This case also examines the use of an expert report and specifically notes that when the court ensures that the expert will be available for cross examination, if the expert does not appear, that would be error on the court’s part.

You can read the full Opinion here, which was filed on July 14, 2008 and arose out of the case in Potter County, Pennsylvania.

Wednesday, September 10, 2008

I Want the Dog on Wednesdays and Every Other Weekend

Shetland Sheepdog, Stormer Kerns, (9 years old)



In Pennsylvania, courts treat pets as they do any other piece of personal property -- one more thing to divide between warring spouses. By and large, judges show little patience for fights over animals and will not even consider making any type of pet custody arrangement a court order -- even if the parties agree. Thus, man's (or woman's) best friend, receives the same treatment as a chair, picture or bank account - it goes in wife's column or husband's column.



A Senate Bill is currently pending before the Pennsylvania General Assembly that would provide for special treatment of pets in divorce proceedings so that they are considered as a special category of personal property rather than lumped in with all the other property to bicker over. While "this is mine - that will be yours" may work for a television, furniture or car, it is rarely the humane solution for a beloved family pet.



To read the full text of the proposed bill, supported by my friend and fellow Philadelphia divorce lawyer, Albert Momjian, Esquire, please click here. If you support the legislation, contact your state senator. If you do not know your state senator, click here to find them.

Tuesday, September 09, 2008

Forgiveness

You will know that forgiveness has begun when you recall those who hurt you and feel the power to wish them well.


— Lewis B. Smedes

Friday, September 05, 2008

The Three Pony Rule and a New York Giant

In the 1990's, a Kansas Appellate Court opined on a child support case involving parents of financial means that "no child, no matter how wealthy the parents, needs to be provided [with] more than three ponies." In that case, the court was attempting to define what is reasonable especially in cases where the family has access to virtually unlimited wealth.

This week, the Appellate Division of the Superior Court of New Jersey quoted the "three pony rule" in a child support case involving Michael A. Strahan, a New York Giants football player. You can read the complete Opinion here.

Apparently, Michael met Jean in 1994. At the time, she earned income as a model and a manager for a cosmetics company in the neighborhood of approximately $70,000 per year. They married in 1999 and become the parents of twin girls in 2004. According to the Opinion, Jean signed a Prenuptial Agreement prior to the marriage.

Michael filed a Complaint for Divorce in March 2005, before the twins were six months old. The parents apparently agreed that Jean would have primary residential custody of the girls. Although the Opinion does not specifically state so, presumably Michael’s football schedule precluded him from even considering being the primary residential parent during a good part of the year. The parties divorced after an 11 day trial in the summer of 2006. As 11 days is an extraordinary amount of time for a divorce trial, one can presume it was both expensive and acrimonious.

The parties engaged in significant post judgment bickering over the Prenuptial Agreement, equitable distribution, child support, disability insurance for Michael and counsel fees. The parties resolved some issues but could not agree on child support, disability insurance for Michael and counsel fees.

The trial court in this matter entered Orders on all three issues which were soundly overturned by the Appellate Court. Notably, an Appellate Court will usually not overturn a trial judge’s ruling in a domestic relations matter absent a significant abuse of discretion. Here, the Appellate Court obviously felt the trial judge was simply wrong.

In New Jersey, in high income cases, courts may supplement the guideline child support amounts based on the discretionary income available to the family and the children’s reasonable needs. Here, the trial court calculated that the basic child support amount under the guidelines was approximately $3,000 per month but these children have a supplemental need of approximately $17,000 per month so that the reasonable monthly needs of these twin girls, who are now toddlers, is slightly less than $20,000 per month. The court calculated that Michael earned 91% of the parties combined net monthly income and Jean earned 9%, thus ordering Michael to pay approximately 91% of the slightly less than $20,000 per month in child support, in addition to medical insurance, unreimbursed medical expenses, 80% of the agreed upon extracurricular activities and college expenses. (Jean’s income came from the interest and dividends she receives from the millions of dollars she received in the divorce settlement.) You can review the Opinion for the exact numbers.

Notably, during 2006, Michael earned approximately $5.87 Million dollars per year. Accordingly, he certainly had the ability to pay much more than the court ordered child support so ability to pay is not really the issue here. Rather, the Appellate Court found that the basis on which the numbers were calculated was simply not reasonable and not based in fact. Thus, the court cited the Kansas "three pony rule."

Just because Michael could afford to pay $20,000 per month (or even $50,000 or $100,000 per month), that does not mean that amount would be reasonable. While children should share in the good fortunes of their parents, parents also have a right to determine the lifestyle of their children which may include not spoiling them with every luxury available. Here, the Appellate Court was specifically critical of Jean’s claim that the "children" sent their nanny and her family to Jamaica for a 10 day vacation. Additionally, $27,000 per year for clothing for the girls was deemed unreasonable (even though Jean claimed that one of the three year old girls insisted on having her own purse when she left home). Jean apparently also included $30,000 worth of landscaping per year and the court obviously wondered how that benefitted the children.

In addition to the amounts claimed as reasonable for the children, the Appellate Court was concerned that the trial court did not impute any type of earned income to Jean. Apparently she has two college degrees and had been able at one time to earn $70,000 per year. The Appellate Court specifically noted that the children have had nannies since their birth, obviously freeing up Jean’s time to engage in at least some work. Notably, Jean had received $10.5 Million dollars in liquid assets at the divorce, which would result in a conservative yearly return of approximately $500,000 annually or, after considering taxes, approximately $28,000 per month. Clearly, this is not a case of a destitute mother.

