Saturday, April 28, 2012

Paternity test of your 25 year old son?

Last Wednesday, attorneys for a father who believes his 25 year old son is not his biological son, but was fathered by his former brother-in-law, argued before the Supreme Court of New Jersey as to whether he can compel a paternity test of his now adult son.  The father wants to pursue a claim against the former brother-in-law for support reimbursement.

According to the appellate court opinion, the father, Richard, was married to the child's mother, Diane.  They had three children.  When Diane filed for divorce in 2006, after approximately 27 years of marriage, Richard began to suspect that he was not the biological father of their son, Mark.  He surreptitiously obtained a DNA sample from Mark and performed a paternity test.  The results confirmed his belief that he was not Mark's father.  He then received information that the child had been fathered by his former brother-in-law.  He then filed a third party complaint against the brother-in-law, asking for reimbursement for all support paid on the child's behalf, since birth, as well as compensatory damages and counsel fees. Richard sought a court order seeking the court to compel an official paternity test.

After much litigation, the trial court eventually denied to order a paternity test and the appellate court followed suit.  Richard now asks the New Jersey Supreme Court to overturn those rulings.

According to the opinion, the litigation destroyed Richard's relationship with Mark, who testified that he is not ready to undergo a paternity test.  Unfortunately, Mark became aware of the paternity issue at the age of twenty, a devastating turn of events. The entire New Jersey opinion, laying out the sordid story, can be found here.

Friday, April 27, 2012

In this case, COLA is not a drink…

When parties decide to divorce, often the first concern is how their assets and debts will be divided.  Whether the process is amicable or contentious, the parties, along with their attorneys, usually try to obtain a result that is equitable and fair for both individuals.  In reaching their decision, it is often easy for individuals, including attorneys, to overlook potential changes that may occur in the future.  That is exactly what happened in MacDougall v. MacDougall, a recent Pennsylvania appellate case.

In MacDougall, the particular asset at issue was Husband’s military pension.  In general, all assets obtained during the marriage, up until the date of separation, are considered marital property, and, therefore, are divisible between the parties upon divorce.  This general rule also applies to retirement accounts and pensions.  With this understanding, the parties agreed that upon receiving the pension at his retirement, Husband would pay a portion of the funds on a monthly basis to Wife. 

When the pension went into payment upon Husband’s retirement, Husband began paying Wife a portion of the monthly benefit based on the value of the pension that was present at the date of separation.  However, Wife believed that she should also receive the Cost of Living Adjustments (“COLA”) that accrued after the date of separation.  Thus, the parties went to court.  Notably, the parties could have opted for a Qualified Domestic Relations Order, which would have addressed the specifics, such as the COLA.  Additionally, they could have included more detail in their divorce agreement.  Unfortunately, the ambiguity resulted in costly litigation.

There are two general rules for whether Pennsylvania courts will demand that the pension-holder provide the non-pension holder spouse with any increases or decreases in value of a retirement asset that occur after the date of separation.  If the increase or decrease in value is to due to the actions of the pension holder, then the court will determine that the change in value is not marital property.  Therefore, the non-pension holder spouse should not receive a portion of that change in value.  For example, if the pension holder received promotions after the date of separation, which caused an increase in value to his or her pension, then he or she would not have to provide the ex-spouse with a portion.  On the other hand, if the increase or decrease in value of the pension is not related to or incident to the actions of the pension holder, then the courts will find that the ex-spouse should receive a portion of those increases. 

In the MacDougall case, the courts specifically examine COLAs to determine whether the court believed that the increase in value related to COLAs is due to the actions of the pension holder.  The court held that COLAs are not related to the actions of the pension holder.  Therefore, Husband should have included the increased value in his calculations when paying Wife.

In short, it is extremely difficult to anticipate future events, especially in relation to retirement benefits.  Therefore, you should consult with an attorney to determine the best way to divide any retirement assets so that the end result anticipates likely future events and remains fair and equitable.

