LINDA'S LAW BLOG @ LINDAKERNSLAW

Helpful Tip Tuesday

2012-01-24T03:32:00.000-05:00

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

There is a Chinese Proverb that goes something like this:

"A child's life is like a piece of paper
on which every person leaves a mark."

Imagine the marks left on a child during a brutal custody and support battle. Do your best to love your children more than you dislike the other parent --- sometimes you can cut down on the fighting with this attitude.

We have a new custody statute in Pennsylvania

2012-01-18T04:17:00.002-05:00

Enacted last year, our new custody statute specifically lists the relevant factors that a court must consider when ordering any form of custody. The statute uses the word "shall" which means that the trial court does not have a choice and must consider each one of these factors when making a decision. Here is the new statute, in its entirety:

Section 5328(a) provides:
In ordering any form of custody, the court shall
determine the best interest of the child by
considering all relevant factors, giving weighted
consideration to those factors which affect the safety
of the child, including the following:

(1) Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party.

(2) The present and past abuse committed by a
party or member of the party’s household, whether
there is a continued risk of harm to the child or an
abused party and which party can better provide
adequate physical safeguards and supervision of the
child.

(3) The parental duties performed by each party on
behalf of the child.

(4) The need for stability and continuity in the child’s
education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic
violence where reasonable safety measures are
necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child’s emotional needs.

(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate
with one another. A party’s effort to protect a child
from abuse by another party is not evidence of
unwillingness or inability to cooperate with that
party.

(14) The history of drug or alcohol abuse of a party
or member of a party’s household.

(15) The mental and physical condition of a party or
member of a party's household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

So -- the question for those of us involved in custody litigation is: How do the courts apply this statute? We find the answer by looking at cases that have been appealed and reviewing the opinions of the judiciary.

In December, the Superior Court of Pennsylvania reversed and remanded a case back to the trial court when the trial court judge failed to follow the statute. In the case of J.R.M. versus J.E.A., 2011 PA Super 263, a Father appealed a very restrictive custody order entered by the trial court.

The background facts are worth mentioning only because the litigation and strife is lasting far longer than the whirlwind romance that produced the child who is the subject of this proceeding. Additionally, I have handled countless cases like this one regarding infants so the situation is quite common.

Mother and Father dated only a month before becoming engaged -- and Mother became pregnant two months later. However, love was soon lost and they broke up -- so bitterly that Mother did not even tell Father when she gave birth. When Father found out about his child, he contacted Mother, who set up all sorts of elaborate restrictions on his time with the child, including that it was essentially supervised and he could not take the child back to his home. Mothers of infants are understandably fiercely protective of their babies -- and in this case she barely knew the Father. Imagine her concern in letting her baby go with a stranger. However, this stranger is the child's Father and as such has as much right as Mother to time with the child.

After litigation, the trial court basically sided with Mother but limited its analysis to the fact that she was breastfeeding which would limit the time the child could be away from her. Father appealed the very limited custody order and the Superior Court essentially agreed with him -- sending the case back to the trial court to consider ALL of the factors in the statute.

The lesson to be learned:

In custody matters, be ready to present your case to the court with a knowledge of the factors in the statute, bolstering your position with specific examples.

Helpful Tip Tuesday

2012-01-17T03:29:00.002-05:00

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

Carol Burnett once said:

"Words, once they are printed, have a life of their own."

If say something by email, facebook, tweet, text or other written form, remember how it will look if a judge reads it!

How Long? Not Long!

2012-01-16T18:09:00.003-05:00

Mine eyes have seen the glory . . .

Helpful Tip Tuesday

2012-01-10T05:55:00.000-05:00

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

Need to find out information about the court system in Pennsylvania? The Unified Judicial System of Pennsylvania operates a comprehensive, informative website at http://www.aopc.org/default.htm.

You can also find links to county courts, which offer specific information for each county at:

http://www.aopc.org/Links/AskedAnswered/LinksToOtherSites.htm#county.

Waiting to complain about something during an appeal is usually too little, too late

2012-01-06T11:28:00.003-05:00

It has long been the law that in order to appeal an issue, you must preserve it at the trial court level or the appellate court cannot and will not hear it. If an error occurs during your trial, you must log an objection -- or it is considered waived. If a court allows hearsay testimony, fails to file procedure, misapplies the rules of evidence or otherwise makes and error, you cannot simply sit idly by and think to yourself, "I won't say anything now but I will really complain about this to the appellate court!" If you do, you lost your chance forever.

In the recent Pennsylvania Superior Court case of Summers v. Summers, (quite the name to consider on a cold winter day), the parties appeared in court when Father filed a petition to reduce his child support. The Court apparently accepted into evidence a letter from Father's doctor that indicated Father was disabled and could not work. Mother did not have the opportunity to cross examine the doctor or explore the issue further. However, she failed to object during the trial.

