Wednesday, March 31, 2010

Thoughts of the Day

“It takes as much energy to wish as it does to plan.”

― Eleanor Roosevelt




also, courtesy of www.TheDailyLove.com:

If you're looking for The One - start by looking in the mirror!

Saturday, March 27, 2010

Financial tuneup

Click here to view 31 Steps to a Financial Tuneup from the New York Times.

Friday, March 26, 2010

Thought of the Day

"There is no need to go to India or anywhere else to find peace.  You will find that deep place of silence right in your room, your garden or even your bathtub."


- Elisabeth Kubler-Ross

Wednesday, March 24, 2010

Thought of the Day

"Friendship, love, health, energy, enthusiasm, and joy are the things that make life worth living and exploring."

- Denise Austin

Tuesday, March 23, 2010

Do not rely on court staff for legal advice

So often, when litigants attempt to maneuver through the labrynthe of the court system without the benefit of legal counsel, they tend to rely on the direction, advice and suggestions of others, including court staff.  Sometimes, litigants tend to put more faith in something a court staff member says, due to their position as members of the court.  However, court employees cannot give legal advice and interpreting a conversation with a court employee as a specific directive in your own case can sometimes lead you down an incorrect path.

Recently, in an unreported decision, the Appellate Division of the Superior Court of New Jersey specifically noted:  "For future reference, plaintiff should understand that court staff are not judges themselves with authority or the qualifications to make decisions of law, or to express opinions about whether a judge's decision is correct."  To read the full opinion, click here.

The above referenced advice often refers to friends, family members and acquaintances of litigants.  While it is natural to discuss your situation with those around you, and collecting the opinions of others might help you organize your own thoughts, be careful about relying on advice from well-meaning friends who may not have all of the information and expertise necessary to truly guide you.

Monday, March 22, 2010

The first step

If you are sure you are headed towards divorce or separation, one of your first tasks will be identifying the assets, debts and income of you and your spouse. 

The best place to start?  Gather the tax returns for at least the three previous years.  If you do not know where to find your tax returns, you can order them from the IRS.

Use your tax return as a guide to identifying any investment accounts.  If they are earning interst or dividends, the names of the institutions should appear on Schedule A.

Do you own a home?  Your lawyer will need to see a current mortgage statement (plus any homeequity loan statements) and information on the house's current value.  You can try to estimate by looking for comparable recent sales in your neighborhood.

Debts (as well as assets) are divisible in divorce.  Gather copies of all of the credit card accounts - whether in both spouses' names or held individually.  If you are not sure if you have any debts, order a credit report.

If you have children, ascertain their fixed expenses such as daycare, camp, lessons, tuition or extracurricular activities.

Do you and your spouse have retirement accounts?  Obtain the most recent statements.

Recent paystubs are helpful in understanding income but for those who receive bonuses or commissions, more information is usually needed in order to calculate earnings.

If you are able to gather basic information about the aassets, debts and income, you can begin to create a picture of the marital estate so you can have a better idea of the issues that will need to be addressed.  For more information on this information gathering stage, please review my website where I discuss consultations.  I provide a comprehensive list of items to gather in preparation for making an appointment with a lawyer.  And, do not fret if you cannot find your documents -- your lawyer can assist you in obtaining copies or compelling your spouse to share the information with you.

Sunday, March 21, 2010

What exactly is COBRA?

If you are dependent on your spouse's health insurance (or your spouse is dependent on yours), most people think that "COBRA" will take care of everything -- even though very few people have a clear idea of the many rules surrounding COBRA.

For example -- not every employer is mandate by law to offer continuing health insurance after a termination event.  Also -- sometimes, the cost of making payments for continuing health insurance through COBRA can be more expensive than finding your own plan.

If you are facing a termination event (loss of employment, divorce, etc.), first get the facts.  GO to the Department of Labor website and understand your options.

Friday, March 19, 2010

Thought for the day

“You have to have confidence in your ability, and then be tough enough to follow through.”



