Wednesday, December 31, 2008

Certificates of Birth, Death, Marriage and Divorce

Where is your birth certificate? Your marriage license? Your decree in divorce? Have you lost or misplaced these important papers?

If you need to replace them, and the event (birth, marriage, divorce) occurred in Pennsylvania, please click here for a list of Pennsylvania counties and telephone numbers you can contact to obtain a duplicate. Keep them in a safe place -- and scan a copy onto your computer.

Tuesday, December 30, 2008

I Just Have a Quick Question . . .

It seems that, as a divorce lawyer, I am often approached with "just one quick question." People hope for advice in a nutshell, words of wisdom to help them through a difficult time or just the secret to an easier divorce from an expert.

My general policy is to refrain from doling out tidbits of advice, not because I do not want to help people, but actually because I am concerned that, without knowing the full story, my advice could hurt, rather than help.

During a consultation (for any type of case: divorce, custody, support, division of assets, general litigation, taxes, etc.), I take a complete background from the client. Sometimes people stop me and say, "Why is that relevant?" I can assure you that anything a lawyer asks is relevant to the issues at hand and could play into the total picture.

I ask a battery of questions during my initial consultation -- ranging from where the client was born to an accounting of the assets and debts. Each answer provides another piece to the puzzle and helps me to apply the law to the specific facts of the case -- tailoring my advice to each individual situation.

There have been times that I have bent my rules and attempted to help answer a questions based on a scenario posited by a friend or family member. By way of example, a friend came to me for advice on a custody issue - he and his girlfriend had separated and were involved in a custody battle over the children. We had a few brief phone conversations and I tried to give him guidance. However, he failed to mention to me that when his children were born, his girlfriend's divorce from her former husband had not yet been finalized. This raised a signficant issue regarding presumption of paternity, that his girlfriend exploited in the custody battle. I would have picked up on that issue if it had been a formal consultations as one of my standard questions is the marriage and divorce history of each of the parties. Luckily, the situation worked out but it taught a valuable lesson: without a comprehensive understanding of the facts and circumstances of a case, a lawyer's advice will be compromised.

If you are facing a legal situation, it will be resources well spent to engage a lawyer for a comprehensive consultation -- to ascertain the facts, point out the pitfalls and give you guidance as to the best way to proceed. Let the lawyer ask the questions - and answer them completely and truthfully. Every additional piece of information is part of the bigger picture.

Monday, December 29, 2008

Split with Grey's Anatomy, Now Split with her Husband

In September, 2007, Kate Walsh, a former star of television's Grey's Anatomy who moved on to her own series, Private Practice, married Alex Young, an executive at 20th Century Fox, after a whirlwind courtship. Her husband filed for divorce on November 22, 2008, approximately two and one-half months later. In her counter-filing, Walsh alleged that the couple had actually split on November 17, 2008, five days earlier than her husband had stated.

Why the fight over the separation date? Could this factor be significant or is this just as case of Hollywood high drama?

Separation dates can have far reaching implications when it comes to divorces. Generally, property acquired before the separation date will be considered marital property, subject to equitable distribution. Property acquired after the separation date will generally be considered the separate property of the individual who earned or acquired it.

In this case, during that disputed five days, Ms. Walsh may very well have acquired a bonus, salary payment or other property. By alleging a separation date before receipt of that property, she may be successful in excluding it from the marital estate. The Hollywood rich and famous are not the only litigants concerned about separation dates. People earning pensions, bonuses, stock options, lotteries and other windfalls will also find the separation date to be extremely signficant.

Kate Walsh and her husband have been mum on the reasons for the separation date dispute, but, more likely than not, whatever date is chosed will have signficant financial consequences.

Before you file for divorce, or put anything in writing about a separation date, consult with an attorney regarding the consequences to the distribution of marital property.

Sunday, December 28, 2008

Two Countries, Two Continents, Three Children, Three Courts, Four Plus Lawyers . . .

Recently, the Superior Court of New Jersey, Appellate Division, decided a custody case spanning two continents. Mother and Father, born in Greece, became naturalized United States citizens. They married in New Jersey in 1991 and had three children, two born in New Jersey and one in Greece. In 1995, they returned to live in Greece.

In 2003, Father and two of the children returned to New Jersey. Mother and one of the children stayed in Greece. Father contends that this was a family relocation and Mother was planning to join them in New Jersey. Mother contends that this was merely a visit, and the family planned to continue residing in Greece.

Mother filed petitions in Greece and Father filed in New Jersey. Mother also filed an action under the Hague Convention on the Civil Aspects of International Child Abduction in federal court in New Jersey.

The parties disputed the payment of counsel fees and expert fees, as well as custody of one of their children (they appeared to agree on an arrangement involving the other two children.)
The opinion recites New Jersey law as to what constitutes "best interests of the child." Additionally, the opinion also provides a review of the law applicable in jurisdictional disputes. Ultimately, the New Jersey court took jurisdiction of the matter and Father prevailed on his concerns regarding custody.

