Thursday, May 26, 2011

Daily Thought

"You do too much.  Go and do nothing for a while.  Nothing." 

"Happy Memorial Day Weekend." 

- Lillian Hellman

Monday, May 23, 2011

Food for thought

If you are struggling in your relationship, read this article for some food for thought.

Friday, May 20, 2011

There are many people who come and go . . .

and some of them really make a difference in our lives!

Thank you to my law clerk, Elizabeth C. Early, who graduated from Temple University Beasley School of Law yesterday.  Today is her last day at my office as she must start studying for the Pennsylvania and New Jersey Bar Exams which she will take in July.  Then she is off to Atlantic City for a year where I am proud to say that she will be the judicial law clerk to the Honorable William C. Todd, III for the 2011-2012 court term. I was Judge Todd's judicial law clerk for the 1998-1999 court term and it was absolutely the best experience a newly minted lawyer could have.

She gave me the perfect going away gift today -- Elvis wine glasses.  As someone who has been to Graceland five times and enjoys good wine, this is the perfect gift.

We bought her a super cool Keurig coffee maker (necessary equipment for anyone who will be enjoying two straight months of non-stop bar exam preparation.)  We also got her Krispy Kreme donuts!

I have mentored many students and young lawyers and I am especially proud of Liz -- she reminds me a bit of how I was way back when when I graduated from law school.  I loved the law and was excited to become a member of what is a truly honorable but challenging profession. I see the same sparkle in Liz's eyes and I am honored that she will soon become a member of the Pennsylvania and New Jersey bars.  She will be a credit to this profession.

I still love the law today -- perhaps more so than I did when I first started - if that is even possible.  I am absolutely thrilled with my career, my practice, my office and my accomplishments and I wish the same bright future for Liz.  She will be an asset to Judge Todd's chambers and her future clients will be lucky to have her.   Our new law clerk already started, a bright third year law student from Villanova -- Liz Smith.  She has big shoes to fill but I am confident she is up to the challenge.  Luckily, she is also named Liz so I won't have to make too much of an adjustment.

Good Luck Liz!  Godspeed!

Wednesday, May 18, 2011

How to Prepare for Family Law Mediation.

Some divorcing couples anticipate nastiness, escalating expense and out of control adversity in divorce, child custody and child support litigation.  To avoid the unpleasantness, some couples try mediation, which is when you hire a neutral person is to help you reach a settlement.  However, mediation simply does not fit every case.  Additionally, there are times when one person’s idea of a fair or acceptable resolution is far removed from the other party’s idea, and a mediation session will only be little more than another forum for griping.  

All that said, some couples can productively use mediation to settle some or all of the issues between them.  However, you must be prepared.  Here are some tips for how to make your mediation successful:

1. Understand that for mediation to work, both parties must approach it in good faith and have some semblance of urgency that they are working towards a resolution.  If both parties are not committed to making mediation work, it will be a useless exercise.  The parties must also remember that the result of mediation is often a creative solution to their conflict tailored to their individual needs and not necessarily the result that the parties would obtain were they to go through the court system.  

2. Remember that mediation begins with your initial contact with the mediator whether it is a phone call, email or in person meeting.  Make a good impression on the mediator so that you will be reviewed favorably.

3. The mediator should set the tone and procedure for the mediation sessions, as well as the schedule and ground rules.  Follow the mediator’s lead.  During a telephone call or meeting, always have your calendar ready and all documents that the mediator requested you provide.  Additionally, attempt to be as cooperative and constructive as possible.

4. Different mediators manage their cases in different ways.  However, you should be:
a. Ready to discuss the facts of your case in a non-confrontational and plain-spoken manner.  Rhetoric, personal attacks and nasty comments will not help you to resolve your matter peacefully.
b. Understand your own needs and interests.  Some people try to go into mediation without an understanding of their own goals and what they wish to accomplish.  
c. Be aware of the other party’s position so that you will be ready to react and present your counter-points.
d. Understand what issues you might already agree upon with your ex-partner.  Checking off items that have been resolved can give both parties a sense of accomplishment and satisfaction.  
e. Plan for any compromise or trade-off.  Sometimes something may be way more important to the other party than it is to you; thus, you should be ready with a list of those items or issues that you may be able to trade for something that has more value to your particular situation.  

5. Remember that mediation has its limitations.  If there are significant legal issues, such as the interpretation of a Prenuptial Agreement, or the value of a closely-held business or facts in serious dispute, such as income of a party or the existence of an asset, it may be unlikely that mediation will help the parties come to a meeting of the minds.  The goal of mediation is a satisfactory settlement.  Your mediator is not a decision maker, a trier-of-fact or a judge; therefore, so do not expect a decision.  Manage your expectations as to what can be reasonably accomplished or resolved in mediation.  

6. Understand the requirements of mediation such as the documents that will be required to be exchanged and the procedure to be used in the sessions.  You will be less nervous if you have a firm grasp on your role.

