Wednesday, February 29, 2012

In Pennsylvania, do I have to share my settlement with my spouse?

An individual may be entitled to a monetary settlement for many various reasons.  Perhaps, the most frequent reason that a person may receive a settlement is as part of the resolution of a claim arising from an injury or workers compensation claim.  Individuals also may receive settlements as part of a class action lawsuit or other civil claim.



Recently, the Supreme Court of Pennsylvania clarified in Focht v. Focht whether the funds received as part of a settlement are considered marital property during equitable distribution.  In general, property or assets acquired prior to the date of marriage OR after the date of separation are not marital property.  Anything acquired between the date of marriage and the date of separation is considered marital property, and therefore is subject to equitable distribution upon divorce.  Under this general standard, if both the cause of action and the settlement occur during the marriage, then the funds are clearly marital property subject to equitable distribution.  Likewise, if both the cause of action and settlement occur either before the date of marriage or after the date of separation, then the funds are non-marital property. 



The issue becomes a bit more confusing if the either the cause of action accrues prior to the date of marriage or the settlement is received after the date of separation.  In Focht, the Court clarified that the rule for determining whether the funds are marital property depends on when the cause of action accrues.  In relation to a “cause of action,” the word “accrue” has a specific legal meaning, and the Court cites the definition as “to come into existence as an enforceable claim or right; to arise.”  The Court further clarifies that “a cause of action accrues only when one has the right to institute a suit.”  In other words, a cause of action accrues when an individual knows or should know that something has occurred that gives him or her the right to pursue legal action and a potential financial award or settlement.

For example, if an individual is crossing the street and is hit by a car, then the cause of action accrues when the accident happens.  Using this example, an individual might file a lawsuit against the driver.  Litigating the case may take years and the injured individual may not receive the settlement until quite some time after the actual injury occurred.  If you add a marriage and divorce into the scenario, an individual could easily be married or divorced during the span of the litigation.  Under the Focht case, determining whether the injured individual’s settlement is marital property would depend on the marital status of the person when they were hit by the car.  If the person was hit by the car prior to the date of the marriage, then it does not matter whether the settlement is received prior to or after the date of marriage.  The settlement will be non-marital property.  On the other hand, if the person was hit by the car after the date of marriage but before the date of separation, then it does not matter whether the settlement is received prior to or after the date of separation.  The settlement will be marital property.

If you are going through a divorce, consult with your attorney regarding any settlement that you have received or may receive in the future, as specific facts and nuances in each case can change the legal scenario.

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

Tuesday, February 28, 2012

Helpful Tip Tuesday

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


Think before you tweet, email, post, facebook, myspace, instant message or broadcast. Whatever you put out there for public consumption, even if you later attempt to retract it, could be there forever. In the heat of the moment, you could say something that you will regret forever. Take a breath, calm down, and keep your thoughts to yourself.

Friday, February 24, 2012

Yet another warning of the dangers of Facebook during litigation

It will never cease to amaze us the comments, pictures and information that people will post on their social media accounts.  As this story demonstrates, your actions on the internet can cause even more problems for you during litigation.  If you would not want a judge to read it, then you should not post it on the internet!

Tuesday, February 21, 2012

Helpful Tip Tuesday

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



If you are going through a divorce and you have drafted a Health Care Directive, Power of Attorney, Living Trust, Living Will or other legal document giving your spouse a position of power, consult with your attorney immediately. You may not want your spouse to have decision making power of your life or death.

Monday, February 20, 2012

How to obtain information on your past tax filings from the IRS

Are you filing for divorce or child support and need copies of past tax returns or information about what you filed with the IRS?  You can actually obtain that information directly from the IRS.

Click here to learn how to order a Transcript of Account.  This document lists most of the line items reported on your tax return as originally filed.  If you cannot find your actual tax return, this document will at least provide information on what was filed.   This is a free service from the IRS.  you can find out more by clicking here.

You can also order a copy of an actual tax return for a fee.  Click here for the order form.

In a divorce situation, if you filed joint returns with your spouse and do not have copies, you can order the information directly from the IRS, bypassing the lack of cooperation you may be experiencing from the other side in a divorce matter.

Wednesday, February 15, 2012

I have a consultation scheduled with an attorney - what should I expect?

Knowing what will happen during your first meeting with a divorce lawyer will not eliminate the anxiety and tension that builds prior to your visit, but you may be more at ease if you know what to expect.

