Friday, April 29, 2011

Will a New Jersey court award counsel fees?

            Many times clients, especially dependent spouses, proceed through a divorce with the expectation that the opposing party will be ordered to pay for their counsel’s fees and costs.  Similarly, many clients, usually the independent spouse, fully expect that each party will pay their own counsel fees and costs.  Both of these assumptions are risky assumptions, because, counsel fee awards are infrequent, yet courts will award the payment of fees and costs under certain circumstances.  Therefore, clients that rely on their assumptions that the other party will pay for their attorney or that each person will be responsible for their own fees and costs often may fight tooth and nail over small issues instead of choosing to settle and compromise.  This tactic only serves to drag out litigation, and causes the parties to unnecessarily waste money and amass significant debt to their attorneys.

            Recently, the Superior Court of New Jersey upheld an award of counsel fees in Becker v. Becker.  In a succinct opinion, the Court held that New Jersey judges must follow the factors listed in Rule 5:3-5(c) when determining whether to grant an award of counsel fees and costs.  These factors include: the income and disposable income of the parties, their capital assets, and their ability to pay or contribute to their own counsel fees.  Therefore, an award of counsel fees and costs is a highly fact-specific decision.  For example, in Becker, the Court upheld an award of counsel fees paid from Husband to Wife, because the Court found that Husband was in a financially superior position and because he was the party responsible for inflating the legal costs by being uncooperative in the litigation.

            Therefore, when proceeding in a divorce or any family law litigation in New Jersey, spouses should be careful about what assumptions they make regarding counsel fees.  Parties should be careful to avoid allowing an assumption about who will be paying the attorney at the end of the day to motivate their litigation decisions.  

Written by Elizabeth A. Bokermann, Esquire, associate at the Law Offices of Linda A. Kerns, LLC.

Wednesday, April 20, 2011

Try saying it a different way

Communicating with your ex-spouse, especially when you share children,  presents what can sometimes seem like an impossible task.  Sometimes the simplest of exchanges dissolve into bitter diatribes, accusatory remarks and non-productive name calling.  What to do?

Try pressing the reset button and present information to the other person in a whole new way.  Watch this video for inspiration.

Tuesday, April 19, 2011

Tips for home sellers

Spring is here.  That means that it is the spring real estate market, and home owners across the nation are placing their homes on the market.  If you are a potential home seller, read this helpful article for mistakes to avoid.

Monday, April 18, 2011

Custody / Visitation / Joint / Shared: What do these words mean?

When litigating custody in Pennsylvania, certain terms are used in court, legal pleadings and in negotiations between parents.  The Pennsylvania custody statute provides actual definitions for various terms and, if you are engaged in a custody dispute in this Commonwealth it is important for you to understand these terms, as defined by statute.  

Sometimes, people agree to “joint custody” or “legal custody” without understanding what those terms actually mean.  Before you negotiate with the other parent, learn the proper definitions.

Below, I have listed the terms along with their definitions pursuant to our custody statute as defined in Title 23, Chapter 53 of the Pennsylvania Consolidated Statutes.  Some of these definitions are edited slightly from the words in the statute for clarity to provide help to litigants in understanding the terms.  For more specific advice, related to your situation, it is always best to consult with an attorney.  

Abuse - The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or parents who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incests with or without a deadly weapon. 
(2) Placing another in reasonable fear of imminent serious bodily injury.
(3) The infliction of false imprisonment.
(4) Physically or sexually abusing minor children.
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.

Adult - An individual 18 years of age or older.

Agency - Any organization, society, institution, court facility or other entity which provides for the care of a child.  The term does not include a county Children and Youth Social Service Agency.

Child- An unemancipated individual under 18 years of age.

Legal Custody - The right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.

Parental duties - Includes meeting the physical, emotional and social needs of the child.

Partial physical custody - The right to assume physical custody of the child for less than a majority of the time.

Physical custody - The actual physical possession and control of a child.

Primary physical custody - The right to assume physical custody of the child for the majority of time.

Relocation - A change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.

Shared legal custody - The right of more than one individual to legal custody of the child.

Shared physical custody - The right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.

Sole legal custody - The right of one individual to exclusive legal custody of the child.

Sole physical custody - The right of one individual to exclusive physical custody of the child.

Supervised physical custody - Custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.  

Friday, April 15, 2011

Can I expunge a Pennsylvania PFA order against me?

