Tuesday, August 31, 2010

Positive uses of communications technology

Post by Elizabeth A. Bokermann, Esquire


Often on this blog we warn of the travails of technology, and certainly there are real concerns with safely and appropriately using technology. That said, advances in technology do provide wonderful tools for children of divorced parents to remain in close contact with the non-custodial parent.



Obviously, telephone contact is the easiest way for the non-custodial parent and child to remain in touch. For older children, emailing the non-custodial parent could be a fun and positive way to practice reading and writing skills, while also nurturing the relationship with the non-custodial parent. Blogs, if well-monitored by both parents to assure the child’s safety and privacy, also could be a way for a child or non-custodial parent to share stories and pictures with each other. Finding a way to password protect the material, avoiding the use of full names/locations and/or limiting those people who can view it would be prudent management techniques.

Another online tool that is rapidly gaining mass popularity is Skype. Skype is a website which allows people to communicate in various ways. In particular, Skype has a free feature which allows people to communicate via a live video feed. In other words, the non-custodial parent could be sitting in his hotel room in London while on a business trip but still use his webcam and laptop to see and hear, in real-time, his children who are using their computer at home in Pennsylvania. To get a little more information about Skype, including various options for communication, visit the website here. Because young children may have difficulty sustaining a productive telephone conversation, adding a video component can really keep their interest.



Increasingly, families are opting to utilize advancements in communication technology to stay in touch over long distances. For families that do not automatically opt to utilize these tools, some courts are beginning to step-in and demand the use of technology to enhance communication. Recently, in Baker v. Baker, a New York court ordered that when a mother relocated to Florida with her children, the children must be able to use Skype to remain in contact with their father. Furthermore, the mother was responsible for paying for the electronic devices necessary for the parties to utilize Skype technology.

It is likely that these types of provisions will become more commonplace as access to more of these new types of communication technologies becomes more widespread. Even without a court order demanding the use of ever-new technology advancements, many divorced parents should consider the use of technology to increase quality communications between the non-custodial parent and the child. However, as always, parents must teach children about appropriate and safe internet usage. Additionally, parents absolutely must carefully monitor their children, even, and perhaps especially, older children. For a good article including information and tips from KidsHealth from Nemours about internet safety for children and families, click here.


Friday, August 27, 2010

Keep that connection with your kids

USA Today recently published an interesting article about staying connected with your children -- even if you no longer live together full time due to a divorce or separation.  Read about it here.

Wednesday, August 25, 2010

Thought of the Day

" Don't agonize.  Organize."

- Florynce R. Kennedy

Tuesday, August 24, 2010

Stormer

Recently, I communicated with a reporter regarding dogs in an office environment.  When I chose this office, I wanted a calm atmosphere for clients and one of the ways I thought I could create that was to bring my dog to work with me.   He spends his day greeting clients, napping and looking out the window.  He has even provided some soothing pet therapy on occasions when clients needed a distraction from their legal problems. 

You can read the article, Dogs Improve Office Productivity, and my quote, here.

Stormer at work

Monday, August 23, 2010

THOUGHT OF THE DAY

" Look at life through the windshield, not the rear-view mirror."

- Byrd Baggett

Sunday, August 22, 2010

Demystifying the courtroom experience

My first exposure to an actual live courtroom was during law school when I took classes in Europe. Part of the curriculum, when we were in England included watching a live trial. The barristers (British lawyers) wore white wigs and robes and the courtrooms tended towards the formal and majestic.

Back in America, I spent plenty of time in my law school’s mock courtroom but it was not until my judicial clerkship after graduation did I sit in a courtroom almost every day. By the time I entered private practice, the courtroom setting no longer intimidated me (although my first –OK maybe my first ten – hearings/trials/arguments were a bit nerve-wracking.)

Now, court is a second home for me and I relish the opportunity to advocate for my client-- formulating an argument, questioning witnesses and presenting my case. 



For litigants, the courtroom experience usually causes a great deal of anxiety – over the process, your performance, the performance of your lawyer, mystery about the judge and fear about the outcome. By understanding a bit more about how the entire process works, you can relieve some of the tension and concentrate on what is most important: getting the best result possible. Here are nine (9) tips, tricks and bits of information to help get you ready. (I chose nine because once, early in my career -- I had to wait nine hours before my case was called.  I arrived at 8:30 am and waited through dozens and dozens of other cases until finally be called at 5:30 pm. An all day wait tends to be the exception - not the rule -- but realize that most courthouses are overburdened and subject to delays.See numbers two and three, below).

