Saturday, October 29, 2011

When a dispute becomes a spat

Recently, a Defendant in a case sought a continuance of a trial scheduled in Kansas City, on the basis that on of their primary attorneys, who lived in Dallas,  was expecting his first child.

Plaintiffs objected to the continuance and used as part of their argument a calculation of when the child was conceived, and therefore when the Defendants would have known about the due date.

The Judge granted the continuance and issued a spirited opinion as to the unreasonableness of the Plaintiffs' position.  You can read the well-drafted, tinged with sarcasm opinion here.


Lesson to be learned:

Be careful in your litigation about being so unreasonable as to irritate the judge.  Here, a simple request for a continuance ended up in a slap on the wrist from the judge --- a loss of good will that might have been prevented had the litigants been a bit more reasonable.

Tuesday, October 25, 2011

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Do not be a “Bitter Twitter.” Using a social media site like Twitter to vent about your spouse, gather supporters, spread the news about your divorce or try to set the record straight as to who is at fault will very rarely help you and in most cases simply make your divorce much more painful, lengthy and costly.


Thursday, October 20, 2011

Helping your children navigate a new custody arrangement.

Saying that separations and divorces are emotional and challenging is an understatement.  They rock families to their cores, and it forces each member of the family to adopt a new life view.  This is particularly true for children, who often have little true understanding of the reasons behind the dramatic shift in their lives.  Parents may not be able to stop the separation, but there are many things that parents can do to ease the transition and help their children as they adapt to their new lives.

1.                  Most importantly, there is no right answer.  Talking to friends, family and your lawyer can help you create a gameplan, but you have to determine what is right for you and your children.  What worked for your neighbor may not work for you, and that is okay.  Talking to a therapist or counselor could help you and your children.  A therapist, even a school counselor, could be the perfect neutral third party to help your children sort through their feelings, questions and concerns.  Moreover, a therapist could help you sort through your own complex emotions, while also helping you create a plan of action for your family.

2.                  Make sure that your children have a safe, comforting place to call their own in each parent’s house.  Ideally, this should be their own bedroom, or a bedroom shared with their siblings (not half or step-siblings, at least initially) in each parent’s house.  A separate bedroom is important, even if the children do not spend many overnights at the house.  If the children do spend overnights at the house, then there should be suitable sleeping arrangements, including a permanent bed.  Sleeping on a couch or inflatable mattress only leaves children confused and with a sense of instability and lack of permanency.  At the very least, the children should have a space where they can have some quiet, alone-time if needed. 

3.                  Your children should have all of the basic necessities at each parent’s house.  That means that the children should have toothbrushes, underwear, pajamas, medications (if possible), basic clothing items, nightlights, etcetera at each house.  By having duplicate sets of these essentials at each house, it reduces the stress of transitioning between houses by eliminating the feeling that they are going on a vacation for which they need to pack.  Additionally, it will reduce the likelihood that you will argue with the other parent about forgotten items. 

4.                  In addition to having the basic necessities, your children should have their own toys, books, and other comfort items at each house.  It is important for children to feel like they are not simply “visiting” the other parent’s house.  This is particularly important if there are other non-sibling children in the house.  By allowing each child to have their own possessions, it will decrease the likelihood of fights between children of a blended family and will provide the child a sense of security in having ownership over part of their lives.  In short, the parents should attempt for each parent’s house to equally feel like home for the children. 

5.                  Along the lines of the previous paragraph, a parent’s choice of words becomes important.  Make sure that you refer to both parent’s houses as “home” and try to avoid the word “visit.”

6.                  Create a calendar to show the children when they will be each parent’s house.  For young children, color-coding the calendar can be helpful – use one color for the days that they are with mom and another color for the days they are with dad.  This practice helps children to establish a routine and to gain an understanding that there is predictability to where they will be staying.

7.                  Give your best effort to working with the other parent to coordinate completion of home assignments and projects.  Things like permission slips, report cards and other important forms can easily get lost in the hustle and bustle, even when children are not transitioning between homes. 

8.                  Communicate with the other parent regarding the children’s activities.  Every child deserves the opportunity to have each of their parents watch them in the school play or on the soccer field.  Moreover, parents must communicate so that the child has everything that they need for the activity, including uniforms, instruments or the assigned shared snack.