― Rosalynn Carter

Wednesday, March 17, 2010

The grave issue of termination of parental rights

Although parents have a fundamental interest, protected by the Constitution, in their own children, the state can terminate parental rights if clear and convincing evidence shows that it would be in the child’s best interest. Generally, these cases come about when the child suffers severe abuse or neglect and the parent does not possess the appropriate skills or is impaired in some way.
Recently, in New Jersey, a mother appealed the termination of parental rights of her son, her fourth child. Notably, she had lost custody of three other children due to both substance abuse and mental health issues.

Like her other children, her youngest child, “R” was born testing positive for drugs. Specifically, R tested positive for both PCP and cocaine. Mother testified during trial that the PCP was not her fault because she had borrowed a cigarette from someone while pregnant and did not realize that it had been laced with PCP. Apparently, when you are dealing with a mother who is ingesting drugs, the thought of smoking a cigarette while pregnant does not seem that great of a sin and is actually a defense to the more severe crime of illegal drugs. The Court, thankfully, did not buy her story.

If you would like to read the entire Opinion, which lays out the law with regard to termination of parental rights, you can get it by clicking here. Please note that this Opinion is not published by the Appellate Court and therefore cannot be used as precedent.

Thought of the Day

"In the long run, you make your own luck - good, bad, or indifferent.


- Loretta Lynn

Happy St. Patrick's Day!

Tuesday, March 16, 2010

Keep it simple

The Superior Court of New Jersey, Appellate Division, recently considered a case wherein a husband faced contempt proceedings, including incarceration, for his failure to stay current with his alimony payments. Husband contended that his former wife was now cohabiting with another man and that factor alleviated his alimony obligation.

Whether you live in Pennsylvania or New Jersey, this case provides an outline of how not to conduct yourself in support litigation.

You can read the full Opinion here. However, please note that this Opinion is an unpublished decision, and therefore not precedential. However, even unpublished decisions give guidance as to the court’s thinking.

In this particular matter, the parties had an unusual clause in their Settlement Agreement which allowed husband to be relieved of his alimony obligation during any months in which he was unemployed. Tricky clauses like this can come back to haunt you. If at all possible, keep the language of your agreement as clear and unambiguous as possible. In this case, additional months would be tacked on to the end of his obligation to make up for the missed payments. The parties divorced in 1994 and husband was required to pay alimony through 2006. However, due to various bouts of unemployment, his alimony obligation was extended by many months.

By 2008, two (2) years after his alimony obligation was supposed to have ended, husband was still in arrears by at least $15,000 to wife and attempted to argue to the court that his alimony obligation had terminated due to wife’s cohabiting. Husband even intended to subpoena neighbors, the gentleman with whom wife was living and present documents to prove that she was cohabiting. Wife admitted that she was living with this person but indicated that her cohabiting did not begin until 2007, which was a year after the termination of the original alimony obligation.

In refusing to accept husband’s arguments, and agreeing with wife that wife’s cohabiting after the end of the alimony period would not affect husband’s obligation, the trial judge described husband as “chronically and purposely under-employed.” The judge also noted, with, I am sure, some level of disdain, that husband had filed at least 22 motions between 1996 and 2007. Additionally, the husband had been repeatedly incarcerated. All of this surely did not help his credibility.
 

Monday, March 15, 2010

Child support- not set in stone

Unlike other areas of the law, litigants must realize that terms of orders or agreements having to do with a child, such as custody and support, will be modified based on a change in circumstances and/or the best interests of the children. While this general rule applies to child related issues, each jurisdiction has its own unique twist on the subject.

Recently, the Superior Court of New Jersey, Appellate Division, was faced with a case wherein the parties divorced in 2008. They settled and reached a written agreement. At the time, husband was without an attorney. Defendant had an attorney who was representing her pro bono (not charging her). The agreement called for husband to make extremely onerous support payments, which were designed to cover the burdensome costs of the monthly mortgage on the marital home. As is the case in some families, this couple had been living above their means and, when separated, they found it even harder to meet their monthly bills.

Almost immediately after the settlement went into effect in March 2008, the husband was unable to make the payments and fell into arrears. Less than 6 weeks after the divorce, husband ended up in jail for non-payment. He was able to borrow $5,000 to obtain his release from jail and immediately requested that the court reduce his payments. The court scheduled a hearing and reduced his support on a temporary basis.

