Friday, August 31, 2012

Small space play

Sometimes, a divorce or separation means downsizing your living space --- and that means less space for the kids to play.  Apartment Therapy has a great post on ideas from around the web for making the most of small spaces for your children to play.  Ideas include a doorway puppet theatre, a kids clubhouse using your dining table and roller blinds,  and a rollaway art table.

Tuesday, August 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.

Back to School Time

Teachers, books, school supplies, bus and class schedules, activities and sports . . . Help your children approach this school year eager to learn and participate fully in their educational experience. Children of divorced and separated parents deal with issues other than the new school year, and you can help your children adjust by following some or all of these tips:

(1) Learn the school's website and system for notifying parents. If possible, ask that all notices be sent to you and the other parent -- so that you keep on top of all that is happening.

(2) Establish routines with the other parent --- try to make sure the children have a consistent bedtime and routine at both houses. This should help them adjust more easily to going back and forth.

(3) To the extent that you can afford it, have duplicates of their essentials --- so that they do not have to carry as much back and forth between parents' houses.

(4) Get in touch with your children's teachers at the beginning of the year and establish a rapport.

(5) Cooperate with the other parent and your children with regard to their homework, long term projects and general study schedule.

Wednesday, August 22, 2012

Who gets the debt?

Click here for a great article by Sally Herigstad regarding credit cards, death and divorce.  I am quoted!

Tuesday, August 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.

Button up all of the details!
Don't forget to tie up loose ends.  If you are getting divorced and moving -- change your voter registration.  This may be something you only need once or twice a year - but do not wait until the day before election day!  Check all of your beneficiary designations - bank accounts, insurance policies and investments accounts.  Have you removed your ex-spouse's name?  Did you change your name?  Make sure to follow through - notify the Post Office, Social Security, your bank and all affected agencies.  Also, in case of a name change, get new checks printed and change the information on your business cards.  Some accounts may be in your spouse's name - but you do not think about them because the bills only come once or twice per year -- such as homeowners insurance, tax bills, magazine subscriptions and yearly fees for certain clubs and associations.  

Clean up all of these items now so that you can start your post-divorce life with a clean slate.

A daughter divorces her parents

In a new trial court opinion from Ocean County, New Jersey, a teenager asked to be emancipated from her parents --- and removed from their sphere of influence so that she can make her own decisions and fund her own college education without interference from them.  Her father objected but the court granted her emancipation.  Read the full opinion here.

Sunday, August 19, 2012

My construction team goes prime time!

The amazing construction team that gutted and renovated my office, Phoenix Construction, is hitting prime time on the NBC show: George to the Rescue.  See an article on the project here.

Tuesday, August 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.

Preparing for Philadelphia Family Court

Any type of court proceeding can be anxiety producing.   Knowing what to expect may decrease some of your nervousness and help you to prepare.

1.  Philadelphia requires that you present your court notice to enter the building.  Have a copy ready to show to security.

2.  You and your possessions must pass through a security checkpoint, which includes a metal detector.  There is often a long line.  Make sure you arrive early enough to get through security and to your proceeding on time.

3.  There are three different entrances to Philadelphia Family Court.  Look on your notice for the address of the entrance you are to use.

4.  While your notice may list a specific time, proceedings schedule before a judge are often listed at the same time as many other cases.  Therefore, you could be waiting a long time for your case to be called.  I have had cases scheduled for 9:00 am that have not been heard until late afternoon.  While that kind of a delay does not always happen, you should always be prepared to stay the entire day.

5.  Because you could be waiting for quite some time, bring reading material or other activities to keep you busy and to keep your mind off of the wait.

6.  If you plan to present any type of documentary evidence to the court, you will usually need between three (3) and five (5) copies of each document.  Not all documents are admissible as evidence.

7.  Many cases settle, even at the courthouse.  Sometimes, litigants can feel rushed about considering the terms of the settlement.  A settlement can be preferable than risking that the decision from the judge could not be as favorable.  When you go to court, have an idea in mind of your bottomline so that if settlement discussions begin, you will be prepared to negotiate.

8.  Even though you could be waiting a long time for your case to be called, your actual time in the courtroom could be brief and this is frustrating to many people.  Be ready to present the most important aspects of your case in the limited time that you may have.

9.  In court, if you are required to speak, always be loud and clear.  Most proceedings are "on the record" which means there is a court reporter transcribing the proceedings or the proceedings are being recorded.

10.  You may be in the same waiting room as the opposing party and opposing counsel.  This can be an emotionally charged time.  Be prepared to be civil.  If you have material with you to read or otherwise keep you busy, you may be able to decrease your anxiety.