9.                  Make sure that both parents’ contact information are included on all forms, even if one parent has primary custody and the other only has partial custody.  If something happens and a parent needs to be contacted, only the child suffers if the parent cannot be reached.  By providing the contact information for each parent, the likelihood decreases that a parent would not be contacted.

10.              Do not engage in negative talk about the other parent with or in front of your children.  Little children tend to have big ears and big eyes.  They hear conversations and notice tension and exchanged glances.  Be careful.

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

Wednesday, October 19, 2011

How to read a HUD Settlement Statement

Buying, Selling or Refinancing a house?  You should be intimately familiar with the HUD-1 settlement sheet -- the document that is the road map to your transaction.


Here is a link to a complete HUD-1.  Below I have provided a step-by-step guide to each form on the HUD-1 so during your next real estate transaction, you will be well-versed in the details of the process.  Read the guide in conjunction with reviewing the actual HUD-1 form.



HUD 1 - Page One


Sections 100 & 400:

Lines 101/401 Sales price as stated on the Agreement of Sale - This is the number that will be used to calculate realtor fees and transfer taxes.

Line 103 Total of buyers’ closing costs from Page 2, Line 1400 - You should always check the math and make sure the number is carried over correctly.

Lines 106-112 &
406-412 Pro-ration of taxes, sewer/trash rent, Condo/HOA, fees, etc. that have been pre-paid by the Seller.  Buyer is reimbursing the seller for prepaid items from the day of closing to the end of the taxing or payment period.  Always make sure the math is correct.

Lines 120 & 420 Total amount due from Buyer and due to Seller.


Sections 200 & 500:

Line 201 Total deposit (“down money”) credited to buyers at closing.  Make sure you receive credit for all of your deposits.

Line 202 New loan amount, as applied for by buyers with their new lender.

Lines 205-209 This section reports any credits made on the Buyers’ behalf, such as, cashiers/certified check from the buyers, second mortgages, closing costs credits from seller.

Lines 210-219 &
510-519 Pro-ration of taxes, sewer/trash rent, Condo/HOA fees, etc. that have not been pre-paid by the Seller.  These will be charged to the buyers at a later date.  Since they cover a portion of the time that the seller owned the property, the seller is responsible for that part of the total bill and pays them to the buyer.



Line 502 Total of Seller’s closing costs from Page 2, Line 1400.  Always check the math and make sure the number is carried over correctly.

Lines 504 & 505 Payoffs of Sellers’ mortgage liens against the property.  If you are the Seller, check these lines carefully and make sure they match the payoff numbers that you have received from your lender.

Lines 506-509 Additional charges due from seller, such as, Federal Express fees, repair bills, etc.

Lines 220 & 520 Total credits for the Buyers and total charges to the Sellers.

Lines 303 & 603 Total cash to/from buyers to total cash to/from sellers.


HUD 1 - PAGE TWO

Section 700:

Lines 701 & 702 Commission paid to Seller/Listing Broker.  Check the math and make sure this number matches your agreed upon percentage in the original listing agreement.

Line 703 Total commission paid at settlement by seller/buyer.


Section 800:

Line 800-815 Fees due from the buyers’ lender.  These will usually consist of points, appraisal/credit report, document preparation, flood certification, tax service, and any other fees charged.  Go over these carefully - you may have already paid some of these directly so make sure you receive credit.


Section 900:

Line 901 Interest due from the buyer (if they are obtaining a loan), from the day of closing to the end of the month.

Lines 902-905 Premiums due from the buyer for mortgage insurance, homeowners’ insurance, and flood insurance, if any are applicable.


Section 1000:

Lines 1001-1008 All escrows as required by the buyers’ lender.


Section 1100:

Line 1106 Notary fees due from buyer/seller.

Line 1107 Attorneys fees, if applicable, charged by the buyers’ or sellers’ attorney.  You may also choose to pay your attorney directly, outside of settlement.

Line 1108 Title insurance due from the buyers.  In Pennsylvania, this is a filed rate as determined by the Pennsylvania Insurance Rating Bureau based on the sales price.  It can either be a basic rate, reissue rate, or new construction rate.  Make sure you are charged the appropriate rate.

Line 1111 Endorsements are additional insurance coverage required by the lender. If you have questions, go through these carefully with your lender.