7. Despite parties’ best efforts, mediation sometimes simply does not work out.  The parties then proceed to trial or even arbitration.  Accordingly, prior to beginning the mediation, both parties should agree in advance on whether anything said or exchanged in the mediation will be admissible later at trial or can be used against a party.  Additionally, the parties may agree in advance on what documents are considered confidential.

8. Money is always a hot button topic.  When couples have children, sometimes it is more productive to first mediate custody issues and then move on to unwinding their financial lives.  Once parties have an understanding of how the custody arrangements will work out with their children, and feel secure in that area, they may be more amenable to discuss financial issues.  However, when a parent is worried about how often they will see their children or their children’s stability and security, they often have trouble focusing on the economic issues.

9. Make sure your perspective and case is reasonable and rational.  Insisting on a demand that is so high or completely out of the realm of possibility that the other side would be foolish to agree, only serves to inflame emotions and telegraph a message to the opposing party and the mediator that you are more interested in the fight than the resolution.  

10. Have an understanding before going into mediation about how the results will be recorded or reported.  Some people believe they have a deal in mediation and only find out later the other person changed their mind, or refused to sign a written agreement.  Understanding these ground rules before you start can help both parties avoid wasting their time.  

11. Family law situations are, by their nature, often confrontational and highly personal.  Despite the inherent hurt feelings in these situations, do your best to be polite, professional and cooperative.  You are there to persuade the other party to agree with you on a settlement.  You are not there to convince the other party that you are right and they are wrong.  In this regard, the mediator can be your ally if you prove your own trustworthiness and credibility.  

Finally, and perhaps most importantly, consult with an attorney, familiar with family law matters, before you enter the mediation process.  That way you will have an understanding of your rights and responsibilities and a framework in mind for what you perceive to be a reasonable settlement.  

Wednesday, May 11, 2011

Divorce in Pennsylvania: Where do I start?

I received a Divorce Complaint - what should I do?

First of all, do not panic.  A divorce action is a lawsuit, which means that the papers can look foreboding and unfriendly.  The process begins by one of the parties filing a complaint with the court and “serving” it on the other person.  “Serving” the complaint on the other person simply means that he or she uses one of several methods to make sure that the other person receives the document.  For example, the person could request that a sheriff “serve” the document to the other party.  If you are served with a complaint and you do not respond, then divorce may proceed without your position being represented or having your rights protected.

You should consult an attorney upon receiving a divorce complaint so that you understand your rights and how the divorce process works.  Additionally, you will want to receive guidance for an appropriate plan of action for your specific situation.  For example, you may need to file an Answer and Counterclaim.

What is a legal separation?

In Pennsylvania, we actually do not have a formal process of “legal separation.”  Separation simply means that you are living separate and apart from your spouse.  Separation may occur because either both of you agree that you are separated or by one of you physically leaving the marital home.  On the other hand, “separation” may occur, under some circumstances, even if you and your spouse are still living in the same residence.  However, whether or not “separation” is established while still living under the same roof is highly fact specific, and you should consult an attorney if you wish to establish a separation but still live under the same roof as your spouse.

What is a Property Settlement Agreement?

Husbands and wives can enter into a written settlement agreement to settle and resolve the financial aspects of their relationships, including:

* division of assets, such as bank accounts, real estate and personal property;
* support payable to the other spouse and for the benefit of the children;
* responsibility for debts and legal fees;
* health and life insurance arrangements; 
* custody of children and
* rights to inherit from the other.

This agreement is essentially a contract, but when the agreement is incorporated into a divorce decree or other court order, the agreement is enforceable as an order of the court, thereby providing the parties greater protection than would exist under contract law.   

Certain provisions in the agreement concerning child custody and child support can later be modified by a court if one or both of the parties’ circumstances change.  Therefore, you should clearly understand which provisions in your agreement are non-modifiable, and which provisions are subject to change.  Lastly, and perhaps most importantly, each party must fully understand the other’s assets, income and debts in order to make this type of agreement enforceable.  If full and fair disclosure is not provided, it is possible that, at a later date, one party could request to void the agreement.

What happens to the real estate that we own?

Most married couples own their home as “tenants by the entireties” or “joint tenants.”  This form of joint ownership means that neither spouse can sell the property without the consent of the other spouse.  Upon divorce, parties must decide whether they will sell their home or if one spouse will keep the home.  If one person wants to keep the home, the parties must agree on a value and refinance the mortgage into the individual spouse’s name.  It is not advisable to own property jointly with your spouse after a divorce; therefore, you should plan to sell or refinance the real estate.

What is “marital” property?

