Thursday, June 27, 2013

Why is alimony sometimes perma-mony? featured a great article today on the controversy surrounding alimony awards: Is This the End of Alimony?

Monday, June 24, 2013

How to know if you fit the definition of a “victim of domestic violence” in New Jersey

New Jersey’s Prevention of Domestic Violence Act allows victims of domestic violence to obtain a restraining order against his or her abuser. But first, a plaintiff must actually prove that he or she is a “victim of domestic violence” by preponderance of the evidence. (Preponderance of evidence is a standard in which the plaintiff must provide just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. Specifically for domestic violence, the plaintiff must provide just enough evidence to make it more likely than not that he or she is a victim of domestic violence.)

So, one might ask, what is New Jersey’s definition of “victim of domestic violence?” In 1994, the New Jersey Legislature amended the definition of “victim of domestic violence” to mean, “any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.” (Prior to 1994, it meant “a person eighteen year of age or older, or emancipated minor, who is subject to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.”)

In 2012, in a case called S.K . v. J.H., the Superior Court of New Jersey was confronted with the problem of how to define a “dating relationship” for the purposes of determining if one is a “victim of domestic violence.”  In S.K. v. J.H., the man and woman went on one date and in the same night, the man violently attacked the woman. The woman brought suit under the Prevention of Domestic Violence Act, and argued that she was a  “victim of domestic violence.” She won at the trial level. The man appealed to the Superior Court and argued that the trial court erred because one date is not enough to establish a “dating relationship.”

The Superior Court decided that, indeed, one date does not establish a “dating relationship.” The Court noted that the New Jersey Legislature did not provide further clarification on what constitutes a “dating relationship” so it can be assumed that they intended these word to mean what “dating relationship” ordinarily connote. Further, unless the Legislature says otherwise, it can be assumed that it intended “dating relationship” to have a similar meaning to how it is defined in other states.

The Court use a six-factor test that was used by a New Jersey trial judge in a 2003 case. Andrews v. Rutherford, 363 N.J. Super. 252, 253 (Ch. Div. 2003). The Court decided to embrace these factors (called the Andrews factors) because they are consistent with common themes developed by the great majority of other states on this issue. The six-factors are as follows:

1. Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?

2. How long did the alleged dating activities continue prior to the acts of domestic violence alleged?

3. What were the nature and frequency of the parties’ interactions?

4. What were the parties’ ongoing expectations with respect to the relationship, either individually or jointly?

5. Did the parties demonstrate an affirmation of their relationship before others by statement or conduct?

6. Are there any other reasons unique to the case that support or detract from a finding that a “dating relationship” exists?

The fact that the parties in S.K . v. J.H. went out on only one date fails almost all of the Andrews factors. The Superior Court noted that the Legislature undoubtedly meant something beyond a single date and unless the Legislature provides a clearer understanding of what it meant by “dating relationship,” the Andrews factors will be a sufficient test for the future.

Women and men in New Jersey who want to bring suit under the Prevention of Domestic Violence Act must know these factors, since they will be required to prove by preponderance of evidence that they have been in a “dating relationship” and are therefore a “victim of domestic violence.” 

This blog post authored by Lisa Haggerty, Temple Law student and edited by Linda A. Kerns, Esquire.

Sunday, June 16, 2013

Happy Father's Day!

A great article on the importance of being there....

Happy Father's Day!

Thursday, June 13, 2013

How do courts determine if one parent should get primary custody over the other parent?

In Pennsylvania, it takes an analysis of sixteen separate factors to determine the outcome of a custody dispute. This means that a mother cannot walk into court, tell a judge she is breast-feeding her child, and expect that she will be granted primary physical custody on that alone. This, however, is exactly what one Pennsylvania mother tried to do. J.R.M. v. J.E.A., 2011 PA Super 263. (Courts tend to use initials to protect the identity of the parties in cases involving young children.)

In the case of J.R.M. v. J.E.A, J.R.M. (“Father”) and J.E.A. (“Mother”) conceived a child after two months of dating. By the time the child was born, Father and Mother were no longer together. Mother filed a complaint for custody, seeking shared legal custody and primary physical custody. Days later, Father also filed a complaint for custody seeking shared legal custody and primary physical custody. (Legal custody is essentially decision-making power while physical custody is where the child resides.)

