Wednesday, September 29, 2010

Congratulations Liz!




Our law clerk, Elizabeth Early, a third year law student at Temple University, Beasley School of Law, has just accepted a clerkship for the 2011-2012 court term with the Honorable William C. Todd, III, of the Chancery/Equity Division of the Superior Court of New Jersey, Atlantic/Cape May Vicinage.

Liz will be following in Linda's footsteps as Linda served as Judge Todd's clerk during the 1998-1999 court term.  Liz will continue at the Law Offices of Linda A. Kerns, LLC until her clerkship begins in August 2011.

Midlife divorce

When "I do's" turn into "I do not want to anymore" during midlife, couples can face financial and emotional challenges.  I was recently quoted in an article on this topic: Doing the Money on Midlife Divorce by Susan Kuchinskas.

Thursday, September 23, 2010

What to do with underwater houses

Divorcing spouses often face a situation where they owe more on their home mortgage than the marital home is worth. They realize that if they place the home for sale, once they paid a realtor fee, transfer tax and costs of sale, then there would be nowhere near enough funds in order to satisfy the mortgage. If the home is sold, the homeowner must then:
(1) negotiate with the mortgage company to accept less than the amount owed on the mortgage, otherwise known as a short sale,
(2) pay the outstanding balance to the mortgage company at settlement or
(3) agree to owe the funds which will then be paid off via a payment plan or some other mechanism.

None of these solutions are very palatable.



Divorcing homeowners faced with these “underwater” homes have very few options, especially because continuing to live in the home together and trying to ride out the real estate market downturn is not part of their plan.

The options are upsetting and stressful but couples facing this problem should at least understand the strategies that may be available:

1. Sell the home and negotiate a “short sale.” Essentially, you find a buyer and enter into a binding agreement with your lender to accept less money than the total amount owed on the mortgage. These deals can be complex and frustrating to negotiate. Make sure you consult with an attorney regarding the terms, especially because you do not want to be in a position where a buyer expects a settlement date and then you, as the seller, cannot follow through with the deal.

2. Find a renter to cover the expenses until the market recovers or you are able to find a buyer. Although this may sound good in theory, it is not always possible to find a renter willing to pay enough rent to cover the mortgage and taxes. In addition, the renters will live in the home and cause wear and tear, some more than others. Depending on the damage done, you may be facing some expensive repairs when you do go to sell it. Additionally, one of the spouses must be in charge of collecting the rent and maintaining the property. However, renting may be a good option, because some homes are very desirable as rentals and would allow you to minimize the financial damages.



3. Enter into a nesting arrangement. Some couples, who realize they cannot sell the marital home and each individually afford to buy or rent separate residences large enough to house the children, decide to “nest” in the marital home. This means that the children stay put and the parents take turns moving in and out of the marital residence on a set schedule. Sometimes, on their “out of house” time, the parents each use the same studio apartment, thus cutting down expenses even further. This type of an arrangement requires a great deal of cooperation and, absent a good faith attempt by both parties to make this work, an arrangement such as this could end in disaster. I remember one case where a family decided to “nest” over my objection, and one of the parents, on her weeks in the residence, was always faced with problems, such as the heating oil tank being empty, the house not being cleaned and the steady removal of various possessions, such as kitchen items and furniture, by her estranged husband. Accordingly, before you even think about this type of arrangement, you should understand the risks and set ground rules.

4. Bankruptcy. Sometimes, if the debt on a home is overwhelming, you can discuss your options with a qualified bankruptcy attorney. Although bankruptcy may seem like a last resort, our legal code was designed to provide a fresh start.

Are there other options? Possibly. The one sure thing about an underwater house is that the problem will not fix itself. Face the issue, understand your options and then take steps to remedy the financial disaster - or at least mitigate it.

Monday, September 20, 2010

Shout out to my brother

Tim Kerns is a baseball coach and trainer in Montgomery County.  The Pottstown Mercury recently featured Tim, and his training facility, Triple Crown Academy.

Coach Tim with a pitcher on the Curacao National team (August 2010)

Wednesday, September 15, 2010

What NOT to post on Facebook

This article says it all.  Be careful out there.

Tuesday, September 14, 2010

College tuition, emancipation and the courts

How will I pay for my child’s education? Proper planning can help ease the burden. Notably, in Pennsylvania, absent an agreement between the parties, courts cannot compel a parent to pay college education costs. New Jersey has almost the opposite rule, and allows child support and contribution towards expenses generally, including tuition, as long as a child remains dependent. Wherever you live, saving and planning will still be a big part of the process.