Whether spanning continents, countries, states, or counties, disputes over jurisdiction can be the most time consuming and expensive of custody cases. Consult with an attorney immediately if you plan to move, or you fear that the other parent could leave the jurisdiction.

The name of this opinion is J.A. vs. A.T., Docket No. A-3003-07T4, December 11, 2008.
(Links often expire approximately ten days from date of post.)

Thursday, December 25, 2008

Contempt of Court

A court may enforce its orders (support, custody, equitable distribution, etc.) by finding a litigant in contempt in an effort to compel compliance. Contempt sanctions may include fines, imprisonment, and other punishments.

Generally, if a person is jailed on contempt charges, as soon as the conditions of release are met, the person is released. However, one man has been sitting in a Delaware County Jail for 14 years, and counting, on charges that he hid $2.5 million from his wife during divorce proceedings. H. Beatty Chadwick, a former attorney, is now spending his fourteenth Christmas behind bars. He swears the money was lost in an investment but his ex-wife and her attorneys maintain that he is hiding it. The court continues to agree with the ex-wife. He has set a record fro the most time behind bars on a contempt charge.

The Philadelphia Inquirer included an article on the case with background information. Click here for the article.

The enforcement powers of the court has landed many otherwise law-abiding citizens in lock-up or faced with fines. If you are facing a contempt charge, the threat of imprisonment is very real. Consult with an attorney regarding your options.

(Please note that links may expire in ten days.)

Wednesday, December 24, 2008

Merry Christmas!

Wishing you a Merry Christmas, Happy New Year, a Joyful Holiday Season and lots of love and happiness!

Preserving Your Issues For Appeal

Non-lawyers often do not realize that in virtually all situations where a trial level case is appealed, the issues raised in appeal must have been properly preserved at the trial level. An appeal is not simply a second chance to present the same material. Accordingly, forgetting to mention something during a trial, not properly preserving an objection, failing to object to impermissible evidence, and failing to raise certain issues may mean that they are lost forever. The appellate rules prevent simply retrying the case at the next level.

An excellent example of appellate procedure is found in a recent case wherein a Father had a Protection from Abuse Order entered against him by the court. The persons protected by the Order were the parties’ children, as well as the Mother. Additionally, Father was excluded from Mother’s residence. As a Protection from Abuse Order can often stay in effect for 3 years, having a final Order against someone is an especially harsh remedy. On appeal, Father challenged the ruling and the sufficiency of the evidence. Among his complaints, he stated that the trial court did not allow him to present an opening statement or closing argument, prevented him from presenting witnesses, limited and/or rushed his cross examination of Mother’s witnesses and did not enforce a Sequestration Order.

The Superior Court considered Father’s arguments and found all without merit, affirming the trial court’s Protection from Abuse Order.

In its Opinion, the Superior Court specifically stated the law in this area:

Our law is clear that,

[i]n order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue. On appeal the Superior Court will not consider a claim which was not called to the trial court’s attention at a time when any error committed could have been corrected. In this jurisdiction . . . one must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.

Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000).

Unfortunately, many litigants are not aware of the power of the trial court and may attempt to handle a case on their own or fail to give their best effort, thinking that it can be corrected on appeal. However, not all errors on the trial level can be corrected on appeal. Accordingly, if the issues are important enough, each level of litigation should be approached with comprehensive care, attention to detail, and an aggressive and thorough plan.

To read the entire Opinion regarding the PFA case cited above, please click here for Thompson v. Thompson, 2008 Pa. Super. 285 (December 16, 2008).

(Please note that most links expire after approximately 10 days.)

Monday, December 15, 2008

Interesting Essays

Click here for an essay from a teenager, describing her parents' divorce.

Click here for another author's perspective on the changing role of fathers and the trend towards joint custody.

(Please note, links usually expire in ten days.)

Wednesday, December 10, 2008

Quote of the Day

All grown-ups were once children. (But few of them remember it.)

- Antoine De Saint-Exupery

Sunday, December 07, 2008

Parenting Coordination

Some parents experience difficulty communicating and agreeing on the most basic of levels: what time should we exchange the children . . . how do we coordinate transferring their belongings (books, clothes, sports equipment) . . . how do we mutually agree on doctors and dentists?. . . . . ?

Some of the disagreements rise to another level: should we medicate our child . . . what school is best . . . how do we consistently discipline . . . ?

Practically speaking, courts sometimes cannot handle the management of these disputes - either it will take too long to get a court date or perhaps it is cost prohibitive. Additionally, looking to the court to resolve ever dispute does not provide the parents with the tools to assist them in learning how to cooperate with each other.

Court in Pennsylvania and New Jersey have been appointing "Parenting Coordinators" for a few years now. The concept is still new and finding the appropriate professional who is the right fit can be a challenge.

For information on the New Jersey program, click here. For a Pennsylvania Superior Court case on the issue, click here.