I cannot speak for other attorneys, because styles and practices may differ.  At my office, a client’s first interaction with an attorney begins with the first phone call or email.  I do not provide specific advice without a complete consultation, instead the purpose of the first phone call is for my office to get basic information: names of the parties involved (so that I can check for conflicts), addresses (so that I can determine whether the case is in a county where I normally practice), and basic facts about the parties and circumstances (are there children, is only one person a wage earner, are the parties separated or still together, is the case already in progress, etcetera).  

Overview of a Consultation
If a person decides to come in for a consultation, then we schedule an initial meeting that takes approximately 90 minutes.  During the meeting, I obtain additional information regarding the background and relevant facts.  Then I explain the legal procedure and we discuss a strategy or plan.  I provide the client with a packet of information that I have developed over the years so that the client does not have to take notes during the meeting.  



At the end of the consultation, I explain the future steps that I recommend, as well as any work the client needs to do, including: obtaining documents, researching values, etcetera.  I also quote my initial retainer fee at the end of the consultation, which is something I usually cannot do until I understand the ins and the outs of the case.  It is important to understand that an attorney does not represent a client and will not take action on behalf of a client until the retainer fee has been paid.

My website contains a list of documents that are helpful to bring to the first consultation.  Sometimes, clients simply do not have the documents, perhaps because their spouse has them or they are lost.  In that case, clients should bring what they have.  However, the more documents that the client brings, the more information I have to give the most comprehensive advice possible.

More Details About a Consultation
The consultation in my office begins in the reception area.  My legal assistant provides a short form for clients to fill out -- just the basics like the names, addresses and birth dates of the parties and the children.  I like to obtain most of my information during the actual interview, because I find I can get a more complete picture that way and, besides, everyone hates filling out paperwork.  My dog, Stormer, greets all clients, and I think he helps to calm nerves.  Clients also have the opportunity to have a coffee, tea, water or soda.  We also keep candy in the reception area -- a sweet treat to get your mind off of your troubles.  My legal assistant also collects the payment for the consultation.  We accept cash, checks and all major credit cards.

The actual consultation occurs in my conference room (where I have more candy and water or soda available).  I also have pens and notepads in case clients need to write something down -- although they rarely need to write down anything because I give out a comprehensive packet.

I begin the meeting by explaining the attorney-client privilege. I am duty-bound to keep everything we discuss private - even if the client does not hire me and moves on to another attorney.  I explain that it is important for the client to be as open and honest as possible with me so that I can give the best advice possible.  Understand that I have literally heard everything -- nothing you can say will shock or surprise me.  Because I deal with incredibly personal and intimate life details, it is important that I hear the unedited facts.

I ask questions and lead the conversation during the interview.  I have developed a format that assists me with obtaining all of the important and relevant information in an efficient manner.  Occasionally, a client will try to move off of my format and tell their story, their way.  That tactic is rarely helpful and can cause us to begin discussing non-relevant information.  I understand that every portion of your story is incredibly important and significant to you, but you are consulting with me so that I can provide legal advice, which means that I need to focus on the parts of your story that are most relevant.



I ask a lot of questions, beginning usually with the basics like the date of marriage, the date of separation (if the parties are separated) and the occupations and educational background of the parties.  As we get into a rhythm, I notice clients visibly relax.  All they need to to do is answer my questions, and it is cathartic for them.  They only need to respond.  It is not like I expect them to know where to start and provide me with a long narrative, while I simply take notes without giving them direction.

Sometimes, a client will say: "why do you need to know that" or "that's not relevant."  I assure you, there is a reason behind every single question that I ask.  I am trying to get through the consultation as efficiently as possible.

Once I have the facts, I then explain the procedure: How does a divorce get filed?  Who determines child support? What are the Court procedures like?  How long will this take?

I go over all of the aspects of the legal procedure, referring back to the facts gleaned during the interview process.  As I explain the procedure, I review the documents in the consultation packet that I provide.



Throughout the process, I am writing down our strategy options as well as any “homework” the client needs to do.  I photocopy that list and provide it to the client at the end of the session.  That way, the client leaves my office with an exact understanding of the plan I recommend.

Interested in scheduling a consultation?  Please call our office.