On appeal, Mother argued that the trial court had reduced Father's child support on the basis of the doctor's note which was hearsay and should not have been admitted as evidence. Mother's claim is indeed accurate --- a doctor's note, without more, is indeed inadmissible hearsay evidence. However, the appellate court found that because Mother did not object during the trial, she waived her right.

No doubt Mother handled the trial on her own, without an attorney. When she was not happy with the results, I imagine she found a lawyer to prepare and file and appeal and that lawyer noticed that the note, which is hearsay, was entered into evidence. Raising this objection for the first time on appeal, however, simply does not allow the court to provide relief.

The moral of the story: make your objections at the trial court level so that if the trial court does make a mistake, you preserve your right to appeal.

Helpful Tip Tuesday

2012-01-03T06:50:00.001-05:00

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

When you divorce, you should update all financial paperwork, including your estate plan, beneficiary designation on your assets and insurance beneficiaries. Make a list now of all of your accounts, insurance policies and assets with beneficiary designations so that you can make appropriate adjustments in conjunction with your divorce.

Happy 2012!

2012-01-01T01:36:00.001-05:00

Be always at war with your vices, at peace with your neighbors, and let each new year find you a better man.

~Benjamin Franklin

Oh no, I bought the Amityville Horror House

2011-12-29T02:05:00.003-05:00

I have previously written about the importance of performing research before purchasing a property. I always recommend Googling the address of the property as part of due diligence. With a simple Google search, you may be able to find out about the crime rates in the area, crimes committed in the particular house and problems in the area that could interfere with your eventual enjoyment of the property. I specifically wrote about a couple who bought a house that had previously been used as a methamphetamine lab. Because the chemicals used are extremely toxic and had seeped into the structure of the home, the couple became ill simply by living in the house and had to move out. However, they were still saddled with the mortgage on a house that they could not use and could not afford to repair.

There are disclosure requirements in Pennsylvania, but the requirements have previously been interpreted by the courts to be limited to a disclosure of material defects. Last month, the Superior Court of Pennsylvania took a hard line stance when a seller had not disclosed to the buyer that during the previous year a murder/suicide of a husband and wife had occurred in the house.

In the case of Milliken v. Jacono, et al., the buyer sued the sellers and the real estate agents claiming fraud and misrepresentation, because they had not disclosed that the previous owners had died via an apparent murder and suicide. The realtors and the sellers defended themselves by arguing that they had consulted with both the Pennsylvania Real Estate Commission and the Pennsylvania Association of Realtors Legal Hot Line regarding their disclosure requirements. The realtors and sellers believed, after researching the issue and seeking advice, that they had no duty to disclose the house’s sad history.

When the buyer moved in, she apparently learned that the sellers had purchased the home from the Estate of Kostantinos Koumboulis and the Estate of George Koumboulis. The buyer, apparently upset that she was living in a house where a murder/suicide occurred, sued. The trial court dismissed the matter by granting a summary judgment. A summary judgment is a legal mechanism where, without sending the case to a jury, the trial court reviews all of the pleadings and proofs presented and decides that no genuine issue of material fact exists. Basically, the trial court dismissed the buyer’s lawsuit, because it concluded that failing to disclose that a murder/suicide had taken place on the property was not a significant and material defect.

The buyer appealed to the Superior Court of Pennsylvania, our appellate court, who reversed the summary judgment issue. The Court remanded the case back to the trial court so that the issue of whether the murder/suicide was a material defect could be decided by a jury.

One justice dissented in the case, indicating that he disagreed with his fellow Superior Court Justices in finding that revealing a previous murder/suicide was a necessary part of disclosure. The dissenting justice, Justice Ford Elliott, noted that this case could be interpreted to demand that sellers must reveal all crimes ever occurring on a property, which would be ludicrous. Additionally, and significantly in this case, the sellers were one owner removed from the murder/ suicide. Judge Ford Elliott questioned whether there should be some type of a time limit with regard to this type of disclosure, specifically noting that a murder that happened 100 years ago would certainly not be significant. The justice also seemed concerned that it was difficult, if not impossible, to put a price tag on the psychological damage to a house where a crime took place. In other words, it is questionable whether a past crime would actually lower the value of the house.

Whether you agree or disagree with the court’s decision, it does now appear that in Pennsylvania, at least a crime as serious as a murder/suicide occurring in a house, should be reported on a disclosure in a real estate transaction. However, as the dissenting justice noted, modern home buyers have powerful tools in the form of the internet to uncover these types of red flags with a property. Had this buyer simply Googled the name of the previous owners, which was certainly available to her prior to closing on the house, she may have discovered the crime.