11.  At some proceedings you are required to bring your child.  Read your notice carefully.  Children, however, are not permitted in the courtroom during the proceeding.  You may leave your children in the court nursery or bring someone with you to sit with your child.  However, any guests may need a subpoena or other paperwork to enter the courthouse.

12.  Many judges and masters do not allow witness testimony at certain proceedings.  Your witnesses may need a subpoena to enter the building.

Good luck!

Thursday, August 09, 2012

Do we consider post-complaint income for Alimony Calculation in New Jersey?

In New Jersey, deciding when to cap income when determining alimony is left up to the courts and is decided on a case-by-case basis. In a 2011 New Jersey case, Dudas v. Dudas, 423 N.J.Super. 69, Wife filed a Complaint for Divorce after twenty-six years of marriage. After Wife filed the Complaint, Husband’s income increased drastically by more than $12,000.00 a year–about a 15% increase over the previous year. Wife argued that Husband’s post-Complaint income should be considered in the alimony analysis; whereas, Husband argued that alimony should be based only on the income he earned prior to the filing of the Complaint.

Under the alimony statute in New Jersey, N.J.S.A. 2A:34-23(b), judges are instructed to consider numerous factors when determining alimony. In the above case, the judge looked at the following factors:

the actual need and ability to pay;
the standard of living established during the marriage;
the earning capacities of the parties; and 
the marginal cost estimation and momentum of the marriage

“Marginal cost estimation” focuses on the extra cost of supporting an additional person in a family unit. “Momentum of marriage” recognizes that a spouse who maintains the home while the other party’s career advances should share in the rewards of their combined efforts.

When one household separates into two, there is less money for both houses; therefore, additional funds earned post-Complaint are relevant for determining alimony because those earnings are a viable source to help both parties achieve the financial lifestyle they had while they were married. Marginal cost estimation “does not mean that the supporting spouse has to finance the lifestyle of a supported spouse at a level substantially greater then the marital lifestyle.” Now that Husband is earning more money, there is, naturally, more money available to bring the parties closer to marital status quo.

With respect to “momentum of the marriage,” the judge held that it was a relevant factor, because it recognizes that a spouse who maintains the home while the other spouse’s career advances should share in the rewards of their combined efforts. Courts will “not sanction an agreement which prohibits a woman devoted to her husband from enjoying the fruits of her labor just as they are to be reaped.” It is unfair and inequitable to ignore one spouse’s lifetime contribution towards the other spouse’s present-day earning potential.

The judge said that the Legislature of New Jersey could not have intended for an alimony analysis to be capped at the level of income earned during the marriage. Further, the judge reasoned that a consideration of the earning capacities of the parties “inherently includes consideration of one’s earning potential even beyond that actually earned during the marriage.”

Therefore, in New Jersey, an alimony award may be based on income earned after the date that a divorce complaint is filed; however, it will depend on the facts and circumstances of the specific case. If you have questions about your right to alimony, your potential alimony obligation or alimony payments you may already be paying or receiving, you should contact an attorney.

Written by Allyson Lutley, law clerk at The Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire.

Wednesday, August 08, 2012

Court orders New Jersey Father to return child to Mother in Turkey

Hot off the press, the Superior Court of New Jersey, Appellate division, just decided a case, affirming a trial court order that directed the Father, a New Jersey resident, to turn over his nine year old daughter to Mother who lives in Turkey.  When the child was five, Father had taken the child from Turkey to the United States.  Mother stated that this was against her wishes while Father claims Mother gave him permission.

The litigation went on for four years, during which time the child became well settled in New Jersey and only had video and telephone contact with her Mother.  The court concluded that Father's removal of the child from Turkey was wrongful, thus ordering her return.  You can read the full opinion here:  F.H.U. v A.C.U. The opinion provides an excellent analysis of the Hague Convention.

Tuesday, August 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.

Meetings with the Ex - Sometimes, divorcing and separating couples can have productive conversations and work out some of their issues without the need for court or lawyers. If this is possible in your relationship, make sure you always meet in a neutral place - like a coffee shop, restaurant or park. The public territory should keep the meeting professional and emotions in check. Do not be afraid to write everything down --- sometimes people say one thing and mean another -- so take notes so that you both are on the same page.

Thursday, August 02, 2012

Think about the future when you make an agreement today.