Section 1200:

Line 1201 Recording fees to record the applicable documents in the county courthouse.  (Deed, Mortgage, Assignment, etc.)


Lines 1202 & 1203 Transfer tax due from buyer/seller.  Make sure you are charged the correct rate.


Section 1300:

Lines 1301-1308 Any miscellaneous fees due from either the buyer or seller, such as, termite inspection, conveyancing fee, home warranties, etc.

Line 1400 Total settlement charges for the buyer and seller which will be carried over to page one on lines 103 and 502, respectively.

Tuesday, October 18, 2011

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Does your legal file look like this?




Just today a client called me asking for a copy of his custody order -- something that we had sent him several times already.  It is in your own best interests to keep copies of all of your important papers in a neat, orderly manner.  Your attorney may store files off-site so it could take some time (and expense) to call your attorney every time you need something.


I suggest labelling five folders a the beginning of your case:


1. orders


2. pleadings


3. correspondence


4. financial


5. notes


Every time you receive a piece of paper - file it in one of the above files, in the order you received it.  You will notice that I put "orders" at the top of the list --- as orders are generally the most important thing you receive in a case and something you may have to refer to time and again.


Because orders are so important, you may also want to scan a copy of each order into a folder on your computer - clearly labelled with the name of the order.


Wednesday, October 12, 2011

Tips from the IRS if you change your name after a marriage or divorce

Click here for tips on making sure your new name matches the name on your tax documents and with the Social Security Administration.

Click here for directions on how to obtain a new social security card.


Tuesday, October 11, 2011

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.


Deciding to divorce? Develop a checklist for yourself so that you can begin to gather the necessary documents. While each marriage, and therefore divorce is unique, a listing of all assets and debts is a starting point universal to all divorces. Here is a list to get you started (some of which may not apply to your specific situation):



a.   Copies of all retirement account statements.


b.   Copies of bank account and investment statements.


c.   A recent mortgage statement or rental lease.


d.   Recent pay stubs for both spouses.


e.   At least the previous two years of tax returns including all attachments and schedules.


f.   A copy of life insurance policies.


g.   A copy of the health insurance plan for everyone in the family.


h.   A list of all debts including credit cards, student loans, home equity loans and personal loans.


i.   A copy of the marriage certificate.

Monday, October 10, 2011

Not a LOL matter

Today, cell phones have become an almost necessary part of our lives, allowing us to be contacted at a moment’s notice.  Instant communication can be convenient and productive.  However, instantly being able to text an ex-spouse when emotions are running high may not always the best choice for you or your children. 


The New Jersey case of L.M.F. v. J.A.F specifically addresses text messages between ex-spouses.  In this case, the parties were married in 1989 and divorced in 2006.  The parties had joint legal custody of their two children, and they primarily communicated through text messages to limit confrontations.  Unfortunately, even the text messages became a source of grief.






After Father discovered that he and his current wife had missed his daughter’s basketball banquet, Father became very upset and his current wife sent several text messages to Mother.  The first text messages were sent between 6:50a.m. to 9:00a.m..  Later, Father’s current wife again sent Mother eight text messages between 7:32a.m. to 8:19a.m..  A month later, Father sent Mother 18 text messages from 6:50a.m. to 11:34a.m..  Several days later, Father again sent Mother texts from 8:45a.m. to 9:51a.m..  In response, Mother brought a claim for harassment due to the excessive texting.


The trial court agreed with Mother, believing that the conduct of Father qualified as harassment because “he communicated with her in a manner that was likely to cause annoyance.”  Additionally, the trial court also asked Mother about any incidents of domestic violence that had occurred between her and Father. Mother stated that Father had yelled in her face while in the house during the time of the divorce; however, the police were never called.  Father appealed the decision of the trial court.


The appellate court reviewed the facts brought into evidence from the trial court and analyzed them in accordance with the New Jersey Harassment Statute, N.J.S.A. 2C-33-4, which defines harassment.
 
In light of the Statute, the appellate court held that the text messages from Father to Mother were not harassment because Father did not send the text messages for the purpose of harassing Mother.  Furthermore, the appellate court noted that text messages from Father’s current wife should not have been included in the case, because they were not actually sent by Father.  Moreover, the appellate court also stated that, while evidence of harassment was presented by Mother, there was not enough evidence that Father’s conduct deserved treatment as domestic violence.  Specifically, Mother did not demonstrate a history of domestic abuse by the Father.  Rather, the incident showed that Father’s actions were an expression of anger during an emotional and stressful period of his life. 