Pennsylvania divorce law provides that, generally speaking, all property acquired by either spouse during the marriage (with certain exceptions like gifts and inherited property) is “marital” property, regardless of which spouse’s name is on the property.  For example, if a car is purchased in Husband’s name during the marriage, then the car is marital property, even though Wife’s name does not appear on the title.  Additionally, if “non-marital” property that remains in one party’s name increases in value during the marriage, then the amount of the increase in value is considered a marital asset.  For example, if Wife owned a home, in her name alone, that was worth $200,000.00 prior to marriage, and at the date of separation the home was worth $250,000.00, then, in most cases, the $50,000.00 increase in value would be considered a marital asset.  

Marital property, if not divided by agreement of the parties, may be divided equitably by the court.  Similarly, debts acquired during the marriage are generally considered marital, regardless of how they are titled.  Debts will also be divided by agreement or by the court.

As with most issues in law, there are some exceptions to these general rules, and you should consult an attorney with any specific questions.

What about bank accounts?

If the funds in the bank accounts were acquired during the marriage, then, no matter whose name is on the account, both spouses have a marital interest in the funds.  If one spouse takes all of the money out of an account, he or she may have to account to the other for the money, no matter who originally deposited the funds into the account or how the account is titled.  As part of the divorce, the parties can agree to divide the funds or the court can equitably divide the funds, regardless of whose names were on the accounts.  The rules are similar for other types of accounts, like 401(k)s, stock accounts or IRAs.

Can the court order us to attend counseling?

Yes.  The court may require spouses to attend up to three counseling sessions with a qualified counselor.  Additionally, in child custody cases, courts frequently order parents to attend co-parenting counseling.

Who pays the attorney’s fees?

The court has power to award preliminary counsel fees to the dependent spouse, which means that the independent spouse (the spouse with the greater earning capacity) has to pay for the dependent spouses’ counsel fees.  However, this remedy is sparingly used by judges.  Most of the time, both spouses are initially responsible for paying their own counsel fees.  In addition, in the final order, after the property rights of the parties are determined, the court could direct the parties to pay their own costs and fees, or it may divide the costs and expenses equitably between the parties.  During your initial meeting with your lawyer, you should discuss payment and recovery of costs and attorneys’ fees.

How much does it cost to get divorced?

The cost of a divorce depends on a variety of factors, including the issues involved and the cooperation of the parties.  In addition to attorneys fees, parties may be faced with the following expenses: court filing fees, expert fees (such as accountants or appraisers), costs associated with refinancing or selling homes, counseling, copying and administrative costs.

Attorneys usually charge in the range of $200.00 to $450.00 an hour, and request an initial retainer fee of $2,000.00 to $5,000.00.  If you have questions about how retainers work, be sure to discuss the process in detail with your attorney.

The total cost of the divorce cannot be predicted, but cooperating and trying to settle certain issues will help keep the total bill in check.  You should always remember that at the end of the day, litigating every issue may not be the right financial decision for you.

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

Wednesday, May 04, 2011

What is the difference between arbitration and mediation in family law matters?

Sometimes, rather than going to court to settle disputes, parties choose to arbitrate or mediate their issues.

The arbitration process is procedurally similar to court, except there is no judge.  The arbitrator is a neutral attorney, hired by the parties, that listens to all sides and decides the case based on the evidence presented by the parties and their lawyers.  An arbitration is less formal than a trial and the presentation may be streamlined.  This procedure is usually simpler, faster and less expensive than litigation through the court system, because you are not subjected to crowded court dockets and burdensome court procedure.  Additionally, the arbitration takes place in a private conference room rather than the courthouse, which can reduce the stress on the parties.  Even though you are paying for the arbitrator’s time, you can actually sometimes save money in arbitration, because the process can be much more efficient.  An arbitration decision is generally binding upon the parties, subject to terms upon which they agreed before beginning arbitration.  In family law matters, both attorneys and their clients participate in arbitration.  

Mediation is a process where a neutral mediator is chosen by the parties to assist them in reaching a mutually acceptable settlement of their dispute.  Some mediators are attorneys, but others have no legal background.  Sometimes, parties limit the mediation to only cover one aspect of their divorce, such as child custody, division of assets or support.  Notably, the mediator has no power to decide the case or issue a ruling, but instead helps the parties come to their own agreement.  Matters can be mediated even before parties start the court process.  If no settlement is reached during the mediation process, the parties can then proceed to arbitration or litigation.  Generally, mediation is not binding unless the parties draft and sign an enforceable agreement, intended to be entered as a court order.  In family law cases, attorneys usually do not attend mediation with the parties.  Rather, the parties meet with the mediator and strive to reach a mutually acceptable agreement in a non-adversarial setting.

Your attorney can assist you with deciding whether arbitration or mediation is right for you.  Sometimes, parties can agree on some issues but mediate or arbitrate others.  Obviously, both arbitration and mediation are by agreement of the parties.  If your spouse does not want to participate in these alternative processes, you cannot force them and will simply have to go to court.  However, most counties in Pennsylvania direct parties to try mediation, at least one time.