Tuesday, August 30, 2011

Arguing with an umpire

 When we are young, we are taught to respect persons of greater authority in our lives.  For people going through litigation, it is important to remember this important life lesson for several reasons.

Judges deserve the respect of both the lawyers and litigants that appear before them.  Granted there are always exceptions to the rule, in the sense that deviant individuals, including judges, always exist.  However, by and large, the judges of our court system are well-educated, experienced professionals.  Judges understand and honor the law, and, usually, they show due respect to both the lawyers and litigants that appear before them.  Additionally, judges, especially in family court, have broad discretion in their decision-making abilities.  Showing respect, civility and courtesy to the individual who will be making decisions about your case can only help your position.

Obviously, not all decisions that judges make align with the decisions that we wish they would make; however, rarely are they outside of their scope of discretion.  Our justice system gives judges significant power to make decisions.  Judges often profoundly impact the lives of the litigants in their courtrooms, and most understand and appreciate the significant impact of their role.  A client's demeanor and respect, or lack thereof, for the judge could significantly sway a judge.

Litigation, whether related to divorce, custody or support, is emotional, tiring and often overwhelming for clients.  By the time clients arrive for their day in court, many of them are at the end of their ropes.  I believe this is why clients are often quick to blame and abuse judges when the results are not as desirable as hoped.  Certainly, I can sympathize with clients when I think that a judge did not make the correct or appropriate decision.  However, clients do themselves no favors by blaming judges.  When clients angrily lash-out at judges, particularly when they are within earshot of the judge or other court staff, they are, in all likelihood, doing themselves harm in the litigation, especially if they will appear before that judge again in the future.

Attacking the person who is in charge of your future is not productive.  Although it may give you temporary relief to lose your temper or lash out, such behavior could cause the judge to look unfavorably upon you.  Second, particularly in cases involving children, judges take seriously the responsibility of deciding the best interests of a child.  Acting out of anger or frustration in the presence of a judge or other court administration may cause the judge to question whether the client is a fit parent to promote the child's best interests.  Lastly, lashing out ultimately does nothing to change the situation or make the client feel better.

Therefore, next time you attend court and find yourself on the tough-end of a decision, remember to separate the judge from the decision.  Instead of attacking the judge, move on to other ways to try to better deal with the circumstances.  Like arguing with an umpire at home plate after he has made a call, arguing or disrespecting the judge will not help.

 Written by Elizabeth A. Bokermann, Esquire and edited by Linda A. Kerns, Esquire, of the Law Offices of Linda A. Kerns, LLC.

Monday, August 29, 2011

Clean up your web presence

Here is a great site you can use as a guide to delete unwanted web accounts on sites like Amazon, Facebook, Monster, etc.


Thursday, August 18, 2011

The New Question: Who is your Mom?

Artificial insemination, a technologically-advanced method that couples use to conceive, complicates the issue of identifying the parents because the process almost always involves more than one man and / or more than one woman. As medicine and technology constantly evolve, the law is often left struggling to keep up, especially in terms of parental rights. One way New Jersey has chosen to regulate parental rights of those that donate sperm, or are otherwise involved in the conception process, is the codification of the Artificial Insemination Statute. N.J.S.A. 9:17 - 44.

In E.E. v. O.M.G.R, a trial court case in New Jersey, the court held that an individual may not terminate their parental rights through a contract. E.E. v. O.M.G.R., 20 A.3d 1171 (2011). In E.E., the plaintiff was a single woman who wanted to become pregnant but did not want to go through the expense of purchasing sperm and going to a physician for the procedure. Instead, plaintiff was able to conceive through the use of a friend’s sperm, which was administered by plaintiff with a common kitchen turkey baster. After conception, both parties entered into a written agreement stating that the sperm donor chose to surrender and / or terminate all future rights and responsibilities to the child. Furthermore, the biological mother agreed to assume all financial responsibility. Once the child was born, the parties signed a Consent Order that vacated all of the parental rights and responsibilities of the sperm donor father. This Consent Order was then submitted to the trial court. 

In E.E., the court held that each child has the right to security from two parents. Furthermore, although there are ways in which a parent may terminate his or her parental rights of a child, parental rights cannot be terminated by a simple contract. Specifically, parental rights may only be terminated in cases where: 

another party is willing to adopt the child,
one parent is declared unfit or
if the child is removed from the parent for cause.

Although the court recognizes that parental rights are established by a genetic relationship, the court also acknowledges that this is not always a controlling factor to parental rights. 

Because New Jersey has an Artificial Insemination Statute, the court must adhere to the plain language within the Statute. Under the Artificial Insemination Statute, unless the donor and the recipient have entered into a written contract, the donor will have no rights or duties stemming from the conception of the child under the supervision of a licensed physician. However, because, in this particular case, there was no licensed physician who facilitated the insemination, the statute could not be applied.

Although the Artificial Insemination Statute does not cover the actions taken by this particular biological mother, the court still held in the biological mother’s favor. Specifically, the court awarded the biological mother sole custody of the child and denied the sperm donor any parenting time. 

If you or someone you know has questions about parental rights, you should contact a lawyer who can appropriately serve your needs. 

Written by law clerk Liz Smith. Edited by Elizabeth A. Bokermann, associate at Law Offices of Linda A. Kerns, LLC.

Saturday, August 13, 2011

How much is the marital residence worth?

A home is often a married couple’s largest asset, both emotionally and financially. In divorce cases, dividing, keeping or selling the marital home is often a bitter point of contention between the parties. When the parties decide to sell the home, but it is not sold immediately, many questions can arise.  For example, New Jersey courts have had to examine whether the home should be valued at the date of divorce, at the date of selling the home or at some other date.  

