Thursday, May 31, 2012

Love, loss, celebrating what once was and being thankful for the gifts

Lawyers are humans, too!

Does leaving your child at home alone constitute neglect?


In New Jersey, there are specific laws that control and outline procedure for neglect cases (see N.J.S.A. 9:6-8.21(c)(4)(b)). The statute defines an “abused or neglected child” as one “whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care.”


In Div. Of Youth & Family Servs. v. T.B., the mother of a four-year-old left her sleeping child at the house that she shared with her parents because she assumed that, her mother (the maternal grandmother) must be home because her car was in the driveway. She made this assumption based on the fact that Maternal Grandmother was always home on Sunday evenings. Maternal grandmother was not at home and the child wandered over to a neighbor’s house, and the neighbor called the police.






The Division of Youth and Family Services (“DYFS”) sent a caseworker to the house and the New Jersey Appellate Division affirmed DYFS’ finding of child neglect and approved placing Mother on the Child Abuse Registry. The Supreme Court reversed the Appellate Division holding that Mother’s negligent conduct did not rise to the level of gross negligence or recklessness. Here, Mother made a mistake when relying on past experience that Maternal Grandmother was always home on Sunday nights and was always home when her car was at the house. Mother’s failure to make sure that someone was in the home was not enough to be a failure to “exercise a minimum degree of care” as required by the statute. 


There is no clear line between committing negligence and gross negligence. The court is driven by the facts in each case when making that determination. The conduct of the parent and the circumstances surrounding the incident will be heavily scrutinized by the court. There are many times when it is acceptable to have a children at home alone, especially with two parents that are working. However, in divorce and custody disputes, it is safe to say that each parent’s behavior will be much more heavily scrutinized than if the parents were still together.


If you have questions or concerns about caring for your child or leaving your child alone, please contact an attorney.


Written by Allyson Lutley, law clerk at Law Offices of Linda A. Kerns, LLC.

Wednesday, May 30, 2012

Does the old or new law apply?

In Pennsylvania, we have a (relatively) new Child Custody Act which became effective on January 24, 2011.  For the full text of the Act, click here.

The new Child Custody Act included the factors a court must consider when deciding a relocation case (when one parent wants to move away with the children).  Previously, these factors were not included in the statute, but were outlined in case law.

Some relocation cases were filed prior to the Act becoming effective.  The trials, however, were not scheduled until afterwards.  Accordingly, the question for courts to answer:  If you filed for relocation prior to the new law become effective, but your trial was not scheduled until sometime later --- must the court apply the new law or the old law?

In a hot off the press case, the Pennsylvania Superior Court (our Appellate Court), held: "[W]here the evidentiary proceeding commences on or after the effective date of the Act, the provisions of the Act apply even if the request or petition was filed prior to the effective date."  C.R.F., III v. S.E.F., 2012 Pa. Super 108 (May 25, 2012).  Accordingly, for any hearings which commenced after January 24, 2011, the court must apply the factors in the new Act.

Tuesday, May 29, 2012

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


You should always retain the last seven (7) years worth of tax returns, in case the IRS decides to perform an audit. Likewise, tax returns are an invaluable source of information during both divorce and support litigation.

Thursday, May 24, 2012

Do you have shared custody?


You may think that you have shared custody of your children if you see them as often, or more often, than the other parent, but in New Jersey that does not give you shared custody in the eyes of the court. In New Jersey, the court will look at each parent’s responsibility for custodial functions to determine whether there is true shared custody.

In Morgan v. Morgan, the Property Settlement Agreement (“PSA”) gave the parents shared legal custody of the minor children and Wife was designated as the parent of primary residence. Husband later filed an application seeking a redetermination of custody based on a change in circumstances citing Wife’s impending move to Massachusetts with their children.

For removal cases, a parent’s custody status is crucial. If the parents have shared custody, the removal motion is reviewed as an application to change custodial status using the best interests of the child standard. If the parents do not have shared custody, the removal application is determined under the Baures standard and the parent who wants to relocate has to make a prima facie showing of (1) good faith for the move and (2) that the children will not suffer. “Prima facie” is a legal term that means essentially that the party can demonstrate the requirements at first glance. It does not mean they have to prove it immediately or that the other party will not be able to disprove it. 