At the hearing, the court found that the parties had agreed to an arrangement wherein 91% of the parties’ combined income went to the wife and husband had less than $700 per month on which to live. Basically, the support to which the parties had agreed was more than three times the amount of support that the guidelines would have dictated under New Jersey law. Additionally, husband was left with less than he would need to sustain himself, even on a basic level.

The trial court reduced husband’s payments, finding that enforcing the agreement of the parties would be “unjust, oppressive and inequitable.” The wife appealed but the Appellate Court agreed with the trial court’s reasoning.

Notably, a court will rarely review a parties’ “bargained for agreement.” In fact, this result might not have occurred in Pennsylvania as Pennsylvania courts tend not to undo agreements. New Jersey courts, however, have been known to review an agreement based on whether the original terms were inequitable. Additionally, courts in Pennsylvania and New Jersey retain jurisdiction to modify child support, even an agreed upon amount.

Although the Opinion does not include a great many details, what is abundantly clear is that the parties simply could not afford this lifestyle and husband could ill afford to make these payments. Frankly, this was a house of cards waiting to topple. You can read the full Opinion here.

When coming to an agreement to resolve your divorce, you should first know what you would be required to pay under the law. If you at least know that general range, it is unlikely you will agree to something too far afield. Additionally, draft a budget for yourself and think realistically about your ability to pay. It is better to come up with a plan to which all parties can be faithful, than agree to such an outlandish scheme that everyone is disappointed when one or both parties default. In this matter, the parties were likely forced to sell the marital home (although the Opinion does not so state). Without the inflated support, wife apparently did not have enough funds to keep that residence and pay for basic necessities.

Thursday, March 11, 2010

Just don't do it

Generally speaking, I always recommend that if a couple decides to separate, living under separate roofs is probably the best immediate strategy, so that emotions have time to settle. Sometimes, remaining in the same house with someone from whom you have separated can create a tinderbox, where at any moment the situation could quickly and irreversibly get out of control. Unfortunately, these types of issues are the root of many problems that end up in domestic violence court. In Pennsylvania, we call the procedure a Petition for Protection from Abuse and in New Jersey, we call it a Request for a Restraining Order under the Prevention of Domestic Violence Act.

The majority of domestic violence actions are civil, which means that the perpetrator will not have a criminal record, but there will be a court order with regard to the restraints imposed. Even if the petitioner eventually drops the action, future employers or others interested in an individual’s past will most likely be able to discover the existence of domestic issues in someone’s history. To avoid even the possibility of domestic violence, the best advice is to simply stay away from your estranged spouse if there is any chance whatsoever that tempers could flare.

Unfortunately, many people cannot effectively stay away and a toxic stew of discontent begins to brew, which can bubble over into a physical confrontation, or the threat of one.

Recently, the Appellate Division of the Superior Court of New Jersey, heard an appeal from a defendant in a domestic violence action, basically due to a cell phone call that he made to the victim, saying I’m going to cut your throat from ear to ear.”

The parties went through a full trial in front of a judge in the Family Part and the judge heard evidence from both sides, including defendant’s witnesses who stated that he was not available to make the phone call at the time when plaintiff testified that she received it. Plaintiff testified to a relationship which included much violence and physical interaction over the years.

Ultimately the court found sufficient evidence to enter a restraining order against defendant. Notably, the defendant even admitted, on the witness stand, that he wanted  of his wife. Obviously, this statement did nothing to convince the judge of his innocence.“to beat the sh** out”


Since domestic violence court cases often come down to a “he said, she said,” perhaps the best course of action is not to put yourself in a position where anyone can even accuse you of abusive behavior.

Wednesday, March 10, 2010

But What if you Break Up With Your Girlfriend?

Sometimes, during divorce proceedings, despite subjecting themselves to civil and legal penalties, litigants attempt to hide assets from their spouse. However, besides being fraudulent, it is easier said than done. Additionally, this illegal course of action tends to spin a web of complicated and expensive legal problems and costs money rather than saves it. In order to fraudulently conceal assets, you usually must remove your name as an owner. Are you willing to divest yourself of ownership of your own property just to thwart your spouse? The answer should be a resounding NO!