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

Tuesday, April 24, 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.

Sometimes change is inevitable and for the best. Remember: “A society’s apprehensiveness about divorce is an expression of its fear of change and of its resulting desire that personality remain unvarying.”

- Elsie Clew Parsons

Wednesday, April 18, 2012

Bernie Madoff fallout continues

Some divorcing spouses who owned investments controlled by Bernie Madoff that collapsed once the record breaking Ponzi scheme came to light experienced a second injury: the sudden realization that their divorce settlement was worthless.

Take the case of Steven Simkin v. Laura Blank, New York residents, formerly married for 30 years.  As part of their separation and divorce, negotiated from 2002 until 2006, Husband agreed to pay Wife $6,250,000 plus an apartment, a car, personal items and other accounts.  Husband received a home, cars, personal items, his retirement accounts, less $368,000 to equalize his retirement accounts with Wife and his investment accounts.  One of Husband's investment accounts was maintained by Bernie L. Madoff Investment Securities which the parties believed was worth $5.4 million in 2004.

In 2008, Madoff's Ponzi scheme collapsed and Husband realized his Madoff account had no value.  He also realized he had given up money, an apartment and other accounts to Wife in exchange for this Madoff account.  Husband sued Wife, claiming that the original settlement agreement was based on a mistake (the value of the Madoff account) and that Wife was unjustly enriched.  Unsurprisingly, Wife opposed Husband's suit, apparently satisfied that things were as they should be.

The New York trial court agreed with Wife.  Husband appealed.  The Appellate Court agreed with Husband.  Wife appealed.  New York's highest Court took the case and agreed with Wife.  Thus, their agreement stands.  You can read the full opinion here.

The Court recognized that it is not uncommon for an asset to shift in value --- sometimes after a divorce it can be worth much more or much less than the amount it was valued in divorce.  I can think of examples in my own practice.  In one case, a husband wanted to keep the shore house and "bought out" wife's share.  Soon after the divorce, the shore real estate market took a nose dive, and husband ended up selling the house for much less than it had been valued in the divorce.  In another case, one spouse bought out the other's interest in a business, only to see the business value greatly increase after the divorce.

Divorce takes a snapshot of a moment in time and values and divides assets (and debts) as of a certain day.  Those values can change, days, months or even years after a divorce.  In the past few years, we have seen the value of investments, real estate and even gold, rapidly change.

Divorcing spouses can learn a lesson from the Madoff cases, even if you do not have millions upon millions of dollars to divide.  Be careful about how you value assets.  With investments, if you have 100 shares of XYZ stock worth $100 per share for a total value of $1,000, you may want to consider giving your spouse half of the shares, rather than the monetary value of half that day ($500).  That way you both take the risk, and the reward.  Unfortunately, no uniform rule exists as to what would be the best course of action.  Each case must be considered carefully and individually.

In the meantime, Bernie Madoff sits in jail until the end of his life with the weight of his Ponzi scheme, and all of the lives he affected, weighing him down.

Tuesday, April 17, 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.

Divorce is never easy. Remember: “For a couple with young children, divorce seldom comes as a ‘solution’ to stress, only as a way to end one form of pain and accept another.”
- Fred Rodgers

Friday, April 13, 2012

I want to change my child's last name - but the other parent will not agree

After a separation or divorce, one parent may want to change the child's surname.  For example, a child may have been given his father's last name, but after a divorce, if the father is not as involved in the child's life, the mother may want to give the child her last name.

In Pennsylvania child name change cases, the person who wants to change the name of a child must show the court why the name change would be in the child's best interest and give specific reasons.  If the other parent contests the name change, the court must evaluate all of the relevant factual circumstances.  Generally, the court must consider the child's physical, intellectual, moral and spiritual well-being, bonds between parent and child, the respect or social stigma which may exist in the community regarding a particular name, and the child's understanding of the name change, if he or she is of sufficient age to understand the rationale.