When you make an agreement, understand that you must take future circumstances into account if you could reasonably contemplate or foresee the circumstances at the time when you make the agreement.  For example, if you agree to pay your spouse alimony, and decide that the alimony will be modifiable based on a change in circumstances, and you have another child or get married soon after entering into the agreement, those circumstances would have been foreseeable if known at the time you made the agreement.  Therefore, it is unlikely that the court would modify your alimony on the basis that your marriage or new child changed your circumstances, because a court would conclude that you should have taken them into account during your negotiating because you knew these things would occur.  On the other hand, if you agree to modifiable alimony, and you unexpectedly become ill or disabled and unable to work, those circumstances would not have been foreseeable and it would be likely that the court would modify your previous agreement.

When negotiating any type of an agreement in a divorce, the parties often become fatigued and frustrated, overwhelmed by the process and the cost, both financial and emotional.  In order to “just end” the matter, parties often agree to terms that, had they had more time to consider, they may have realized were unfavorable.  However, in an effort to stop the suffering that often accompanies divorce, parties sometimes agree to less than desirable settlement terms hoping things will just work out for the best.

Recently, in New Jersey, in Moriello v. Moriello, Docket A-4044-1oT4, a former husband and wife went back to court in order to attempt to amend their Property Settlement Agreement.  When they were divorced in 2006, they owned a 16 unit apartment building and a single family home.  At the time, they apparently decided not to sell the buildings or refinance them into one person’s name.  Most likely, it was not feasible to sell the buildings and neither party could afford to own them and buy the other party out.  Accordingly, they decided to become joint owners and divide the income from the rental units.  In essence, although divorcing, they remained business partners.  Apparently, in order to avoid dealing too much with each other, they named their son as property manager and paid him a commission for the rentals.  In their written agreement, they also decided that if their son was ever unable or unwilling to act as property manager, they would then agree upon a replacement manager.  If they could not agree, they would then apply to the court to appoint a manager.  

Shortly after they divorced, their son apparently decided he did not want to remain as manager of the property.  Ex-husband and wife then experienced a great amount of discord regarding the properties and ex-wife claimed that the ex-husband verbally abused her, causing her stress and turmoil.  Because she felt so overwhelmed by his treatment of her, she filed a motion with the court asking that the real estate be partitioned.  In effect, she asked the court to force her ex-husband to buy her interest in the property or, if he was unwilling or unable to do so, that they would sell the properties and simply divide the proceeds.  The ex-husband opposed wife’s motion and asked that he be appointed property manager. 

The trial court denied both of the motions, finding that the circumstances that had occurred were foreseeable at the time that the parties entered into their Property Settlement Agreement.  In fact, they had specifically written in a plan as to what would happen if their son became unwilling or unable to act as property manager.  According to the agreement, they would agree upon another manager or apply to the court to appoint a replacement.  Nowhere in the Property Settlement Agreement did they decide to partition the properties or appoint themselves as property manager. 

All agreements require some give and take and some compromise.  Rarely are both parties truly happy with all of the terms of an agreement.  However, you should think very carefully before signing your name. Some terms are simply unacceptable no matter what the negotiation process has been like.  It may end the pain for now, but it could double your trouble in the future.

Wednesday, August 01, 2012

What Pennsylvania's Appellate Court Says About Relocating with your Children

As I have written about previously, statutes and case law guide a separated parent's ability to relocate with their child.  In Pennsylvania, we have a new law, enacted in early 2011 that outlines specific requirements for what information parents who want to move must provide to the other parent -- and how that other parent can object.

Hot off the press on July 31, 2012, the Superior Court of Pennsylvania issued an opinion on a custody relocation case.  You can read the complete opinion here.

In a new Pennsylvania case, a Mother wants to relocate to Sweden with the children.

A mom, originally from Sweden, met and  married a United States citizen in New Jersey.  However, Mother was diagnosed with ulcerative colitis and underwent several surgeries.  She then returned to Sweden for more medical care, bringing the children with her.  Father visited her in Sweden and advised he wanted a divorce.  Over Mother's objection and request for counseling, he filed for divorce in Montgomery County, Pennsylvania, where he resided.  Significant litigation followed and, eventually, a trial on the relocation issues.  The trial court ordered that Mother and Father would share custody if the parents both lived in Montgomery County, Pennsylvania.  If Mother chose to live in Sweden, Father would have primary custody.

The appellate court overturned the ruling and directed that the trial court properly consider all of the factors under the statute.  The opinion outlines the factors in the statute and therefore provides a convenient reference for people considering relocation.

Relocation cases tend to be heart wrenching as one parent will generally have the children during the school year and the other parent will have the children during the summer --- not an ideal situation for quality child/parent relationships.

When parents live far apart - generally one parent will have the children during the school year.

If live in Pennsylvania and you are considering relocating with your children, consult with an attorney so that you understand the law and requirements under the statute.