1. Manage your expectations. You can only accomplish so much in court – and there are generally no clear winners and losers, especially in family law matters. Both parties usually leave a bit satisfied ---- and a bit unsatisfied.  That said, if you are smart in your litigation strategy, you and your lawyer can successfully advance your position.

2. Be prepared to wait. Generally, most cases are placed on one list, and all scheduled for the same time – usually somewhere between 8:30 and 9:30 am. Each judge manages the list in their own way – some take all cases with two attorneys first — some take pro se (unrepresented litigants first). Sometimes, the case before you can delay everyone else – one hearing that lasts too long puts off everything else. Beware the break for lunch — if your case is not called in the morning– the court might not start again until 1:30 pm. Even though I prepare all of my clients for the possibility of a long day, at least once every two or three months, a client will act shocked that our case is not taken right at 9:00 am.



3. You most likely will be in the same waiting room as the other party – which can obviously be extremely uncomfortable. Bring distractions with you – books, magazines, or reading material from work. Sitting there throwing dagger looks at the other party or opposing counsel really does nothing productive for your case.
4. The actual courtroom experience tends to be anti-climactic. Most judges tend to great litigants with an opening line similar to: “There are lots of cases on my list today - let’s be quick.” Replying that you have been waiting all day and your taxes pay the judge’s salary will not be helpful.
5. Speak up, speak slowly and speak clearly. Nothing annoys a judge more than not being able to hear a litigant. Courtrooms can be noisy – people are milling around, noise seeps in through windows or hallways and people shuffle papers. You need to be heard above the din. Speak slowly — no one can understand when you rush through what you are saying. In one of my cases, my client spoke so quickly, even after multiple admonishments, that the judge threatened to lock him in the holding cell for contempt of court. He finally did slow down (but only marginally). Enunciate every word — you may know your own story but the judge has never seen you before and you are one of dozens of stories before the court that day.



6. Understand your case. Re-read the pleading that got you there in the first place – along with any answers. Review your exhibits and make sure they are clear and easy to read. For example, in a support proceeding, you may be asked to explain, in detail, every entry on your paystub. Review it with your Human Resources department well before the hearing.
7. Evidentiary rules control courtrooms. Generally, your attorney asks you questions (direct examination) and the other attorney follows up with questions (cross-examination). Go over your testimony with your attorney. Being prepared can help alleviate a lot of the nervousness.
8. Refrain from shouting, yelling, shifting in your chair, rolling your eyes or sighing in disgust. These things will not help — and tend to hurt your case before the judge.
9. Be prepared to settle. Many cases often settle at the actual courthouse. This means you waive your right to be heard by the judge. Settling can be a frightening experience — Would I do better if I just took my chances before the judge? Know your case, understand the potential outcomes and trust your attorney.
Take a deep breath, relax and be prepared. You will get through this.  Be likable -- the judge is a human being just like you.

Tuesday, August 17, 2010

More perils of Facebook

My mantra in divorce, support and custody proceedings is that if something cannot help, but could most likely hurt, do not do it.  Examples of behaviors that can harm your position are unproductive and heated telephone or email exchanges with the other party, involving the children in adult matters or being deceitful about your income. 

Another behavior that virtually always circles back to cause negative consequences is publication of thoughts, opinions or facts about your case on social netoworking sites.  Any momentary satisfaction you receive from attempting to humiliate or harass the other party is usually dwarfed by the negative reaction that a court, judge or custody evaluator will have about such actions.

Social networking is also a form of communication -- so if you are prohibited from contacting the other party, whether due to a restraining order, no-contact order or mutual stay away -- be aware that communication through the interet is also prohibited. 

A man in Florida recently sent his estranged wife a "friend request" via Facebook.  Since he was subject to a protective order which prohibited contact, his "friend reqeust" was considered a violation and he was swiftly arrested and jailed.  The story notes that he had recently posted an unfavorable comment about his wife on his "wall:"

“today my future x wife thinks she won but the real winner is me for i know the truth she is nothing but a lying emotionally disturbed woman who needs help to handle previous abusive relationship."

Perhaps, had he not irritated her with his public posting, she would not have reported his later "friend request" to the police, thus resulting in his arrest.  We may never know but this appears to be tit for tat. 

Let this be a warning -- before you post that nast rant -- think about all of the possible consequences  . . . and step away from the computer.