Recently, the Common Pleas Court of Montgomery County, Pennsylvania directed that a child's last name be changed to that of his mother, who has sole legal and physical custody.  In its opinion, the court gave great weight to the fact that the child really does not know his father, as he was deported and there is no meaningful contact.  Additionally, the child has severe cognitive disabilities making contact with his father even less likely. The father protested the name change because, with very little prospect of having a relationship with the child, having the same last name is their only tie.

The trial court granted the change of name and the father appealed to the Superior Court of Pennsylvania.  The appeal is pending.  The name of the case is In Re: A.A.H.S., No. 2011-15262.

Pennsylvania law provides the trial court with discretion regarding contested name changes of a child.  Each case will be specific to the facts and circumstances of a particular family.  The litigation can be extremely expensive and time consuming.  If you are considering a name change for a minor, which you expect the other parent to oppose, consult with an experienced attorney to analyze your case.

Baby His Last Name My Last Name

Wednesday, April 11, 2012

Hot off the press!

Today, the Superior Court of Pennsylvania affirmed a trial court order from Chester County, Pennsylvania wherein a Wife was awarded the frozen pre-embryoes created from the Wife's eggs and the Husband's sperm.

In this case, Wife's doctors advised her that she is unable to conceive without in vitro fertilization.  Husband and Wife have no children together and Wife, now 44, wishes to be able to have children.  Husband has since had a child with another woman and would like to have more biological children with that woman.  The parties preserved thirteen (13) pre-embryoes.  As part of the divorce, Husband sought to have them destroyed while Wife asked that they be implanted.

You can read the complete opinion here.

Tuesday, April 10, 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.

Do you need a better understanding of your social security benefits and how to maximize them? Try this site: The site charges a nominal fee for the calculation.

Tuesday, April 03, 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.

Need to order a transcript of your IRS account? You can do so by filling out a simple form and sending it to the IRS. Get the form here:

Monday, April 02, 2012

In New Jersey, can you require the custody evaluator to record all of the interviews?

The Committee on Opinions in New Jersey approve certain court opinions for publication, which can then be cited for their precedential value (Precedential value means that other courts can rely on these opinions when making decisions).  While many Superior and Supreme Court opinions are approved for publication, trial court opinions rarely receive this honor.  However, recently, the New Jersey Committee on Opinions approved a trial court opinion addressing whether a party can require that all interviews conducted by a custody evaluator can be recorded.  This decision gives the opinion precedential value for other trial courts until it is overturned by a higher court.

In this case, the parents separated after approximately twelve (12) years of marriage, at which time they had three (3) children.  In anticipation of a custody evaluation and a disputed custody battle, Father requested that all interviews with the custody expert be audio recorded.  Mother objected.  Father argued that it was his right to have all interviews in the case audio recorded so that he would know what the children and Mother said to the evaluator.  After analyzing and reviewing the law both in New Jersey and other states, the court concluded the following:

1. A party to the case (a parent) can record his or her own interview held during a custody evaluation.

2. A custody evaluator or a court appointed psychologist cannot be forced by one parent to record the interviews of the other spouse or the children, absent court order.

3. If children’s interviews are recorded with the permission of both parents, then that expert will not be permitted to simply release those recordings to either attorney or the parents without the specific and express permission of the court.

4. If recordings are made with the parties’ agreement and with the court’s permission are distributed to the parents and their counsel, it must be done subject to a protective order so that those recordings cannot be discussed with the children or other parties.

The trial judge seemed extremely concerned about the possibility that the recording process would have a chilling effect on the child’s interview.  If the children know or have reason to suspect that their parents will listen to the interview, they would likely be less than candid.  Additionally, even the most careful parents may confront a child, either directly or indirectly, with the contents of the child’s interview.  This would be unhealthy for the child and increase anxiety and concern in an already contentious process.  Although it is important to assure the accuracy of the interviews in a custody evaluation and have at least some level of transparency in the process, the need to protect the children outweighs the harm that could come about if the interviews were recorded.

You can read the full opinion here.