Giving up your ownership gives up your rights in the asset and, if you are only attempting this to cheat your spouse out of his or her interest, and expect the asset to eventually be returned to you, you are relying on the recipient of the asset to give it back. If you, and this other party, are attempting to deceive the court and your spouse, you also must remember that there is generally no honor among thieves, and, your partner in crime may turn against you some day. Additionally, if the court discovers the fraud, the penalties can be severe.

An example of fraud gone terribly wrong from an actual case . . .

Recently, the Superior Court of New Jersey, Appellate Division, faced a situation wherein the plaintiff, “Eric,” had sued his former girlfriend, “Nancy,” for his interest in a house that he had at one time owned jointly with her. Apparently, Eric and Nancy had begun their relationship when Eric was involved in a divorce proceeding with his now ex-wife. During that divorce, apparently concerned that his ex-wife would make a claim against the home he had purchased and owned jointly with Nancy, he deeded the property over to Nancy. In doing so, however, he remained liable for the Promissory Note and mortgage on the house. Allegedly, Eric and Nancy had an oral agreement that he would remain a joint owner on the property even though his name was not on the deed but this agreement was not reduced to writing. Nancy and Eric continued to live together and Eric claims that he made upgrades to the property and purchased various items for the home.

Apparently living quite the complicated legal life, approximately one (1) year after transferring his interest in the property to Nancy, Eric filed for bankruptcy, claiming in writing, and under penalties of perjury, that he had no assets. Significantly, he did not list his alleged interest in the house with his girlfriend as an asset. He was granted a discharge of debts from the bankruptcy court. Had the court known about the house, his interest would have likely been sold to pay his creditors, so of course, he wanted to keep that secret from the bankruptcy court.

As happens on many occasions, the love between Nancy and Eric came to an end. At that point, Nancy demanded that Eric leave the home that they had originally purchased together and that he had deeded over to her. Four years later, Eric sued Nancy for her failure to reimburse him for his share of the home. Significantly, this is the same home that Eric denied owning in his bankruptcy proceeding and the same home he denied owning during his divorce.

As the lawsuit with Nancy progressed, in order to prove the legitimacy of his interest, Eric claimed that he actually had advised the bankruptcy trustee about his interest in the home, by way of a conversation during a hearing. To substantiate his claim, he submitted handwritten notes from the alleged hearing.

Ultimately, the court found that Eric’s claim for his interest in the home with Nancy was barred by the doctrine of judicial estoppel. This doctrine generally prevents a party from arguing one position in one legal proceeding and then an entirely different position, on the same issue, in a later legal proceeding. As he had asserted before the federal bankruptcy court that he did not have an interest in the house, then later asserted in his lawsuit with Nancy that he did in fact own an interest in the house, those positions were wholly inconsistent. Additionally, Eric even admitted that the entire transaction, beginning with his initial transfer of the property to Nancy was for the purpose of misleading his former spouse, and potentially frustrating any interest she may have had in the house. Accordingly, the Appellate Court confirmed the dismissal of his action.



There are many lessons to be learned here:


1. Elaborate schemes to mislead or even defraud someone in litigation, or in general, could cause a significant amount of expense, litigation and adverse results in the long run.

2. Transferring a valid interest in a property, on a basis of an oral or side agreement, is risky. If you are willing to transfer your interest, be prepared to lose it altogether.



If you are interested in reading the complete Opinion, you can obtain it here. Note, however, that this is not a published Opinion by the Superior Court which means that it does not have precedential value. However, it is an excellent review of the theory of judicial estoppel and, hopefully, a comprehensive example of how not to conduct yourself in litigation.

Tuesday, March 09, 2010

Quote of the Day

"A strong positive mental attitude will create more miracles than any wonder drug."

- Patricia Neal

Tuesday, March 02, 2010

Quote of the Day

Good instincts usually tell you what to do long before your head has figured it out.




Michael Burke