Over the years, many tools and mechanisms have cropped up to help parents save money for education. Some of these tools include: 529 plans, Coverdell Education Savings Accounts, Roth IRAs, savings accounts, money market accounts, certificates of deposit and savings bonds. A recent Parade Magazine article clearly and concisely explains some of the pros and cons of these various savings mechanisms. To read the article, click here.

When parents have managed to accumulate significant savings for college education, either in a formal college savings plan like a 529 Plan or simply in a savings account that both parents know is intended to fund a child’s education, there are additional concerns to address when those parents decide to divorce. In Pennsylvania, many of these college savings accounts are in fact considered marital assets and would be subject to equitable division. At equitable distribution, there are several options with regarding to dividing the assets. If one parent retains the college savings plan to use for the children’s education, the fear is that this asset that is not being used for the parent personally would be credited against them during equitable distribution. In other words, Mother receives the $25,000 college savings plan to be used for Child, and Father receives a $25,000 retirement account. Mother is effectively short-changed $25,000 dollars. However, dividing the college savings plans between the two parents for use towards funding a child’s education is not necessarily feasible either. Many of these savings plans are highly regulated and have tax penalties and fees for withdrawing or transferring funds.

Because dividing or transferring the college savings plans can be fraught with problems, some parents retain the college savings plan in joint ownership for use by for the parties for the children’s education. If this route is taken, the parties should be confident that they can work together in the future, and the parties’ lawyers should carefully construct the guidelines for the use of the funds and penalties for mismanaging or misusing the funds.

A divorcing parent must carefully consider with his or her lawyer how the college savings plans should be addressed during equitable distribution. Many parents simply assume that these accounts will simply be left out of the equation. Be prepared that the court could include them in your marital estate.

Post by Elizabeth A. Bokermann, Esquire

Monday, September 13, 2010

Talk yourself into a more productive divorce experience

People often ask me how I can handle a divorce practice day in an day out when I am seeing people who are often at the worst point in their lives. Handling divorces can be stressful and anxiety producing but, by the same token, if I can successfully guide people through the process in a positive environment designed to help them move on, I feel like I am accomplishing a worthwhile goal.

In order to make your own divorce more productive and less taxing, try following these tips:

1. Prepare a mission statement with objectives. By defining both short and long term goals, and what you want to achieve, you can help yourself see the bigger picture. Do you want to go back to school, learn to handle finances, be a better parent or increase your self-esteem? Whatever, your objectives, write them down.



2. Make yourself accountable. For example, if one of your goals is not to let the divorce overtake your life, one of the steps to achieving that may be to take time out for a favorite hobby, seeing friends or for regular exercise. Keep a chart or a log of your achievements in this regard. Even on the days when you feel like your divorce is getting ahead of you, you will feel as if you accomplished something for yourself.



3. Make sure you have an appropriate support system. I advise virtually everyone who consults with me to meet with a counselor or a therapist to assist them with the emotional turmoil that comes along with the divorce. Family and friends can be terrific for emotional support but they are rarely objective. Additionally, you do not want to overwhelm your friends and family with your divorce woes.


4. Stay organized. Read correspondence from your attorney carefully and keep everything filed, in chronological order. You will save yourself both time and money by not having to search for things over and over again or even pay your attorney to explain something to you more than once. In this regard, it might be a good time to start a net worth book. You can read my blog post on this issue here. Staying on top of your divorce will help you be better prepared and informed when it is time to make decisions.

Your divorce experience will be shaped by you, but only in part. Your spouse, the attorneys, and the court system will also play a huge role. However, you need to control what is in your domain: your behavior, attitude, mind set and perspective.

Sunday, September 12, 2010

Lessons from Anne

Whoever is happy will make others happy too

Anne Frank

Saturday, September 11, 2010

We Remember - 9-11-2001

Above all, we must realize that no arsenal, or no weapon in the arsenals of the world, is so formidable as the will and moral courage of free men and women. It is a weapon our adversaries in today's world do not have.


Ronald Reagan

Friday, September 10, 2010

Rated R for REALLY UNBELIEVABLE

Caution - this article is a bit on the salty side!

Speak Their Language



Have you ever looked at your child’s cell phone? Imagine seeing the following text in your child’s computer:

NIFOC (L)MIRL

Would you know that the message above was telling the receiver: “Naked in front of computer” and “Let’s meet in real life?” What looks like indecipherable gibberish is actually an extremely suggestive invitation.