Monday, August 16, 2010

The Denial of Religious Convictions as a Justification for Domestic Abuse

Imagine living in a society where a man is allowed to severely abuse his wife and escape punishment because he is able to justify his behavior as religious.

A world where a man is permitted to physically attack his wife because his religious affiliation views women as inferior to men. Unfortunately, this is an all-too-common scenario for women across the world. We, in the United States, are lucky to live in a society where abuse can not be justified or excused because an individual’s religion allows such actions and all people are held accountable under the same laws for their actions. This equal application of the law to all citizens was recently challenged in a New Jersey domestic abuse case where a judge openly dismissed a case of domestic abuse including numerous occurrences of rape because the abusive husband believed his actions to be acceptable under his religious beliefs. (S.D. v. M.J. R., Superior Court of New Jersey Appellate Division, A-6107-08T2). The Superior Court of New Jersey, thankfully, disagreed with the lower court judge’s reasoning and reversed the decision but it is unsettling to think that the lower judge even considered a religious justification for the abuse and even more disturbing that the judge allowed such an excuse to be the reason for dismissing the claims of his wife.





The summarized facts of the case in question are as follows: A Muslim couple from Morocco were married in July, 2008 when the girl was seventeen years old. The couple moved with the husband’s mother to New Jersey within a month of their wedding. Beginning in early November, just over three months from their wedding day, the husband began to physically, emotionally and sexually abuse the wife, which included slapping and pinching, periods of being confined to a locked room and numerous instances of non-consensual sexual intercourse. Such abuse continued for almost a month until, after one particularly violent encounter, the young woman escaped out a window of the couple’s apartment to seek help which led her to the local police station. Pictures from the police station documented the woman’s injuries including extensive bruising and swelling. A Domestic Violence Complaint was filed and a temporary restraining order issued but both were dismissed. The wife moved in with a nurse for the next month until she learned that she was pregnant with her abusive husband’s child. The couple met with their Imam, a local Muslim leader, for counseling and an attempted reconciliation during which the husband was told to cease his abusive actions. Immediately after the now pregnant wife moved back into an apartment with her husband the abuse resumed and included being confined to the apartment and further instances of non-consensual sex. It was during this time, in January of 2009, only five months after their wedding day, that the husband informed his wife that he was free to do what he wanted with her and that she must submit as their religion dictates. The couple was divorced shortly after by the Iman and the woman filed two complaints alleging abuse which resulted in two temporary restraining. These actions were joined together in the Superior Court Chancery Division for trial where the woman sought a final restraining order.





During the trial there was various testimony from the wife, the mother of the husband, the nurse and the Iman. The mother contradicted the wife’s testimony but the nurse and the Iman both agreed that the wife had complained of domestic abuse and that she sought police intervention. The Iman also confirmed that, under the Muslim religion, wives must comply with their husband’s sexual demands. The judge concluded the trial by ruling that the wife had established harassment and assault but that she had failed to prove her three other claims of criminal restraint, sexual assault or criminal sexual contact. The judge found support for harassment and assault in the “uncontradicted” testimony as to physical abuse in November and the “clear proof” of nonconsensual sex in November and at least part of January. The judge ruled for the husband on the claims of sexual assault and criminal sexual contact stating that the husband, under his religious convictions, believed that he was allowed to have sex with his wife against her wishes and thus did not intend to commit a crime when he forced his wife to have sex. The judge then stated that this was merely a bad patch in their marriage and, despite the pregnancy that would inevitably result in custody issues, instructed the husband not to have contact with the wife. The judge then stated that a no-contact order was likely issued as a result of the separate criminal complaint and dismissed the temporary restraining order and refused to issue a permanent restraining order. The wife appealed to the Supreme Court’s Appellate Division. Apparently, the judge assumed that the no-contact order, which may accompany the criminal proceedings, would protect Wife.

The Appellate Court began its review of the shocking decision of the lower court by an examination of New Jersey’s 1991 Prevention of Domestic Violence Act which explicitly states the intention of the legislators to give maximum protection to victims of domestic abuse in New Jersey while enforcing a zero-tolerance policy towards the perpetrators of domestic abuse. Domestic Violence crimes in New Jersey include those that the wife brought in this case, two of which, sexual assault and criminal sexual contact, were dismissed. The husband’s behavior, which included forcing his wife to have sex, without a doubt qualifies as sexual assault and criminal sexual contact. The lower court’s reasoning that the husband lacked the intent to commit the criminal acts because of his religion was a misapplication of the state law which only requires that the husband’s conduct was done knowingly. There can be no argument, despite the husband’s religion justifications, that he did not know that he was forcing his wife, who protested and cried, to have sexual intercourse against her will. Under the New Jersey state laws the husband committed not only assault and harassment but also sexual assault and criminal sexual contact.