The parties were heard before a trial court in March 2011 which resulted in an order for shared legal custody with primary physical custody to Mother and partial custody with restrictions to the Father. The court had one reason for granting primary physical custody to Mother: she was breast-feeding. It ordered that once Mother was no longer breast-feeding, Father would get more time but still, his time had certain restrictions, for example, he was not allowed to keep the child overnight.

Father appealed this order and argued that the trial court did not engage in the proper fact-finding and factors analysis needed to determine which custody arrangement would be in the best interest of the child. The trial court also did not engage in the proper fact-finding needed when it decided Father should have partial custody with restrictions.

The PA Superior Court, our appellate court, agreed with these arguments brought by Father. To determine custody, courts must consider which custody arrangement would be in the best interest of the child. The PA custody statute lists sixteen different factors that judges must consider in light of what would be in the best interest of the child. These factors are as follows:

1) Which party is more likely to encourage contact between the child and the other party.
2) Present and past abuse committed by a party or a member of the party’s household.
3) Parental duties performed by each party on behalf of the child.
4) Need for stability in child’s education, family life and community life.
5) Availability of extended family.
6) Child’s sibling relationships.
7) Well-reasoned preference of the child, based on child’s maturity and judgment.
8) Attempts of one parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary.
9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for child’s emotional needs.
10) Which party is more likely to attend to the daily physical, emotional, development, education and special needs of the child.
11) Proximity of residences of the parties.
12) Each party’s availability to care for the child or ability to make child-care arrangements.
13) Willingness of parties to cooperate with one another.
14) History of drug or alcohol abuse of a party or member of party’s household.
15) Mental and physical condition of a party or member of party’s household.
16) Any other relevant factors.

The Superior Court determined that the trial court almost exclusively based its decision on the fact that Mother is breast-feeding, therefore, it failed to consider the other factors. The case was, therefore, sent back down to the trial court.

The Superior Court also agreed with Father that the restrictions placed upon him were without merit. An award for partial custody will only impose restrictions if either the parties have agreed to the restriction or if the party requesting a restriction shows that without it, there will be a detrimental impact on the child. The trial court did not engage in any fact-finding that would suggest Father would have any detrimental impact on the child, therefore, this part of the case went back to the trial court as well.

Parents must know when they walk into a courtroom for a custody matter that there is never a presumption for custody for one parent over the other. Both parents walk into court as equals and both parents have equal rights to custody of the child, unless the analysis and consideration of all sixteen factors proves that a primary custody award of one parent over the other is in the best interest of the child. While breast-feeding is obviously a real concern that imposes logistical concerns, this biological advantage of women cannot preclude dads from also bonding with their children.

This post was drafted by Lisa Haggerty, Law Student at Temple University Beasley School of Law and edited by Linda A. Kerns, Esquire

Tuesday, June 11, 2013

Divorce and Taxes

Each year, the Internal Revenue Service updates its Publication 504: Divorced or Separated Individuals.  For the 2012 version, click here.

The booklet offers explanations of the tax rules along with examples.  Have a copy with you when discussing terms of settlement with your lawyer and do not forget to consider the tax consequences!

Friday, June 07, 2013

Financial Advice from People's Life Experiences

The website publishes carefully curated stories of financial struggles and triumphs of people from all walks of life.  I highly recommend it.

Today's offering contains a story of a woman who found out after her marriage that her husband was riddled with debt, dishonest and the financial anchor that would weight her down.  Her "just married" happiness turned into sleepless nights of dodging creditors.  I hear these stories all too often in my practice.  Luckily, she was able to turn her financial life around.  Read about it here.

How well do you know your new spouse's financial situation?

Tuesday, June 04, 2013

Five Tips to Make Divorce & Separation Easier on your Kids

Children whose parents separate or divorce will feel a range of emotions, mostly sad or angry.  Try to do your part to make the path just a bit smoother.

Make the path smoother for your kids.

1. Stay positive about the other parent, both within and outside of earshot of your child.

As a relationship ends, no doubt, you feel that the other parent disappointed you in the worst way possible and has betrayed, hurt or lied to you. You also probably believe that you are the better parent and have trouble naming even one good thing about your ex.  Your children, even if they side with one of you, know that they came half from Mom and half from Dad.  When you insult the other parent, you are insulting a part of your child.  You are also making an extremely hurtful situation much worse because you are involving your children in something from which they should be protected.  Take the high road when it comes to the other parent.  Do not make nasty comments or even non-verbal expressions of disapproval about your ex.  Your children will be better off for it.