Curiously, the trial court also ordered that Michael maintain a "disability policy" in the amount of $7.5 Million dollars, apparently concerned that should he become injured or disabled, he would lose his income. Apparently, while the case was pending, Michael announced his retirement from professional football which the Appellate Court noted in its decision. As that was not necessarily a matter of record in the case, the Appellate Court most likely improperly commented on that fact. However, the court’s decision in denying the need for disability insurance rested in the fact that if a trial court intends to secure child support, that must be in a reasonable manner. Here, the trial court had required $4 Million dollars in life insurance, yet $7.5 Million dollars in disability insurance and did not explain why a potential disability should be insured to that extent. Additionally, and perhaps most importantly, Michael had provided evidence that he was simply unable to secure that type of disability policy, considering his age and injuries.

The trial court had also awarded Jean approximately $14,000 in counsel fees but the Appellate Court overturned that, finding that Michael had not litigated in bad faith and, moreover, the parties’ Prenuptial Agreement was clear that neither party would be responsible for the other’s counsel fees.

Finally, out of apparently frustration, Michael had requested that if the Appellate Court had decided in his favor (which they clearly had), that the case be sent back to the trial court but assigned to a different judge based on what Michael perceived as bias. The Appellate Court refused this one request, so the trial court in this matter will no doubt have to face these parties again. Of course, the severe wrist slapping from the Appellate Court should keep the trial court in line.

One may wonder why a professional football player, who had his wife sign a Prenuptial Agreement, still had to go through such extensive and expensive litigation. Assuming the Prenuptial Agreement was airtight, exposure to litigation expense always exists when children enter the scene. Because child support and child custody decisions are determined in the best interests of the children, based on the circumstances at the time of the litigation, it is virtually impossible to contractually protect oneself from child support liabilities or losses in a child custody fight. Simply put, most, if not virtually all, child support and custody language in Prenuptial Agreements is unenforceable. One can at least attempt to limit exposure, by tying the hands of the less financially secure party by insisting on a waiver of alimony and/or equitable distribution, which will potentially leave the party without the funds to litigate a child support and custody matter. However, in this case, Jean received millions upon millions of dollars even after a short term marriage.

Thursday, September 04, 2008

Protection From Abuse

Pennsylvania’s Protection from Abuse statute allows certain persons to obtain protection (a restraining order) against abusers. The abuse is clearly defined in the statute and includes causing or attempting to cause bodily harm, placing another in reasonable fear of harm, false imprisonment, abuse towards children and certain repetitive acts which constitute harassment. To obtain a Protection from Abuse Order in Pennsylvania, generally, a party must allege that abuse occurred, as defined in the statute. Generally, upon an allegation of abuse, a court will grant a temporary restraining order. However, a trial must usually be held within ten (10) days and, at that trial, the victim must prove that the abuse occurred. The court then has the power to grant restraints that last for up to three (3) years. These restraints could include removing the abuser from the home, even it is titled in that person’s name.

The Superior Court of Pennsylvania recently addressed a protection from abuse matter, from Chester County, wherein the victim complained that her husband had threatened her by cocking a gun. The Opinion is interesting because it lays out the underlying facts, including why the victim felt abused and why the perpetrator did not think his behavior constituted abuse. Significantly, the Opinion also includes the exact wording of the Protection from Abuse Act.

You can read the full Opinion here. Since the restraints that can be put in place as a result of a protection from abuse can be so significant (removal from the home for up to 3 years), parties should seek independent counsel in the event they are the victims or perpetrators of abuse to understand their rights and determine the best course of action.

Wednesday, September 03, 2008

No More Marriage Equals No More Health Insurance (Sometimes)

When you are terminated from health insurance, you may qualify for COBRA coverage. Divorce is a termination event so if you are covered under your spouse’s health insurance, you may become ineligible when a divorce is finalized. COBRA is the federal law that allows you, in some cases, to continue a health insurance plan sponsored by an employer. However, not all companies are subject to the COBRA law.

COBRA coverage (simply continuing your current coverage for a fee) is not always the best option as it can be expensive. COBRA provides that you are responsible for the entire premium paid by your employer in addition to an administrative fee. Therefore, there may be less expensive alternatives available for you. Additionally, and quite importantly, COBRA usually only lasts a certain amount of time (usually 18 months) so you will most likely eventually need to purchase your own plan anyway.

If you are facing the end of your marriage, and therefore the potential end to your health insurance coverage through your spouse, you should immediately take steps to determine all of your options. If you are covered by your spouse’s health insurance through their employer, you should first determine whether or not that company is even subject to COBRA. Then, get quotes for other insurance plans, from other sources. If you are young and relatively healthy, you may qualify for a private plan that is less expensive than COBRA coverage. You may also consider full or part time employment that provides medical benefits.

Tuesday, September 02, 2008

Dependency Exemptions

Recently, the Internal Revenue Service released new regulations regarding claiming a child as a dependent by parents who are divorced or separated. The Internal Revenue Service comprehensively analyzed the regulation and clarified some of the points. As these details can be extremely case and fact specific, you should consult with your accountant, especially if you share custody of a child.

Most notably, the IRS addressed Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents). The IRS is now requiring that that form be attached to returns and even stated in the regulation that: "A court order or decree or a separation agreement may not serve as a written declaration." This is important because many state court judges address the claiming of a child in a court order. According to these new regulations, the court order alone will not be enough for the IRS. Therefore, if a dependency exemption is awarded in a court order, you should also obtain a signed Form 8322 from the other parent. The regulation section is 1.152-4. You can download a Form 8322 here.

Contact your accountant for advice regarding your specific situation.