Next the Court looked at the religious justification for dismissing the crimes that had been committed and determined that this would hold no weight in the husband’s defense. Over the years, there have been a series of cases debating the right of citizens in the United States to religious freedom versus the government’s right to enact laws that may interfere with some group’s religious practices. Such cases include debates over polygamy, essential blood transfusions with Jehovah’s Witness groups, employment requirements on days of religious observance and illegal drug consumption in religious ceremonies. There is yet to be a case dealing with the type of legislation that is at issue in this case and the Court, following a prior United States Supreme Court case that ruled on illegal drug consumption at religious ceremonies, determined that here religion cannot prevent the government from pursuing remedies against the perpetrator. Furthermore, the clear intentions of the New Jersey legislation to protect domestic violence victims also support the dismissal of a religious based defense.

Finally, the Court, having found criminal conduct beyond the lower court’s findings, determined that this is a case in which a restraining order is more than necessary. Through the span of this short marriage the husband showed dangerous violence towards the wife that began shortly after their wedding and continued, even after an attempted reconciliation, until this court action. Furthermore, the unverified no-contact order that may have accompanied the separate criminal claims should have had no effect on a restraining order in this domestic violence matter. Finally, the presence of a pregnancy in this case offers even more support for the issuance of a restraining order against the husband who now has even greater motivation to seek out contact with his wife. A restraining order was, without a doubt, necessary for this woman’s safety.





Although the final result in this case is a relief, it is worrisome that the result was initially quite different. Imagine if the Supreme Court had not overruled this case, where would the courts be able to draw the line? Could we ever justify violent criminal behavior on the basis that the perpetrator believed that his/her religion allowed them to act this way? If a man can abuse his wife but escape conviction under his religion, can everyone who claims their religion allows assaults, rapes or even murders be allowed to use that as a defense? The United States Supreme Court has made it clear, as the New Jersey Superior Court stated in this ruling, that, although Americans are free to have any beliefs they choose, acts based on religious beliefs will not be free from legislative control especially in areas of criminal law. Should this decision ever change, all victims of criminal acts, not just domestic violence, could potentially be faced with a court system that will not recognize their claims because their perpetrator subscribes to a certain religion.

This post was drafted by Elizabeth Early, my law clerk and a third year law student at Temple University in Phialdelphia.

Wednesday, August 11, 2010

Back to school tips and tricks

Does it not seem like we just emptied the school bags, put away the school clothes and put the lunch boxes and school supplies away for the summer?  We may still be enjoying the hot days, pool, beach, outdoor sports, grilling and all of the other pleasantries that make up the fabric of our summer seasons but school is just around the corner.

One of the best "Back to School" tips I provide is to remind divorced or separated parents to develop a comprehensive calendaring system to bring order to the chaos that can sometimes occur when children go back and forth between parent's households.

Invest now in a calendar with blocks big enough to write daily activies.  You can view a variety of brands and options here. Then, sit down with your custody schedule/order, and transfer it to an easy to read, visually appealling wall calendar.

I find it best to use color codes -- maybe GREEN for mom and BLUE for dad.  That way -- the kids have an easy reference to where they will be and can plan ahead.  If an invitation to a birthday party or other fun event arrives --- you will know if you have to notify the other parent.  Sports and activity schedules can be clearly laid out so that transportation can be coordinated.

Your children look to you for guidance, serenity, safety and security.  The more organized you keep their lives, the less stress and anxiety they will have to endure.


Thursday, August 05, 2010

Thought of the Day

"Perhaps our eyes need to be washed by our tears once in a while, so that we can see life with a clearer view again."

- Alex Tran

Wednesday, August 04, 2010

Delaying could cost you

When entering into a divorce, many parties expect life-altering changes to occur. Some of these changes come with great joy and others come with surprise, anger, sadness and anxiety. The sale of the marital home often falls into the latter category.