Stay positive about the other parent.

2. You be the parent and let children be children

Obviously, you are probably feeling sad, angry and scared but do not put your child in the position of confidante.  Your children are not your friends, support system or therapist.  They need their parent to be the adult so they can be the child.  Break-ups, divorce, financial woes and betrayals are adult sized problems that should be kept away from children.

Some things about the divorce will affect your child, like scheduling time with each parent and potential changes in lifestyle.  Keep things on a need-to-know basis. Division of assets, arguments about support and your complaints about the process should be off-limits when you communicate with your child.  You may need to tighten your belt if finances become an issue and you will, of course, need to discuss changes in your economic lifestyle with your children.  However, you should, inasmuch as possible, blame the situation and not anyone in person. 

Let kids be kids.

3. Tune in to your child’s feelings and always think about their perspective.

Children deal with divorce and turmoil in their parents’ lives in many different ways.  Watch for changes in sleep or eating and differences in their behavior.  Meet with teachers and ask about your child’s day to day activities.  Arrange for quiet thought sharing time without the distraction of television or other electronics.  A great way to get children to open up is to play the MAD-SAD-GLAD game.  Ask your child for one thing that gave them each feeling that day: MAD, SAD and GLAD.  It is a great way to tune in to what is important to your child and get them to open up to you.  

Think about your child's thoughts and feelings.

4. Introduce your new significant others with caution, care and concern.

A separation or divorce usually means that your time with your child has been reduced by half, or even more.  You have gone from being an everyday presence in their life to someone they see on a schedule.  If you introduce a new love interest into the time with your child, your child may see it as an infringement on their own parent/child time.  Children could interpret your new love interest as competition for your time and attention.  Additionally, no one can replace your child’s biological parent and they may see this new love interest as a “replacement” of mom or dad. Be gentle when introducing a new love interest and spend more alone time with your child so they do not feel that this new individual is replacing the parent they still love or taking your time away from the child.  

Blended families are not uncommon and can restore order and structure to a child’s life.  However, many children do not want to be forced into a step-parent relationship before they are ready.  A good rule of thumb is waiting a year before introducing a new boyfriend/girlfriend.  Continue to reassure your children how great they are, how much you love them, that they are your number one priority and allow them to adjust to the separation and divorce.  This will set the stage for a positive move into the next phase of your life.  

Wait to introduce new significant others.

5. Try to minimize the changes you can control

Children thrive on schedules and predictability.  Some parents are anxious to get on with a whole new life and explore different interests.  Whether it be a radically different lifestyle or a complete overhaul of diet in the home, now is not the time to implement drastic changes.  These changes can be discussed as a family and then gradually taken on when things have settled and you can incorporate your children’s feeling and emotions.  Children’s emotions will swirl around a divorce and whether they are relieved, devastated, happy, sad or hopeful, they are experiencing an emotional upheaval in their lives.  Inasmuch as possible, the rest of their lives should stay predictable and controlled so that they can take comfort in the familiarity of the aspects of their life that are staying the same.

Children thrive on predictability.

Monday, June 03, 2013

Getting divorced? Once the divorce is final, change your beneficiary designations, unless you agreed otherwise in your divorce.

Imagine if you get divorced.  And you forget to change the beneficiary designation on your life insurance policy so your now ex-spouse is your beneficiary.  You re-marry , maybe get another mortgage or have kids.  Your new spouse depends on your income.  You know you have a life insurance policy so you figure -- my new spouse will get it.

You die.  Your ex-spouse, still named on your life insurance policy, collects all of the proceeds and your current spouse is left with nothing.  Your current spouse sues and the case goes all of the way to the United States Supreme Court.  And your ex-spouse wins!  Talk about leaving behind a mess!

That is exactly what happened in the case of Hillman (current wife) v. Maretta (ex-wife).  In some states, a new marriage would cancel out the beneficiary designation, by law.  But in the Hillman v. Maretta case, a federal law was involved which trumped state law.

The moral of the story?  Get your ducks in a row and make sure your beneficiary designations are correct.  Losing a spouse is traumatic and complicated.  Do not make it worse on those you leave behind by failing to complete these relatively simple paperwork tasks.  Consult with your attorney because by agreement or court order, you may be required to keep your ex-spouse as a beneficiary.  However, do not do it by mistake.