The relocating party must also provide the court with a parenting time proposal for the non-moving parent. The Baures decision guides courts to allow parents to relocate with their children if the two above elements are satisfied, regardless of whether or not it changes the other parent’s parenting time.

To determine whether a best interests standard or the Baures standard should be used, the court must first determine whether the parents have shared custody. To determine whether or not the parents share custody, the court will look at each party’s responsibilities and duties to the children. These responsibilities and duties can include preparing meals, providing medical care, disciplining, etc. Simply seeing children as much as the other parent does not necessarily mean there is shared custody under New Jersey law which would force the other parent to satisfy the Baures standard in order to relocate with the children.

If you or the other parent are thinking of relocating with your children, you should contact an attorney.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.

Tuesday, May 22, 2012

My dad died 18 months BEFORE I was born - can I get Social Security Survivor benefits?

Yesterday, the Supreme Court of the United States unanimously (yes that does happen) denied Social Security survivor benefits to twins, conceived using their deceased father's biological sperm, and born 18 months after his death.  The Court determined that the children would be eligible for (federal) Social Security benefits only if they also would qualify to inherit from their father under state intestacy laws.

State intestacy laws define who inherits from a person's estate in the absence of a will.  Laws vary from state to state but, generally, a spouse inherits the estate.  If the deceased had children, the spouse usually shares with the children.  The estates of unmarried persons usually go to their parents and/or brothers and sisters.  Each state defines the line of succession.

Father lived in Florida at the time of his death - and under Florida law, children conceived AFTER the death of a parent are not eligible to inherit through intestate succession.    The Court decided that qualifying for benefits in this scenario hinged on the state law definition of "child."  Other states have other definitions so had this Father lived in a state that defines a "child" differently, they may have been eligible for the Social Security Survivor benefits.  Reproductive technology continues to advance more quickly than the law so sticky situations such as this one often wind their way through the court system.

You can read the full text of the opinion, Astrue v. Capato, here.

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 always difficult for children. Remember: “The thing that experts agree on is that although divorce is difficult and stressful for kids no matter what, the real harm to kids comes from being subjected to conflict between parents. The longer that lasts, and the more severe it is, the worse it is for your children. If you truly want to shield your children from the pain of divorce, recognize that the more you take the high road with your spouse, the better job you’ll do.”
 
- Emily Doskow

Friday, May 18, 2012

Mad Sad Glad

Have you heard of the Mad Sad Glad game?  I imagine different families play this game in different ways.  I love it because it is a way to ask the kids about their day, their feelings and what is important to them without seeming like you are interrogating.

Here is my version, great for the dinner table:

1.  Each person says one thing that made them Mad, Sad and Glad that day.


2.  You can go in order of age or around the table.


3.  Limit it to one thing per emotion -- one thing that made them Mad, one thing that made them Sad and one thing that made them Glad.


4.  If you get surprised -- sometimes kids can reveal something that you did not know was going on -- save the serious talk for later.  Otherwise, kids will be less inclined to open up the next time around.

That's it.  No winners, no losers -- just great conversation and a fantastic way to ask your kids open-ended questions.

Today, I got mad because . . . 

Today, I was sad because . . .

I am glad because . . . 



Thursday, May 17, 2012

You (or your spouse) has a business. How will that be divided in divorce?


In Pennsylvania and New Jersey, a business owned by either or both of the spouses will be considered property subject to equitable distribution in a divorce.  But how do we divide an asset you cannot simply split down the middle? Dividing a bank account can be relatively easy.  Here is the balance - you get half and I get half.  A business tends to be an entirely different story.  Unless the plan is to sell the business outright and simply divide the proceeds, the parties must determine the value to be assigned to the business.  If the business began prior to the marriage, then only the increase in value which accrued during the marriage will be subjected to valuation and division.  