Tuesday, February 14, 2012

Helpful Tip Tuesday

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


On-going divorce or custody litigation can become overwhelming and all-consuming. Remember to still take time for yourself, participate in your favorite hobbies, exercise, and visit with friends and family.

Friday, February 10, 2012

Contra Proferentem - yes, that so-called "boilerplate language" in your agreement is actually VERY SIGNIFICANT

Contra Proferentem is a Latin term which means “against the offeror.”  A long held standard of contract law holds that if a clause in a contract appears to be ambiguous, it should be interpreted against the interests of the person who insisted that the clause be included. 


This concept usually arises when a parties cannot agree on the interpretation of a provision of a contract.  Generally, a contract must stand on its own and in any later dispute, the court will not consider outside evidence, instead relying on the "four corners" of the contract.  However, If the court reviews a contract and finds a clause ambiguous (the potential to have more than one meaning), it can determine which party wanted the clause included.  Then, the clause would be interpreted in the light most favorable to the opposing party.


This contra proferentem doctrine would not apply when BOTH parties drafted the wording of the agreement.  To avoid having a provision later interpreted against one party, most attorneys include a provision in contracts that for purposes of later interpretation, BOTH parties drafted the contract.  


Sometimes, clients wonder why lawyers include so much so called "legalese" in documents  . . .  and why what appears to be simple, can go on for pages and pages.  The doctrine of contra proferentem is just one reason why the  extra language is necessary - and placed in the contract for your protection.



Thursday, February 09, 2012

Wait. The case is not over yet -- we need to divide the retirement accounts!

Your retirement account, along with your spouse's retirement account, are marital assets to be considered for division in your divorce.  Some people know this and accept it, while others insist that they earned the assets and that they will never share it with their spouse.  However, the law says otherwise.

First, retirement accounts are marital property, and will be considered in a division of assets in a divorce case.  You may think that you do not have to share your hard earned retirement savings with your spouse, but you would be mistaken.  Your spouse may angrily tell you that you will never get your hands on their retirement account, but the court will say otherwise.



Retirement accounts come in many forms: 401k, pensions, 403b, etc.  In a divorce situation, you should first identify all retirement accounts in either spouse's name.  For purposes of gathering information at this stage, you should understand that all retirement accounts in either spouse's name, even if they were started or earned before the marriage, will be considered as part of equitable distribution.  If you do not know what accounts exist or you cannot find the information, your attorney will be able to find the information for you in the discovery process.  However, doing the preliminary investigative work yourself may save you some attorney fees.

Retirement accounts are protected by federal law and, therefore, there are specific and detailed laws regarding withdrawals and other changes to these types of accounts.  When a retirement account must be divided between two spouses incident to a divorce, the mechanism used is a Qualified Domestic Relations Order, commonly called a QDRO (pronounced Quad-ro or Cu-dro). This order directs the administrator of the plan how to divide these assets without incurring penalties or taxes for early withdrawal.



When deciding how to divide retirement plans, consider the following:

1. Which spouse will be responsible for the drafting of the QDRO, and who will pay the fees for that document?

2. Do you even need a QDRO or is there a less expensive way to accomplish the division?  Usually for an IRA, you simply need to send a letter of instruction, along with the divorce decree, to the plan administrator.

3. What is the date of division?  In your divorce agreement, make sure that you agree, or a court orders, a specific date as of which the assets will be divided.

4. What happens to gains and losses?  Any type of investment account is dynamic and subject to the whims of the market.  Make sure your QDRO includes directions as to how both gains and losses will be calculated and divided between the parties.

For more general information on QDROs, check out the FAQ Section on the U.S. Department of Labor website. 

Wednesday, February 08, 2012

Come to New Jersey and I Will Support You

Much like the case of Love v. Love in Pennsylvania, (which I wrote about here), New Jersey Courts also addressed the issue of a spouse signing a Form I-864EZ Affidavit of Support in order to bring their spouse to American.

In Naik v. Naik, a couple came to NJ from India after an arranged marriage in which they met on the day of the wedding.  Husband moved to America and the couple did not see each other for fifteen months.  When Wife came to America, Husband signed the aforementioned Form I-864EZ, agreeing to support her.  They separated only three months later and in the ensuing divorce, Wife sought both alimony pendente lite (temporary) during the divorce and alimony once the marriage terminated.