The Supreme Court of New Jersey ruled on the issue of date of valuation in May 2011 in Sachau v. Sachau, 17 A.3d 793 (N.J. 2011). In Sachau, during the course of the marriage, the parties had two children. Under the divorce agreement, mother was able to live in the house with the children until the youngest child turned eighteen years old or graduated from high school, whichever occurred later.  Once the youngest child met the criteria, the house was to be appraised and listed for sale within thirty days. In 1984, the youngest child graduated from high school; however, no action was taken to sell the house over the next twenty-two years. 

In 2005, twenty-one years after the youngest child met the trigger criteria, father was living on social security payments and was unable to support himself. Father filed a Motion to Compel requesting to sell the marital home and divide the proceeds of the sale. Both parties believed that the marital property should be sold; however, each proposed a different date for valuation. Mother proposed that the price of the marital property should be calculated in reference to the 1979 value of the house, which was the time of the parties’ divorce. Father believed that the house should be valued at the date of the triggering event, the graduation of his youngest daughter, in 1984.  In the long run, neither Mother or Father’s date was chosen.

On review, the Supreme Court of New Jersey held that the Appellate Court incorrectly analyzed Pacifico v. Pacifico, 920 A.2d 73 (N.J. 2007). Under Pacifico, absent an agreement by the parties stating a particular date, the marital property should be valued at the actual date of the sale. The Sachau divorce judgment did not assign a particular date or value to the marital property. Therefore, under Pacifico, the marital property should not be valued at the price it would have sold for in 1979. Rather, the marital property should be valued at the date of actual sale, more than twenty years after the divorce. The Supreme Court clarified that, under Pacifico, the marital residence should only be assigned a value at the time of the triggering event (i.e.: the child’s graduation) if the sale of the home actually takes place at that time.  In other words, the date of sale trumps other factors.

Ultimately, the Court held that the house should be valued at the date of sale and that the proceeds should be equitably divided between both mother and father. 

In short, parties should place a date of valuation in their divorce agreement for the marital home. If the parties in Sachau had included terms regarding valuation, then there would not have been any substantial issue before the Court. However, because the parties in Sachau did not include a date of value, the Court chose to follow Pacifico, which holds that valuation should occur at the time of sale.

Equitable distribution of property is often a complicated matter, and it is particularly important, to the extent possible, to anticipate future events when drafting an agreement. To ensure that you receive a fair and just outcome when navigating the divorce process, you should contact an attorney who will be able to help you create an appropriate strategic plan.

Written by Liz Smith, law clerk at Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate at Law Offices of Linda A. Kerns, LLC. 

Monday, August 01, 2011

How Not to Act in a Divorce and/or Custody Action

Today's Wall Street Journal featured an article describing a study where a simple facial recognition program combined with Facebook could successfully identify about one-third of the random photos submitted through the program.  Of those identified, the program could also correctly state the first FIVE numbers of the social security number for 27% of the people, by using information people made available on Facebook such as their birthday and place of birth.  Scary - right?  Especially because the first five numbers are supposed to be the really secret ones!  (Tech Today: Using Facebook and Facial Recognition to ID Random People, The Wall Street Journal, August1, 2011.)

Oversharing online has become an epidemic and the more that seems to be written, warning people to be careful, the more people tend to ignore the advice. The Wall Street Journal article demonstrated how piecing together random bits of information can reveal what was heretofore personal and private information.  Additionally, there are the circumstances where people pretend to be something they are not, and use your online information to scam, hurt or fraud you.  The recent movie, "Trust," illustrated how a teenager can be tricked into a life threatening situation when a predator uses information he gained online to ensnare her.

Of course, there are always the people that purposely put every thought, feeling and minutiae about their lives out there for everyone to read.  In a divorce and/or custody situation,  this can be especially devastating to all involved, especially the children.  I remember I was involved in a case where one of the parents discussed on-line how the pregnancy was not intended and how they really did not even truly care for the other parent. Their child, now school-age, will certainly be thrilled when he, or perhaps his friends, find this rant regarding the less than loving circumstances of his entry into this world.

Because divorce and custody battles can be so frustrating and expensive, some litigants become so consumed that they vent to everyone and anyone who will listen.  Publishing your complaints on-line exposes you to an unlimited pool of listeners, some of whom will undoubtedly be sympathetic.  However, it is never a good idea to air your dirty laundry so that your children, and also their friends, teachers, coaches, employers and any one else who may know them become privy to the sordid details between you and your ex-spouse.

A father in Bucks County currently feels that because he interprets the free speech clause of the First Amendment to the Constitution as permitting him to say whatever he wants, about whomever he wants, in a public forum, that he should be allowed to do so, consequences be damned.  Read the story in the July 31, 2011 edition of the Philadelphia Inquirer: Divorce blog's rancor erupts in free-speech dispute.  After the trial court ordered the father to take down his blog, classily titled ThePsychoExWife, he turned the dispute into a free speech argument and is seeking appellate review.  However, before congratulating him as a civil rights crusader, remember that he is fighting for the right to publish disparaging, mean-spirited and downright ugly and unkind comments about the mother of his children, with whom he shares custody.  Even if all of his allegations are true (and he dutifully comments on everything she does, from missives regarding her alcohol abuse, commentary on her parenting choices of feeding the children fast food and letting them watch television to digs regarding her personality), is his online ranting and raving helping the children?  And even if there were potentially available "measures to keep [the children] from viewing [the website]," does that really protect them?  Is school and making friends and growing up not difficult enough without your family's nasty squabbles being publicly available for all to see?

This father should grow up, simmer down and put his children's well-being first and foremost.  These children need a parent, not a misguided, mean spirited free speech crusader.