Texters have a language all their own. Parents have a responsibility to watch over their children and protect them. However, looking at a text message that says: “TDTM” may be akin to reading a foreign language. However, that acronym actually means “talk dirty to me.” Yikes! Is this how children relate to each other nowadays? Unfortunately, the answer in some cases is “yes.”

Texting has become so universal that there are now websites to help you translate various messages. If you are interested in speaking your child’s language, visit the following websites for a guide to the world of texting language






Monitoring children’s communications will help you keep them safe, guide their development and hopefully avert inappropriate or dangerous situations. GL! (Good luck!)

Thursday, September 09, 2010

Thought of the Day

"Money will buy you a fine dog, but only love can make it wag its tail."

- Richard Friedman

Tuesday, September 07, 2010

Sweets to counteract the bitterness of divorce

I keep a bowl of candy in my conference room and another in my waiting room.  A sweet can go a long way in a stressful environment like a lawyer's office.  This writer apparently agrees:

In Bitter Moments, Reaching for the Sweet – New York Times



Friday, September 03, 2010

Understanding the steps in a Pennsylvania divorce action

You or your spouse live in Pennsylvania and have decided to dissolve your marriage. Now what? First, take a deep breath. Divorce can often be an exhausting and frustrating process for everyone involved. You will get through this.

Understanding the technical divorce process from beginning to end will help you prepare for the steps ahead. The lawyer that you retain will be assisting you with every stage of your divorce and will handle the procedural requirements and deadlines. However, the more informed you are, the more confident you will be in your decisions. You would never start a road trip without directions or any idea of your route, so take the same approach to your divorce action. Knowledge will equip you with the tools necessary to assert your rights and work towards resolutions that you prefer and meet your needs. Understanding the process may also help you reduce anxiety about the unknown.





What does Pennsylvnia require in order to file for divorce?


Jurisdiction and Venue

Jurisdiction and venue laws tell us if you are eligible to file for divorce in Pennsylvania and, if so, which county. To file in Pennsylvania:

You or your spouse must have resided in Pennsylvania for at least six (6) months prior to filing for divorce.

To file in a Specific County:

If you meet the 6 month requirement to file in Pennsylvania, you may then file within the county where you or you spouse, or both of you, reside.


Grounds

Pennsylvania allows for grounds for divorce which can be broken down into Fault and No-Fault categories.

Fault (Very rare)

Fault divorces, under the Pennsylvania Divorce Code, can be granted in situations where you or your spouse are guilty of severe misconduct including desertion, adultery, cruel and barbarous treatment, one spouse being sentenced to prison time for two (2) or more years and other such harmful behavior that made the other spouse’s condition intolerable. Fault divorces can also be granted in Pennsylvania if one spouse is committed to a mental institution for at least eighteen (18) months prior to the other spouse filing for divorce and there is not a likelihood of discharge for at least 18 more months.

Fault divorces require a finding by the court of such poor behavior as to justify a divorce or that the spouse is indeed committed to an institution for an extended period of time. This process, especially if it includes showing the horrible mistreatment of one spouse by another, can be emotionally draining for both parties. Because fault-divorce can be such an emotionally tolling process beyond the normal stress of a divorce, most parties pursue a divorce under No-Fault grounds. Fault divorces are so rare that many lawyers go through their entire careers without handling a fault divorce.


No-Fault (Very common)

No-Fault Grounds, under the Pennsylvania Divorce Code, can be granted in two situations: (1) where the parties Mutually Consent to the divorce (a 3301(c) divorce) or (2) where the court finds there has been an Irretrievable Breakdown of the marriage after a twenty-four (24) month separation (a 3301(d) divorce).

1. Mutual Consent: Where 90 days have passed since the date when the divorce action was commenced and the defendant served, and both parties consent to the divorce, the court will have grounds to dissolve the marriage. However, if other claims are pending, such as equitable distribution, those issues must be resolved first.

2. Irretrievable Breakdown: In order to qualify for a divorce under Irretrievable Breakdown, you must have lived separately from your spouse for at least two (2) years and the marriage must be irretrievably broken.

As you can imagine, if your spouse consents to the divorce, the process is usually easier and less protracted.



I believe I meet the Pennsylvania requirements. Now what?



Step One: Gather Records

You are going to need many documents and records for both your lawyer and the court. It is a good idea to begin gathering these as soon as possible as some will take longer to acquire then others. An early start on this organizing task will decrease the stress of later having to rush to get all of your records together and will also alert you to the records that you are missing. Some documents that you will almost certainly need include:



• General information about you, your spouse and any children including names, birth dates, current addresses and social security numbers.