(Please note, links may expire in 7-10 days.)

Friday, December 05, 2008

Will I Get A Divorce?

Many people quote America’s divorce rate as 50%. However, statistics can be deceiving. The probability that you will divorce depends on a variety of different factors, such as the age of the spouses at the time of marriage, when you married, education levels, income and socioeconomic backgrounds. Additionally, the percentage can differ depending on your pool - 50% of all marriages this year is a different number than 50% of all marriage in the last ten years.

An Assistant Professor of Business and Public Policy at the University of Pennsylvania’s Wharton School, Betsey Stevenson, has actually developed a calculator to help demonstrate how the incidence of divorce evolves throughout the life of a marriage. In developing the calculator, the author used data from the U.S. Census bureau so that a user can enter certain data and discover how people with that type of background have faired in the marriage world. You can access the calculator by clicking here.

The calculator is merely a statistical analysis and cannot take into account the human factors. As a divorce attorney, I have seen what seems like an infinite number of reasons why people divorce: substance abuse, infidelity, disappointment in economic status, difference in values, fights over children, mental illness and general incompatibility, to name a few. A statistical calculator like this one cannot take all of those human factors into account. Additionally, and perhaps most importantly, for every marriage that involves one of those types of problems that fails, another marriage may survive. However, the calculator may help those who are thinking of taking the plunge and perhaps provide food for thought.

Wednesday, December 03, 2008

Kids and Divorce

What should you tell your children about your divorce or separation? Children want to feel safe and secure. As an adult going through a divorce, the pain can be excruciating. However, at least adults have the capacity to understand the situation. Children are often not equipped to deal with the myriad of feelings brought about by their parents’ separation.

You can click here for "A Kids’ Guide to Divorce." This helpful website puts divorce in terms that children can understand. If you read this prior to talking to your children, you may be armed with better language to assist you in discussing this most difficult topic with children.

Monday, December 01, 2008

Custody, Vacation & Holiday Schedules

Now that Thanksgiving has come and gone, hopefully anyone who shares custody of their children had a smooth holiday and was able to either share the day or knows that because they alternate, they will see the children next year for the Thanksgiving holiday.

Unfortunately, many people who develop custody schedules often forget to put their holiday and vacation schedule in writing. Many custody schedules include a line that states something simple like: "Holidays and vacations to alternate by agreement." However, this type of a plan is not always effective.

Holidays and vacations take planning.

Parents need to make arrangements in advance with other family members or to coordinate travel plans. In order to do so, parents need to have mutual expectations regarding their schedule. Therefore, in order to help smooth out the relationship with the other parent, it is best to map out holidays and vacations in advance. That way, you have something in writing, to fall back on, in case it comes time for the holiday or vacation and you and the other parent cannot agree. There is no better way to ruin a holiday than to find out the night before, or the morning of, that the children will not be coming. And if you have assembled extended family, the disappointment envelopes the whole holiday.

The first step in planning a holiday and vacation schedule is knowing which holidays are important to you and when you like to take your vacations. This may sound simple, but not everyone celebrates every holiday. Thinking about which ones you would like to celebrate with your children can open up some bargaining chips in negotiations with the other parent. For example, if you and your family have a big Fourth of July picnic every year but you usually work on Labor Day, perhaps you can negotiate with the other parent so that you always have July Fourth in exchange for the other parent always having the Labor Day holiday.

The first thing to do is to list the holidays that you may celebrate and determine which are important to you. Here is a list, probably not comprehensive for every family, but it should give you a good start:

Martin Luther King Day
President’s Day
Spring Break
Mother’s Day
Father’s Day
Memorial Day
Fourth of July
Labor Day
Columbus Day
Veteran’s Day
Fall Break
Rosh Hashanah
Yom Kippur
Christmas Eve
Christmas Day
New Year’s Eve
New Year’s Day
Winter Break
Here are some tips to consider when thinking about holidays and vacations. Being detail oriented now will help you to have stress free holidays and vacations for years to come. Remember the following:

1. If you travel, what would be the best pickup and drop-off times. For example, if you spend Thanksgiving at a relative’s house, two hours away, allow for travel time.
2. Who should provide transportation?

3. Are there holidays that you celebrate and the other parent does not? Use these as a bargaining chip.

4. Consider your work schedule and the children’s school schedules.

5. If there is a Monday holiday, would you like it to include the entire weekend or just Monday during the day?

6. Would you like to define Thanksgiving as the entire weekend, to allow for travel?

7. Should school breaks be alternated and rotated or divided midweek?

8. Would you like your custody schedule to include Mother’s or Father’s birthday or the child’s birthday?

9. Go through the list carefully – are there other holidays you would like to add that your family celebrates?

10. Reduce all agreements to writing and have it incorporated into an enforceable court order. You can always negotiate changes between yourselves but, in the event of a misunderstanding, you will have a set agreement on which to rely.

Best wishes for happy and stress free holidays.