Monday, February 28, 2011

What if I want to move away from New Jersey?

Relocation cases, when one parents wants to leave the area with the children, sometimes involve almost impossible choices.  The biggest dilemma usually is: should the custodial parent stay in the same location so that the non-custodial parent can conveniently exercise custody time or should the custodial parent leave the location to pursue opportunities?  Either way, one of the parents will be disappointed, and the children are placed in the middle.  

In New Jersey, when a custodial parent wishes to relocate, there is a two-part test. He or she must provide a “good faith reason for the move” and show that “the child will not suffer from it.”  This approach was outlined in the case of Baures v. Lewis, 167 N.J. 91 (2001).  When using the two-part test, The Supreme Court of New Jersey set forth a twelve (12) factors that a court must consider.  Those 12 factors are as follows:

  1. The reasons given for the move.
  2. The reasons given for the opposition.
  3. The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move.
  4. Whether the child will receive educational, health and leisure opportunities at                 least equal to what is available in the current location.
  5. Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location.
  6. Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child.
  7. The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed.
  8. The effect of the move on extended family relationships in the current location and in the new location.
  9. If the child is of a mature enough age, his or her preference.
  10. Whether the child is entering his or her senior year in high school, at which point he or she should generally not be moved until graduation without his or her consent.
  11. Whether the non-custodial parent has the ability to relocate.
  12. Any other factor bearing on the child’s interest.

Recently, the Supreme Court of New Jersey addressed relocation again when a divorced mother wished to move with her children from New Jersey to Massachusetts in Morgan v. Morgan (2011).  Mother was engaged to be married to someone in Massachusetts and wanted to move there because it was her home state and where her extended family lived.  Father opposed and during the five (5) years of litigation and trips to the Appellate Court and Supreme Court of New Jersey that followed, Mother’s engagement was eventually called off.  In fact, during that time, Father remarried in New Jersey and had another child.

Ultimately, the N.J. Supreme Court found that the original trial court’s decision which prohibited Mother from relocating should be reversed.  However, because so much time had passed since the original application to the court, the N.J. Supreme Court directed that the trial judge review the new circumstances.  

Although Mother ultimately prevailed in this matter, because of the extensive litigation and glacier-like pace throughout the court system, Father’s prevention of her initial request may have ultimately placed her in the position where she will not likely be able to move.  At the time of her original request, the children were seven (7) and four (4) years old.  The children are now five (5) years older and may very well be entrenched in their current situation in New Jersey.  Therefore, although Father ultimately “lost” on the legal issue, he was able to prevent the move because the children’s circumstances, and consequently, their best interests, had likely changed.

If you are considering a custody relocation, or wish to prevent one, consult with an attorney so that you can gather your facts and support your position. 

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

Friday, February 25, 2011

Social networking and your new significant other

If you are active on various social networking sites and you have a new romance in your life, you should take a few moments to read this article with helpful hints to protect your privacy.

Thursday, February 24, 2011

I need my credit score, but how do I find it?

This blog article from The Red Tape Chronicles, does a nice, quick job of explaining the difference between your credit score and your credit report, and the best places to find both.

Tuesday, February 22, 2011

You may need to begin repaying your first-time home-buyers tax credit

If you took advantage of the first-time home-buyer's tax credit in 2008, 2009 or 2010, then you may want to take a few minutes to read this article about whether you must pay back the money that you received.

Friday, February 18, 2011

Accessing information on your spouse from the computer or internet sources; What are the risks?

Today, a great number of us have come to heavily rely on the technology provided to us through our computers and phones as our main source of information as well as communication. Traditional letters and phone calls have been, in large part, replaced by emails and text messaging. Face-to-face social interactions are overshadowed by the convenience and mass accessibility of social websites, such as Facebook. Naturally, as technology changes and as our dependence on alternate forms of information access or communication increases, issues with privacy change. These days, we are not simply concerned with privacy invasion through simple methods such as eavesdropping, but we are also potentially vulnerable to someone accessing our voicemails, text messages, emails, social website accounts and instant messaging accounts. We no longer only have to worry if someone can hear our conversation as it occurs or read our mail as it arrives each day, but instead are faced with the risk of invasion of a great deal of sources that hold personal information.