• Marriage Certificate

• Estate Planning Documents including wills, trusts, etc. of both you and your spouse. (These can be a guide to the marital assets)

• Proof of grounds that you are seeking: for example proof of date of separation (a common example is proof that one spouse obtained a separate residence).

• Court Orders, if applicable, between you and your spouse including Child Support and Custody Orders and Domestic Violence Orders.

• Pre and Postnuptial Agreements, if any exist

• Financial Documents: This can, and often is, the most tedious part of document gathering. It is not uncommon for one spouse to handle most of the financial issues in the marriage but this can create complications during divorce proceedings if the other spouse has limited knowledge of the couple’s financial situation or where any financial documents could be stored. Of course, each couple’s financial situation is unique and the complexity of your documents can range from simple, easy to obtain documents to extensive, complex financial arrangements. Your situation will determine what exactly you will need to obtain, and your lawyer will be the best one to guide you in this process. Do not despair if you cannot find the information - your attorney can obtain it though the discovery process. As a general matter, you will need at least the following documents for both you and your spouse:

• Tax Returns

• Pay Stubs

• Proof of any other income (Social Security, public assistance programs, child support, etc)

• Bank Account Statements for you and your spouse individually as well as any joint accounts

• Credit Card Statements for you and your spouse individually as well as any joint accounts

• Stocks, bonds and similar assets

• Retirement and Pension accounts

• Deeds or leases to property

• Automobile titles

• Loans including those for mortgages, education, automobiles and personal loans.

• A list of monthly expenses as well as monthly bills

• Insurance Polices including health, dental, life, homeowners, and automobile





Step Two: Consult with a lawyer

If you have not already done so, you should consult with a lawyer who is familiar with divorce practice in your county.  The law does not require you to have an attorney, but professional guidance through this process will be invaluable. Yes, lawyers can be very expensive and legal fees can seem overwhelming however, it is in your best interest, no matter how amicable you expect your divorce to be, to have legal representation who is able to look out for your long-term best interests. It is extremely difficult for individuals going through a divorce to view their options in a completely neutral manner. Even if you expect a smooth process, your lawyer, beyond being able to guide you through the red-tape, will be able to guide you as to the best decisions for your future. It can be quite a headache when a client has attempted to handle a divorce without legal representation and does not realize, until they are in over their head, that they need a professional to sort through everything. Save yourself the stress of later realizing you need an attorney and obtain representation from the beginning.



Step Three: Decide what you want

The divorce process will almost certainly involve negotiations between you and your lawyer and your spouse and their lawyer. Because all of the options can, at times, seem overwhelming, it can be helpful to lay out what results really matter to you so that you can refrain from getting caught up in petty arguments over arrangements or items that are not worth the emotional or financial cost of litigation. Think about what you are willing or not willing to compromise on and what you would be able to sacrifice in order to secure something else that is important to you. Some themes to keep in mind include alimony and child support (will you or your spouse ask for either?), child custody and visitation, where you would like to reside after the divorce, if you can afford to keep the home on your own, division of property (both real and personal-what really matters to you?) and division of debts.



How does the divorce process actually work?

Again, this is a process best explained to you by your lawyer, but below is a brief explanation of the steps that occur in a Pennsylvania divorce.

1) File and Serve the Divorce Complaint: The complaint and its accompanying documents will vary slightly depending on the grounds for divorce that are being sought but the basic complaint is filed along with a copy of the marriage certificate, a domestic relations information sheet and a filing fee. For fault grounds a counseling notice is attached and for irretrievable breakdown grounds a counseling notice and usually an affidavit confirming the required period of separation are attached. This package is filed with the Family Court and, within thirty (30) days of filing with the Court, the complaint must be served on the defendant (your spouse) through personal service by approved individuals, certified and regular mail or by acceptance of service. Your lawyer will show proof of service on the defendant by filing an affidavit of service with the Court.

2) Defendant’s Response: Your spouse will have the opportunity to present their own claims and also have twenty (20) days from being served to object to the allegations contained in your complaint.

3) Bill of Particulars: As stated previously, divorces based on fault grounds often require additional steps and this is one example. If you are seeking a divorce on fault grounds, your spouse can require you to file what is called a Bill of Particulars where you will have list specifically what fault grounds you seek with extensive facts supporting your claims.

4) Grounds for Divorce Granted: Before either party can move forward with economic and custody claims, the grounds for divorce must be granted. See above for a review of fault versus no-fault grounds.