When the spouses cannot agree on a value, which disagreement is unfortunately common during a divorce, either or both parties and sometimes the court can retain an individual, who is experienced in business valuations, to establish a number.  We also call this professional a forensic accountant or appraiser.  Notably, the evaluator ideally will be experienced in the particular field of assigning business valuations for purposes of divorce, which is an extremely specialized skill.  Although almost all business evaluators tend to be accountants and even certified public accountants, not every accountant is a business evaluator.  Additionally, valuing a business for a divorce involves a different analysis than other types of valuations, such as those for an estate, insurance quote or sale.  Accordingly, you should be careful about taking advice and opinions from those not familiar with the intricacies of valuations in the context of a divorce.


As with most property that must be valued in a divorce, the spouse who wants to retain the property in the divorce would like a lower value assigned to the asset, while the spouse who wants to be compensated for their marital share seeks a higher value.  Therefore, one party has the incentive to establish a low value, while the other party has the incentive to establish a high value.  By way of example, the spouse keeping the business may say it is worth $100,000.00 and in an equal division would pay the other spouse half, or $50,000.00.  However, the receiving spouse says, “No, wait a minute, I think it is worth $1,000,000.00 and you owe me $500,000.00.”  An experienced business evaluator should be able to set those individual interests and biases aside to come up with an objective analysis and a fair number.






Sometimes, the parties can agree on an evaluator and jointly retain the expert and live or die by his or her opinion.  However, sometimes with a significant amount of money a stake, each party his or her own expert, who then establishes competing evaluations and makes a case favorable to his or her client.  In extremely high conflict or technical cases, the court sometimes appoints an evaluator to provide objective analysis.  The cost of the evaluator is part of the divorce process and is typically shared by the parties, sometimes equally and other times in proportion to their respective assets or incomes.


Typically, your attorney can provide you with names of evaluators who are familiar to the local courts and also to the particular type of business that you need evaluated.  For example, some evaluators specialize in construction firms and know the intricacies and the specifics of that field.  Other evaluators may have a particular expertise in another area.  The more experienced the evaluator is, the more credible his or her findings will be.  Therefore, he or she will be more persuasive to the court.  Additionally, evaluators, like other experts, tend to develop reputations within the courts and legal community, which could add or take away from their opinions.  


A business evaluation can take some time, as it begins with the discovery phase when the evaluator obtains and reviews documents, including tax returns, financial statements, business plans and other written information regarding the overall structure of the business.  In many instances, the documents will not be enough to present a full and accurate picture, and the evaluator will visit the business and interview the owners and/or key employees.  Discuss with your financial, business and/or legal teams whether or not your attorney (business and/or divorce) should be present during these information gathering sessions.  Sometimes, more questions must be asked in the form of depositions, wherein the opposing attorney will examine certain individuals, under oath, to gain and clarify information.


The documents needed to perform a business evaluation, if printed out, can sometimes fill a conference room or even a building!  The various financial statements, ledgers, tax returns and supporting documents are usually gathered for the previous five (5) years.  Depending on the level of organization of the business, this information gathering phase can be absolutely excruciating.  Additionally, it is an additional burden on a business to gather and copy the requested information, both in terms of finances and manpower.   Many businesses require confidentiality agreements before releasing the information to protect information from their competitors or clients.  


Once all the documents and information are gathered, the evaluator begins examining the health of the business, the trends over the past few years, the income and expenses and the equity and/or debt.  Sometimes, the evaluator must adjust some of the figures to account for atypical events, a process called “normalization.”  In order to produce a fair and neutral value, sometimes the idiosyncrasies of a business must be neutralized.  For example, a small business owner may pay themselves a $150,000.00 salary for a job that would normally command a salary of only $100,000.00 in the open market.  In order to avoid having that inflated salary artificially depress the value of the business because the salary expenses are higher than they should be, the evaluator must then normalize that number.  