During the divorce process, parties are often tempted to investigate their spouse’s various communications including emails, text messages and online social network accounts. This temptation is especially great when one spouse suspects the other is being dishonest, whether it be with financial matters or an extra-marital romantic affair. What many individuals do not realize is that research into a spouse’s electronic communications can have serious federal and state legal repercussions, because access to electronic communications are highly protected and regulated. 

Under the federal Electronic Communications and Privacy Act of 1986, it is prohibited to intercept and use reveal the content of communications, be they wire, oral or electronic, if one knows, or has reason to know, that the information obtained was in violation of the Act. The same Privacy Act also forbids the unauthorized access of a facility that provides electronic communication services to obtain, alter or prevent other access to a communication that is electronically stored. Additionally, the Privacy Act prohibits the use of intercepted communications as evidence if they disclosure of the communication would violate the Act.  The federal Computer Fraud and Abuse Act makes it illegal to access a computer without authorization, or beyond the limits of the authorization granted, to obtain information from the computer.
Many spouses would assume that they have authorization to access their spouse’s accounts and communications. However, this is not always true. Courts hold that it is access without authorization to access a computer that you have been prohibited from using to use your spouse’s password without their permission to access the computer. Furthermore, simply having access to a computer does not automatically give a person permission to access all of the computer’s files. A password protected file or user account can show the intent of the user to limit authorized access to those files.

As far as reading your spouse’s emails, if the emails are already stored on the computer and you have authorized access to the computer then review of the emails may not lead to liability under the federal law. However, if the emails are intercepted by access to an email account from another location, this may very likely be a violation of the law. More complex programs that track screen shots on the computer or track typing such as key logging software can also lead to legal liability. Federal courts have held that screenshot-capturing technology was a violation of the federal law. Software that tracked typing alone may not be a violation, but the use of passwords discovered through the software’s tracking is prohibited.
Beyond the risks of federal law violation, there are also legal implications under Pennsylvania law to consider. Under Pennsylvania law, one is guilty of identity theft if they use identifying information of another, without consent, to further an unlawful purpose (18 Pa. Cons. Stat. Section 41). Pennsylvania law also states it is illegal to intercept any communication, be it wire, electronic or oral (18 Pa. Cons. Stat. Section 5703). Furthermore, it is illegal to disclose or use any information obtained from the interception of the communication (18 Pa. Cons. Stat. Section 5703). It is also illegal to install tracing and communication interception devices without a court order (18 Pa. Cons. Stat. Section 5571). Pennsylvania also has specific provisions of the law that deal with accessing computers or computer files. Legal liability could arise from accessing a computer without authorization, or outside the scope of the granted authorization, whether it be to access property and services by false representations, to interfere with or damage the operation of any part of the computer, internet or telecommunication devices, or to remove or erase data, programs or software on the computer (18 Pa. Cons. Stat. Section 7611, 7613 and 7615).
            These laws, both federal and state, can be confusing and difficult to understand. However, it is clear that any investigation into another individual’s electronic communications (through their phone, email, facebook, et cetera) can be a violation not only of their privacy, but also of the law. This legal liability does not disappear because the parties are or were married. A person is entitled to the protection of their private communications even from their own spouse. Although the temptation to investigate can be overwhelming, especially when one party suspects misconduct, the long-lasting legal repercussions can certainly outweigh any potential benefits. Consult with an attorney to obtain advice for your specific situation. 
Written by Elizabeth Early, law clerk at the Law Offices of Linda A. Kerns, LLC.

Thursday, February 03, 2011

Divorce and taxes

Divorce raises many questions about taxes - especially for those in that limb stage of separated but not yet officially divorced.

The Internal Revenue Service publishes an extremely informative publication, updated yearly titled: Publication 504: Divorced or Separated Individuals.

Nothing can substitute for specific and tailored advice from your lawyer or accountant but if you would like to educate your self on issues such as Tax Filing Status (Married Filing Jointly, Married Filing Separately and Head of Household); Alimony, Qualified Domestic Relations Orders, Individual Retirement Arrangements, Property Settlement Agreements, Costs of Obtaining a Divorce and Tax Withholding, then review Publication 504 and keep it handy throughout your divorce and beyond.