5) Discovery, Inventory/Appraisements and Income/Expense Statements: When there are economic claims (division of property, spousal/child support, counsel fees, etc) in a divorce, which is almost always the case, both sides are required to submit certain documents and both sides are entitled to seek other documents relating to finances through discovery. (It is important to note that discovery is not allowed in child custody issues unless it is authorized by the court.) Additionally, although it depends on what court proceedings are necessary to resolve the economic issues, most parties will be required to file an inventory and appraisement of all property and an income and expense report accompanied by financial documents including recent tax returns and pay stubs.

6) Master’s Hearing: Almost all counties, economic claims are heard by a Permanent Master in a conference-like setting. The parties submit the above economic documents as well as a pre-hearing memorandum outlining their arguments and reasoning and the Master makes a recommendation to the parties of a resolution. If the parties cannot reach an agreement the case moves onto trial before a judge.

Almost all child custody claims are heard initially by a Permanent Master or Conciliator as well. If the parties do not reach an agreement before the Master or disagree with Master’s suggestions, this case can also move for trial before a judge. The Master/Judge procedure varies from county to county.

7) Consolidated Case Management: A small number of complex cases, which often involve a dispute over physical custody of children, can be assigned to the CCM program where one judge will oversee and rule upon all of the issues in the case.

8) Appeals from the decision of the trial judge: If, after a Master’s Hearing or a CCM followed by a trial in front of a judge, you are still unsatisfied with the outcome you can appear your case to the Superior Court of Pennsylvania.

9) Enforcement: Finally, after all of the above steps are completed and the divorce and all if parts are finalized, there can still be issues with enforcement of the terms of the divorce. Although some parties do blatantly refuse to adhere to the divorce terms, this is also, unfortunately, a situation that can arise where one or both of the parties did not retain adequate legal counseling during the divorce process leaving one or both of the sides confused or unhappy with what is required of them. There are court proceedings that you can take to enforce your rights under the divorce. Also, if your circumstances change in a drastic way in the future, there are court proceedings you can take to request a change to the terms of your divorce that relates to child custody and child support. It is very unusual for alimony to be reconsidered by the court. Also, the court will not reconsider property division once the divorce is finalized, absent serious and extenuating circumstances, such as fraud.

So now you know the general layout of the Pennsylvania divorce procedure. I understand that at first glance it can seem overwhelming and exhausting but many others have gone through this process and come out on the other end happier and ready to start a new chapter of their life. Even if you are still unsure about whether you need to retain legal advice or not, take the time to set up a consultation with a lawyer. You will learn more about what your individual case would look like so that you can be fully prepared should you choose to follow through with the divorce now or at some time in the future.

Post by Elizabeth Early, Third Year law student - Temple University.  Edited by Linda A. Kerns, Esquire.

Thursday, September 02, 2010

Thought of the Day

"Be careful of your thoughts, they may become words at any moment."

- Ira Gassen

Wednesday, September 01, 2010

Information for victims of domestic violence

Post by Elizabeth A. Bokermann, Esquire written with assistance from Elizabeth Early (Third year law student, Temple University)

If you are the victim of domestic violence, whether physical, mental and/or emotional, you are on the right path to prioritizing yourself by doing research on how you can improve your life and gain the safety and stability that you need.

The first thing you must do is develop a safety plan to make sure that you and your children, if applicable, are safe and have a plan when violence is anticipated or elevates.

Reach out to your family, friends and community for help and support. Churches, employers and schools all may be the right place for you reach out and ask for assistance. If you do not feel comfortable reaching out to people that you personally know, you can call the National Domestic Violence Hotline at 1-800-799-SAFE (7233). If you are located in the Philadelphia area you can call the Philadelphia Domestic Violence Hotline at 1-866-723-3014. The following are some good links for information and brochures on help and support available:

Information on the Philadelphia Family Court Domestic Violence Unit

Information about Philadelphia Emergency Domestic Violence Services

Information on Protection From Abuse Orders in Philadelphia

Additional Resources and Information from Woman Against Abuse Advocacy in Action

In this difficult time, you need support and professional advice to help guide you in the implementation of a safety plan. Ultimately, it may be necessary to separate yourself permanently from your abuser by taking on a totally new identity, including a new name and Social Security number. Although the Social Security Department does not routinely issue new Social Security numbers, it is willing to issue new numbers to victims of abuse or harassment or if a person’s life is endangered. To read more about the process for receiving a new Social Security number, click here.