          A Protection From Abuse Order, also known as a PFA, is an order entered by the court to protect victims of domestic abuse from their abuser. Under Pennsylvania law, PFAs can be ordered between family or household members, sexual or intimate partners or persons who share biological parenthood. PFAs arise from a great variety of circumstances and, although any allegation of abuse is extremely serious, the facts of each case can differ greatly. When an individual seeks protection, a temporary PFA is issued. Then there is a hearing where the court determines whether a final PFA order, for a longer period of time, is appropriate. The court has the ability to create a PFA that is best suited to protect the parties involved, and the orders can vary in severity as well as length. The maximum length of a PFA in Pennsylvania is three (3) years, unless the plaintiff (the individual who originally sought the protection of the PFA) petitions the court to extend the length of the order. Civil court grant the orders, which means that, even though a PFA is extremely serious, it is part of a person’s civil, not criminal, record.
Many times, after the PFA has expired, people want to know how to remove the PFA from the court record. Understandably, for many individuals, a PFA on the court record could potentially have lasting negative effects on their employment opportunities, as well as their personal reputation. Although PFA court records are not easy to obtain, they are certainly not private or protected; therefore, it is possible that a potential employer could become aware of it, especially in professions where comprehensive background checks are required. Removal of a PFA from the court record, also known as expunging the record, is much more difficult than many people realize.
The removal of a PFA from the court record is only allowed in certain circumstances. Pennsylvania law does not specifically address expunging a PFA, thus the legal authority on this topic comes from court decisions.
In the 1998 Superior Court of Pennsylvania case P.E.S. v. K.L., a PFA was filed, but neither party appeared for the final hearing. Therefore there was no finding of abuse, but the original filing remained active in the court system. The court stated that they would allow the expunction of a PFA from an individual’s record in limited circumstances where a respondent seeks to protect his or her reputation. It is important to note that there was not a PFA ordered in this case, rather there was only an original PFA petition filed that was not pursued by either party.
The Pennsylvania Supreme Court addressed PFA expunction in the 2002 case Carlacci v. Mazaleski, where a PFA filing led to a temporary PFA order. The parties then executed an agreement stating that the temporary PFA was null and void before a hearing was held to determine if a final PFA order would be established. The court reiterated that an individual has the right to petition to expunge a PFA petition against them to protect their reputation. The court also determined that when the petition is either dismissed (as in the P.E.S. case) or the proceedings never go beyond the temporary order stage to a hearing on the necessity of a final PFA, the court does not need to go further in determining if the record should be cleared.
There was no clear decision on whether PFA petitions that actually led to a final PFA could be expunged after the terms of the final PFA Order expired until the Superior Court of Pennsylvania decided Commonwealth v. Charnik.  In Charnik, the man charged with a PFA had two indirect criminal contempt charges for violating the PFA. The victim later filed a Petition to Withdraw the PFA Order. The court ruled that this case was distinct from prior cases because the order was final, there had been a hearing on the evidence and the court determined that the protection of a PFA was appropriate. Thus, the court declined to allow for the expunction of a final PFA order at that time.
            Unless Pennsylvania courts have the opportunity to address final PFA orders and determine that they may be expunged, they currently are not subject to expunction. Only orders that have been dismissed or fail to go beyond the temporary order stage can be expunged from the individual’s record, and even this procedure is not automatic. This is especially important for individuals involved in PFA proceedings to keep in mind. Of course, in some circumstances a PFA is absolutely necessary for the protection of a party and later expunction of the record is not an appropriate consideration. However, if the parties can agree to terms under an agreement without requiring a final PFA, this can save the alleged abuser considerable future difficulties explaining the court record. If you or someone you know is involved in PFA proceedings, it is wise to consult with an attorney to obtain the best legal advice for your situation. 

Written by Elizabeth Early, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Linda A. Kerns, Esquire.

Friday, April 08, 2011

Supporting parenting coordinators in New Jersey

What is a parenting coordinator?  A parenting coordinator acts as a liaison between parents to help them communicate regarding decisions, priorities and planning that involve their children.  When necessary, a parenting coordinator can make decisions so that the parties do not have to rely on the court system for every dispute.

Recently, the Superior Court of New Jersey issued an opinion in Segal v. Lynch (2011) that strongly supported the use of parenting coordinators.  Parenting coordinators are often used to help parents in the most contentious custody cases.   They are an invaluable resource for parents who cannot agree on any decisions and continually fail to communicate.  In other words, parenting coordinators are a priceless tool in situations where the parents often cannot see past their own disagreements to unify for the best interests of their children.  As the court acknowledges, parenting coordinators have a difficult job that is often thankless because they become the target of an unhappy parent’s frustration and anger.

In the toughest cases, a parent may only see a parenting coordinator as a roadblock to getting what they want.  In Segal v. Lynch, it appears that the parenting coordinator fell victim to a father’s frustrations.  The result of the case strongly supports parenting coordinators because it protected a parenting coordinator from the merit-less claims of a parent by requiring the parent to pay the parenting coordinator’s fees.  Furthermore, the court upheld as appropriate the actions taken by the parenting coordinator.

The court time-and-again reiterated that public policy supports using parenting coordinators and providing protection to them because they ease the burden on a burgeoning court system.  By using the parenting coordinators, parents’ claims often can be addressed without having to litigate minor concerns, like whether a child should play soccer after school.  

New Jersey has established a program through which courts and parents can utilize parenting coordinators.  Under the program, there are specific and detailed guidelines establishing the procedures and policies.  Included within these policies are systems for filing grievances.  The Segal court demanded that the procedures be followed.  When the procedures were followed, the court found that a parenting coordinator could receive fees as outlined in the parenting coordinator retainer agreement.  In fact, the court went so far as to acknowledge that it would be “crippling” to the parenting coordinator program if parenting coordinators where not compensated for their time, even when the time was spent responding to grievances filed by one of the parents, especially when the grievances were baseless.

When utilizing a parenting coordinator in New Jersey, it is important that the parties fully understand the state guidelines and the parenting coordinator’s retainer agreement, because, as was demonstrated by Segal, the courts likely will uphold the parameters established.  The guidelines specifically address issues such as filing grievances, hearings and parameters for the relationship.  In short, parents must understand the guidelines for parenting coordinators so that the use of a parenting coordinator is beneficial for all parties.

Ultimately, in difficult parenting cases, a parenting coordinator can be a valuable tool for parents so that they can reach decisions that benefit their children.  That said, parents should fully understand the terms of the arrangement and the parameters of New Jersey’s guidelines prior to signing the retainer agreement.  By being prepared, all parties stand to receive benefits from the relationship.

Written by Elizabeth A. Bokermann, Esquire, associate at Law Offices of Linda A. Kerns, LLC.