Although Father’s case ended up on the right side of the law, angry, sarcastic or mean-spirited text messages have no place in meaningful co-parenting.  Certain behavior may not violate civil or criminal laws, but it could still be highly inappropriate.






Communications with an ex-spouse are often emotionally complicated and hard to maneuver.  To ensure that you receive a fair and just outcome, contact an attorney that will be able to advise you on the best steps to take.  In the meantime, avoid sending emotional text messages that later may come back to haunt you.  Do not respond if you receive inappropriate messages, because you likely will become enmeshed in a never-ending back-and-forth exchange of non-productive messages.


Written by Elizabeth Smith, law clerk, and edited by Elizabeth A. Bokermann, Esquire, associate attorney, at Law Offices of Linda A. Kerns, LLC. 

Friday, October 07, 2011

Go Phillies!

We are in the spirit at the office!  Go Phillies !


Helen Grispino, Legal Assistant Extraordinaire

Prepare now for custody issues during the upcoming holidays

Divorced and separated parents face difficult issues during the holidays.  If it is your spouse or ex-spouse’s turn for a holiday, this could be your first holiday without seeing your child, and that adjustment can be heart-wrenching.  Additionally, your children will be facing new experiences, and perhaps struggles, because they are not spending the holiday with both of their parents.  Here are some tips on how to navigate holidays and vacation schedules that will hopefully ease the transition:


1. Take into account how your family usually spends the holidays.  If Thanksgiving dinner begins every year promptly at 4:00 p.m., you do not want to schedule an exchange of your children at 4:30 p.m..  You should also consider who should provide transportation. 






2. Are there holidays or traditions that you celebrate but your spouse does not (or vice versa)?  For example, if your family has a big celebration on Christmas Eve, perhaps, the children could spend Christmas Eve with your family and Christmas day with your spouse’s family. These options can provide fertile bargaining territory. Trading holidays on an annual basis (for example: you have Fourth of July in even years and your spouse has it in odd years) is also an effective way to negotiate.  


3. Do you usually travel to visit out-of-town relatives?  If yes, make sure you build enough time into the holiday schedule to accommodate appropriate travel arrangements.






4. Obtain your children’s school schedules at the beginning of the year and sort out school vacations and days off.  The earlier you and the other parent come to an agreement, the easier it is for everyone, especially the children.  Once the schedule is set, children can get excited about a trip with mom during spring break or seeing grandma at Thanksgiving. 






5. If you or your spouse has a job that requires you to work on holidays, make sure that you factor that into your consideration.


6. Keep a check list, school schedule and yearly calendar handy when you think about and discuss these issues so that you consider all of the holidays, especially holidays that are important to your family.  Here is a list of possible holidays for your reference:
Martin Luther King Day


President’s Day


Spring Break


Passover


Easter


Mother’s Day


Father’s Day


Memorial Day


Fourth of July


Labor Day


Columbus Day


Veteran’s Day


Fall Break


Rosh Hashanah


Yom Kippur


Halloween


Thanksgiving


Christmas Eve


Christmas Day


New Year’s Eve


New Year’s Day


Winter Break


Children’s birthdays


Parents’ birthdays


Siblings’ birthdays




7. Also, remember to consider family traditions that may not be associated with a particular holiday. For example, if your family takes an annual summer vacation to the beach with all of the cousins, then you should factor the vacation into your agreement so that you are not exposed to the risk of arguing about the vacation with your spouse in the future. 






8. If you already have a blended family, make sure all custody agreements that you have work in conjunction with each other. For example, on Christmas Eve you do not want to be caught trying to figure out how you are going to drop off your children from your first marriage at their other parent’s house, while at the same time dropping off your children from your second marriage at their other parent’s house. 


9. Once you and your spouse come up with an agreement, it needs to be put into writing, and then it should be incorporated into an enforceable court order.  You can always negotiate changes between yourselves, but, in the event of a misunderstanding, you will have a set agreement on which to rely. Although you and your spouse can take this step on your own, the help of a family law attorney can make the process easier and produce a reliable, enforceable agreement for the future. 