The trial court granted the temporary alimony but denied alimony once the marriage ended.  Wife appealed and the Appellate Court concluded that the Form I-864EZ was enforceable in New Jersey Superior Court.

If you are separating and you sponsored your spouse's immigration, or vice versa, gather the paperwork now and be prepared to address the issues in your divorce.

Tuesday, February 07, 2012

Helpful Tip Tuesday

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


Understand both the best and worst case scenario in your case. Knowing the best outcome you can possibly get, as well as the worst, will help you be more cost effective and efficient as you make litigation decisions along the way.

Monday, February 06, 2012

My ex will have to pay my attorney's fees!!!

Under most circumstances, each party to a family court case will have to pay his or her own attorney's costs and fees. This is important to remember when you are making decisions throughout the litigation process.

However, when a person is found in contempt of a court order in family court, in addition to other sanctions available to the court, a judge may order a party found in contempt to pay the other party's attorney's fees.  The problem is that it is almost impossible to predict how a judge will respond to a request for attorney's fee.  



Different judges have vastly disparate opinions on how to facilitate attorney's fees awards.  What if one party hires a firm that assigns a partner, associate and paralegal to the case resulting in a legal fees invoice that could fund the purchase of a small country?  The other party may have put his or her faith in a more reasonably priced attorney whose legal fees end up being substantially lower.  Could the party who chose the less expensive lawyer end up being ordered by a judge to pay the other side's fees?  Would that party be responsible for the other party's choice of a pricier lawyer?  The answer, as with most legal matters, is:  it depends.

Courts have discretion to award legal fees, and one judge may exercise that discretion differently than another.  Because you could be required to pay the other party's legal fees and cost, the best way to protect yourself is the most obvious: read and follow the Court's Orders.  If you comply with the Court's Orders and you do not act in a malicious or harmful way toward the other party, then more than likely you will not be faced with an order to pay the other party's legal fees and costs.  

Friday, February 03, 2012

Need to look up someone's criminal history?

In Pennsylvania, with our new custody statute, courts must consider the criminal history of parents and members of the household.

You can find a person's criminal history information in several databases available to the public.  However, these databases may not be exhaustive and some convictions and arrests may not be available.  These do provide a good starting point:







Wednesday, February 01, 2012

Your Exit Plan



When “I do” becomes “I don’t want to anymore,” planning your exit from a marriage can save you headache and expense as you unwind your emotional and financial ties from your spouse.  Any plan should include the following:

1. Make sure that you are sure about ending the marriage and develop a support system.  Seek out counseling or therapy, consult with your minister, priest or rabbi, if appropriate, and if possible, have friends or family who will be there for you.

2. Know the income situation for both you and your spouse.  Gather pay stubs, tax returns, Forms W-2 showing yearly earnings and any other documents you can find regarding income.  Your attorney can help you decipher the information.  At this point in the proceedings you are gathering.



3. Figure out the debt: yours, mine and ours.  If you have no idea what you and your spouse owe, a great place to start is a credit report.  A credit report can be a road map to all of your debts.  You can obtain a limited version of a credit report at annualcreditreport.com.  If entries show up that are unfamiliar to you, you can always order and pay for a more detailed report.  Gather statements for all of the debts, including recent credit card statements, mortgage statements, tax bills and anything else indicating that either you or your spouse, or both of you together owe someone or something.  Again, your attorney will be able to assist you with determining how the debt will be treated in a divorce.  You are assembling the information so you have a clear picture of the liabilities.


 

4. What do you have?  In addition to getting a picture of your debts, you should also understand the assets.  Gather bank statements, investment statements, retirement account information, and any and all other documents you can get your hands on which indicate the value of your assets, your spouse’s assets and anything that you own jointly.

5. Safeguard your stuff.  Personal property, such as furniture, jewelry, heirlooms, knicknacks, keepsakes, clothing and artwork are an area of divorce that most courts just simply will not touch.  Many people begin a divorce action only to find out that their spouse destroyed or hid their personal property, whether or not it has actual monetary value.  Sometimes taking or disposing of photographs, mementos or other special items is a way to get revenge or simply get attention.  To protect yourself, you should safeguard anything that you cannot replace.

6. Find a good lawyer.  Your lawyer will sort through the information that you have gathered, and be able to obtain more on your behalf.  However, when you first consult with an attorney, the more data you can present, the more comprehensive advice you can receive.