With the information, the evaluator then comes up with a ratio known as the capitalization rate.  The lower the capitalization rate is, the higher the value of the business.  Basically, the capitalization rate determines the current value of the expected returns of a business based on information from a particular time period.  Occasionally, any of these numbers can become an extreme point of contention between experts, which results in a vast difference in opinions on the value, that, if not resolved, will likely have to be sorted out by a judge.






In addition to the value of the business, an evaluator must determine whether an individual’s ownership interest in the business should be discounted.  For example, when someone owns 40% of a business, he or she may not own 40% of the actual value of the business, because his or her percentage share, for value purposes, must be discounted for his or her lack of overall control of the business.  If you, as an owner, cannot make decisions on your own, then your share may not be worth what you think. Additionally, some shares of a business are simply not marketable, especially in small, closely-held companies.  Therefore, even though that share of a business does have some value, it may be extremely discounted due to its non-marketability.  What good will it be to you to own 40% of a business that you cannot sell or turn into another type of asset?  Your value for purposes of divorce will be adjusted accordingly.  The rate of the discount, however, can be a bone of contention between warring spouses.  


A business evaluation, like any establishment of value, takes a snapshot in time and therefore poses some risks.  What if you value your business today, pay your spouse a handsome sum for his or her marital share and are later sued, lose your biggest client or go bankrupt, making your once profitable business worthless?  Now you own a failed business that you essentially bought from your spouse.  Of course, no one can predict every potential contingency.  However, a detail oriented and professional business evaluator may be able to point out red flags to help guide you in establishing a valuation that poses the least risk.


The business evaluation process will often be time-consuming and expensive.  If your divorce involves a business, whether it is your own, your spouse’s, or jointly owned with your spouse or another, you should consult with an attorney to develop a divorce plan and determine a ballpark figure for the value of the business, so that you can plan a cost-effective strategy for valuing that business for purposes of equitable distribution.  Careful planning will assist you in making cost-effective decisions.

Tuesday, May 15, 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.


Once you begin to contemplate divorce, you should start saving all of your financial statements, including bank, retirement and credit statements. The statements provide a valuable snapshot in history, and can become difficult and expensive to obtain in the future.

Thursday, May 10, 2012

You can tell a lot about a person about the company they keep

I hope that is true about me because I am proud of my friend, Michael Gill, Esquire.

I met Michael at the very beginning of my legal career -- he was a practicing attorney and I was a fresh out of law school judicial clerk for the Honorable William C. Todd, III in Atlantic and Cape May Counties, Superior Court of New Jersey.

I did not know what to expect from a clerkship - I had never been in court and had never even met a judge before my interview.  My brother, a lawyer and former judicial clerk, told me that the best thing to take away from a clerkship is how NOT to practice law.  You see so much working for a judge --- by reading the submissions of a broad array of lawyers, speaking with them on the telephone and in conferences and also watching them in court.  You see the best ---- and the worst that the bar has to offer.  As a judicial clerk, you see things pass your desk that are so sloppy and ill-conceived, you cannot believe a high school graduate, let along a practicing lawyer, would produce such incompetent work. And you vow to yourself -- I will never do this in my own practice.

I always noticed Michael's work -- as a freshly minted lawyer -- you cannot necessarily opine intelligently on every legal issues as it is all so new -- but you can at least recognize professionalism, courtesy and attention to detail.  Michael definitely demonstrated all of that.

But in reading his submissions, I also saw cogent, concise arguments and realistic positions, advocating for his client yet not turning unnecessary, petty matters into huge battles, as some overly-emotional divorce lawyers tend to do.

I remember in one letter brief he submitted to Judge Todd he started off with a quote (from a philosopher I believe but I do not really remember).  It set the tone, however, for his point and demonstrated a clever way to advocate for a client.  I have used that trick in my own practice.  I also noticed how he argued in court: organized and passionate -- but never shrill or overbearing.  And he was always pleasant and respectful, no matter the outcome.  I try to be the same way -- and I hope I put forth the same demeanor.

Michael was just profiled in "Super Lawyers" and the writer of the article really captured his essence.  You can read it here.