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

Tuesday, October 04, 2011

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.


Review your health insurance plan and explore options available to you if you are covered by your spouse’s plan. Because that coverage ends at divorce, you will need to determine your other options. Sometimes people default and just simply decide to pay COBRA premiums to extend the pervious coverage. However, it can often be cheaper to simply obtain your own policy so explore what is out there.


Monday, October 03, 2011

In Pennsylvania, when is alimony awarded?

$$$$$$$$$$$$$$$$$$$$$$$$$$


Unfortunately for litigants seeking solid answers, no firm answer to this question about alimony exists. Like many other instances in the law, an award of alimony depends on the individual circumstances of each case. Pennsylvania law does not provide for a formula for the calculation of alimony (either duration or amount) or strict rules as to when it should and should not be awarded.


Our statute provides the factors to be considered when awarding alimony, but, like in many other areas of the law, the subjective factors can be given different weight by different courts. Additionally, overall circumstances of the entire divorce case and of the parties play a part in the decision.

The statute provides that when deciding whether to award alimony and in determining the type, amount, manner of payment and duration, the court shall consider the following factors:

1. The relative earnings and earning capacities of the parties.

2. The ages and the physical, mental and emotional conditions of the parties.

3. The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

4. The expectancies and inheritances of the parties.

5. The duration of the marriage.

6. The contribution by one party to the education, training or increased earning power of the other party.

7. The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodial of a minor child.

8. The standard of living of the parties established during the marriage.

9. The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.

10. The relative assets and liabilities of the parties.

11. The property brought to the marriage by either party.

12. The contribution of a spouse as homemaker.

13. The relative needs of the parties.

14. The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under Section 6102 (relating to definitions).

15. The Federal, State and local tax ramifications of the alimony award.

16. Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.

17. Whether the party seeking alimony is incapable of self-support through appropriate employment.

23 Pa.C.S. §3701

Even knowing the law, no one can predict with any reasonable degree of certainty and accuracy as to an alimony award, due to the subjectiveness of the ultimate trier of fact. However, experienced lawyers, who have practiced in the county where the case is litigated, can often analyze the issue in the particular case and guide their clients on this issue and make an educated, informed estimate.

Last spring, the Superior Court of Pennsylvania, our appellate court, decided an appeal from the trial court of Allegheny County wherein a wife challenged the alimony the trial court awarded her. Wife felt that the duration of the alimony was simply too short because she wanted to stay out of the work force so she could continue to home school her children.

The facts of the case revealed that husband and wife had two children. Wife was home schooling both children, who were approximately 14 years and 7 years old at the time of the appeal. Wife had been a teacher and left the work force in order to home school the children. The parties lived frugally in order to manage on one income. However, upon the separation and divorce, in order to continue home schooling, wife requested at least $700 a month in alimony until both children graduated from high school, in addition to child support. Husband objected on a variety of grounds including that they were no longer an intact family and they could not afford to continue to have wife out of the work force.

The trial court awarded wife $800 per month in alimony, which was $100 more than she had initially requested but the term was much shorter which would require her to enroll the children in traditional school, return to the work force relatively quickly and become self-supporting. Accordingly, wife appealed the trial court’s order. The Superior Court agreed with the trial court’s reasoning that it was unreasonable for wife to remain unemployed while husband continued to support both households for essentially the next twelve (12) years, until the younger child finished high school. Accordingly, the Superior Court did not disturb the discretion of the trial court on the alimony issue.

Divorce requires that the income that once supported one household must now be spread over two. In order to effectuate this division of income, many families must live significantly more frugally than they did as an intact family. Of course, if one or both parents increase their income, the family may be able to maintain a comparable lifestyle but often without the luxury of a stay at home parent.

This financial reality exists in almost every divorce case, even those involving significant incomes. Simple math often dictates the outcome: either divide the existing income between two houses and live more simply or increase the income so that more is available.

The trial court even noted that home schooling probably benefitted the parties’ daughter. However, alimony is a financial question - not a test of the best interests of the child. The economic realities in this particular case made home schooling a decision that was better suited to an intact marriage where one working spouse can support the household. The name of this case is Kent v. Kent, 2011 Pa.Super. 55 (2011), if you are interested in reading the complete Opinion.