Many individuals often think that it is clear-cut and obvious that he or she, as the primary caregiver to the children, as the lower-income earner, or whatever the circumstances may be, should be able to keep, own and stay in the marital home. Often these individuals face an unexpected surprise when they find out that their spouse believes the same thing. Even more often, these individuals are surprised to find out that neither party is able to individually, financially afford the marital residence and its mortgage and maintenance payments. To top it off, in today’s real estate market and lending economy, lenders are often not willing to refinance the mortgage to one of the parties, unless they have substantial income or separate assets. Thus, the marital residence is frequently sold.

The sale of the marital residence brings up many legal questions and concerns for divorcing parties, and each aspect, especially in regard to equitable distribution, should be carefully contemplated and discussed thoroughly with an attorney. Some of these issues include: whether the profits from the sale should be placed in escrow, how the parties should decide on sale price, whether there should be an agreement in place to compel acceptance of offers, who should pay for maintenance and upkeep during the sale period, how the realtor will communicate with the parties, how the parties will decide when to lower the sales price, and who will pay the mortgage during the sale period.

The distribution of profits from the sale of a marital residence is almost always a central issue in equitable distribution, because it is often the largest asset and/or debt in a marriage. Parties divorcing in New Jersey should be aware of a court decision recently reached by the Appellate Division of the Superior Court of New Jersey. In Hannon v. Hannon, the Court held that the valuation date for a marital residence is the date of the sale of the residence rather than the date of the final judgment of divorce.


During the marriage, the parties in Hannon owned a marital residence, and upon divorce, the parties were supposed to sell the marital residence; however, the husband continued to live in the house for a significant number of years. During the years that husband lived in the marital residence, the value of the marital residence increased by a significant margin. Eventually, after several attempts to force husband to sell the marital residence, wife was able to enforce the final judgment of divorce and cause husband to sell the marital residence.

Upon selling the marital residence, husband argued that for purposes of dividing the profits from the sale, the parties should use the value of the marital residence at the date of final judgment of divorce. Additionally, he argue that wife only should receive the amount of profit from the sale of the marital residence that she would have received if the house had been sold years earlier, because only he had contributed to the maintenance and upkeep of the marital residence and the mortgage during the interim years. Husband further argued that he should be able to retain the excess in profits, which were received from the appreciation of the marital residence.

The Hannon court held that the marital residence should be valued at the date of the sale of the marital residence, and that husband and wife should split the profits from the sale of the marital residence, including the profits from the appreciation in value of the marital residence.
Based on the recent Hannon decision, divorcing parties in New Jersey should be aware that, depending on additional circumstances at play in the divorce and assuming that the final judgment of divorce did not state otherwise, a New Jersey court likely would value a marital residence for purposes of equitable distribution at the date of sale rather than at the date of final judgment of divorce. In other words, if you unnecessarily delay the sale of the home and the house appreciates, you could end up sharing those proceeds with your spouse (or ex-spouse), even if you solely contributed to the appreciation.


Authored by Elizabeth Bokermann, Esquire.  Edited by Linda A. Kerns, Esquire

Monday, August 02, 2010

When we separated, Reagan was president, kids listened to music on cassettes and a phone was something attached by a wire to the kitchen wall

I have quite a few files languishing in my office involving couples who separated years ago and then never followed through on the divorce.  I also receive inquiries from people who separated decades ago and just now have decided that they would like to proceed with the divorce.

This weekend, the New York Times addressed this very issue -- referencing the phenomenon as: The Un-Divorce.  While it can be expense and complicated to divorce ---- staying together can often breed bigger problems.  Our laws provide rights and responsibilities to married people --- and staying married but separated for extended periods can often have devastating effects.

I have one case where the parties separated at least twenty years ago.  One spouse stayed in the jointly owned marital residence --- paying the mortgage and maintaining the home.  In Pennsylvania, we generally use the date of divorce value when dividing marital property.  Accordingly, in this case, the spouse who left the home is seeking to equitably divide all of the equity in the house that has accrued over the years.



Staying married can also sometimes mean that joint debts continue to accrue.  Whether you are still a  co-borrower with your estranged spouse on a mortgage or never closed joint credit cards -- these financial entanglements can get messy -- and more costly -- as the years go by.

If your situation changes -- your income increases or perhaps your spouse becomes disabled -- you could be liable for alimony.  If your spouse is sued or fails to pay a medical bill -- you could be drawn into the financial quagmire.

I cannot argue with the reality that divorce can be expensive.  However, it can often be much more expensive to delay.  If you have been separated so long that you have experienced more than one presidential election since you last lived with your spouse, think seriously about your financial exposure.