If you ever have a case "at the shore" in Atlantic or Cape May County -- Michael Gill should be your go to guy.  Of course, I also practice in that area of South Jersey - but not that often - and because I am so far away - I can confidently say that Michael is your best choice.  Michael is literally the only lawyer I have ever met, in all of my years of practice, that I can truly say is the one I would hire if I needed a divorce.  And that is the highest compliment that any lawyer can give.

Wednesday, May 09, 2012

Selling a house with your ex

When relationships break down -- whether the parties are married or not -- the house must often be sold.  However, selling a home takes work and cooperation -- something that two people in a failed relationship may not be able to do.  From deciding on a realtor and a price to appropriately cleaning and selling a home, each step is a negotiation and an opportunity for the couple to either put aside their differences and work together or let the discord make a painful process even worse - and more expensive.

Here is a video from HGTV about a couple who fell out of love and could not even cooperate enough to make the house even  presentable enough to get potential buyers through the front door You may see yourself and your own relationship in this video -- and be able to make your own situation a bit better.


Tuesday, May 08, 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.



Make the process of divorce a little easier by trying to keep it in perspective. Remember: "Grown-ups are worried that they’re going to ruin their children’s lives, but divorce is just a life experience and you learn from it."

- Evan Stern

Monday, May 07, 2012

Changes to Pennsylvania Rules and Child Support Guidelines

In Pennsylvania, when our Supreme Court amends our  Rules of Civil Procedure, including the Child Support Guidelines, the changes are posted on our Administrative Office of the Courts website (www.aopc.org).  For recent changes to rules related to Domestic Relations, click here.

Wednesday, May 02, 2012

I promise to support you - but don't hold me to it!

Until the New Jersey legislature enacted a statute effectively barring the enforcement of oral promises to provide support, New Jersey courts had routinely recognized and upheld palimony claims.  Previously in New Jersey, unmarried parties who had verbally promised to love and provide financial sustenance to each other could sue for support or property once the relationship had run its course.  Court had recognized these claims in the case of Kozlowski v. Kozlowski, 80 NJ 378 (1979).  However, effective January 18, 2010, New Jersey outlawed palimony claims.  The pertinent part of the statute states:


N.J. S.A. 25:1-5(h) provides:  
[N]o action shall be brought upon any of the following agreements or 
promises, unless the agreement or promise, upon which such action shall 
be brought or some memorandum or note thereof, shall be in writing, 
and signed by the party to be charged therewith, or by some other person 
thereunto by him lawfully authorized: 
.  .  .   .
(h)  A promise by one party to a non-marital personal relationship to 
provide support or other consideration for the other party, either during 
the course of such relationship or after its termination.  For the purposes 
of this subsection, no such written promise is binding unless it was made 
with the independent advice of counsel for both parties.





Recently, in Cape May County, New Jersey, a couple broke up after living together for approximately eleven years.  During their relationship, they had essentially acted as husband and wife and the woman performed traditional domestic duties, such as cleaning, cooking and housekeeping.  The man had purchased an engagement ring for her.  The woman filed a palimony claim seeking support on July 1, 2011.  However, the above referenced statute barring such claims had already been in effect for eighteen months.  In this case, although the relationship had begun before the statute was enacted, once the law passed, the parties failed to document their promises to each other in writing.  Accordingly, the court dismissed the woman's claim.

The opinion, written by Judge Rauh, can be found on the New Jersey Judiciary website, but only for a limited time.  The name of the case is Sharon Cavalli v. Charles Arena, Docket Number FM-05-61-12.  So, in New Jersey, unless your girlfriend or boyfriend puts their financial promises in writing, pursuant to the statute, do not expect to be able to enforce them.


Tuesday, May 01, 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.


The process of divorce is often long and overwhelming. Remember: “Divorce is one of the most stressful life events anyone goes through. Only the loss of a loved one and moving are even in its class, difficulty-wise and divorcing generally involves both of those as well. Even when you are the one initiating the divorce, the enormous changes that result are bound to throw you off and leave you feeling, at the very least, a bit lost.”
 
- Emily Doskow