Helpful Tip Tuesday

2011-12-27T08:00:00.000-05:00

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

Need to calculate a specific date? Or create a calendar? Try www.timeanddate.com

Merry Christmas

2011-12-24T13:19:00.000-05:00

From all of us at the Law Offices of Linda A. Kerns, LLC

Christmas countdown

2011-12-23T01:05:00.002-05:00

We received so many great, imaginative cards this year. It is so great to hear from colleagues, family and friends, as well as clients, both old and new!

Let's get married, and if you come to America, I will support you.

2011-12-22T00:52:00.000-05:00

U.S. citizens sometimes meet exotic foreigners (or perhaps not so exotic), and, swept away by the prospect of a lifetime of love and happiness, marry in order to start the process of their new love's legal immigration to the United States. I have personally witnessed this phenomenon. One friend from law school fell for her Egyptian tour guide during a cruise of the Nile, married him and brought him back to America with her. They now have two lovely daughters and reside in Chicago. Another friend, a doctor from Philadelphia, swooned over her tour guide in Costa Rica and after several subsequent trips, married him and brought him to Philadelphia. Clearly, tour guides provide a certain allure for Americans!

In my practice, I have encountered much less romantic tales. I have had cases where people married foreigners that they met over the internet. Once the person settled in America, the romance quickly faded, and divorce papers were prepared before the ink on the marriage certificate was dry. However, in addition to dealing with divorce laws, these marriages face the scrutiny of our immigration laws.

Our federal immigration laws dictate that when a

U.S.

citizen marries a non-citizen in order to facilitate the non-citizen's road to legal residence in the

United States

, then the

U.S.

citizen must execute an Affidavit to provide support to the non-citizen. The

U.S.

citizen must provide support equal to at least 125% of the Federal Poverty guidelines.

Each state’s laws dictate that spouses also owe a duty of support to each other. Accordingly, upon separation, because "I do" also means "I will support you," the spouse who earns less (or nothing at all) has a claim for support against the higher-earning spouse. Those support claims are governed by state law. However, citizens, who signed an Affidavit to support their spouse pursuant to immigration law, are also subject to the state’s support requirements. What happens if the support calculations under state law are different than the support calculations under immigration law? Does the spouse get both? Or the higher amount? Do you go to federal or state court to enforce?

The Superior Court of Pennsylvania (our appellate court) recently opined on the issue in a case appealed from the Philadelphia Court of Common Pleas. In this case, James C. Love, a U.S. citizen, married Yvonne, who took his last name and became Yvonne A. Love. The names are not relevant to the story, just a bit ironic, as any love ever present in this case appears to have given way to years of litigation. They married on October 29, 2005 and separated in May 2009. They have been fighting in court ever since.

The parties had a daughter during the marriage, and upon separation, Wife filed a claim for spousal and child support. In calculating the support, the trial court imputed an earning capacity to Wife. (Courts use earning capacities in cases where they believe an individual is under-employed or unemployed voluntarily. This is a remedy that attempts to achieve fairness so that one spouse does not bear the entire financial burden, while the other spouse refuses to work to their full capacity).

In this case, the support amount calculated by the Philadelphia court was less than the amount Wife calculated she would have received pursuant to the Affidavit of Support signed by her Husband under immigration law. Simply put, the state support order, as entered, was less than 125% of the Federal Poverty Guidelines. The trial court, however, opined that Wife had a duty to work and contribute to her own support. The trial court further reasoned that if she worked a minimum wage job for 30 hours per week, combined with Husband's support, she would actually have much more than 125% of the Federal Poverty Guidelines available to her.

On appeal, the Pennsylvania Superior Court ruled that the trial court should have deviated from the guideline support amount and calculated a support award that constituted at least 125% of the Federal Poverty Guidelines. Accordingly, the trial court should have enforced the federal immigration law.

One Superior Court justice dissented, opining that the trial court was correct and if Wife wanted to enforce the Affidavit then she needed to institute a separate action under federal law.

This case provides valuable guidance for situations where immigration and family law intersect. If a spouse signed an Affidavit under immigration law, agreeing to provide support at 125% of the Federal Poverty Guidelines, then he or she should be prepared to pay at least that amount in support, even if calculations under Pennsylvania support laws would allow a lower amount.

To read the entire opinion in Yvonne A. Love v. James C. Love, click here.

Helpful Tip Tuesday

2011-12-20T09:00:00.001-05:00

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

Try http://www.mint.com/ for some great tools to manage your finances, set budgets and get your money under control.

Our Christmas Card Image This Year: 2011

2011-12-16T04:04:00.000-05:00

Each year we combine a Photograph of the Philly Love Statue with iconic Philadelphia images. This year, we chose the plus sculpture, located in the Sculpture Garden at the Philadelphia Art Museum. Our message this year: Plugged into love . . . .

Here are some of our images from previous years:

Love outweighs all

You never know where you will find love.

Believe in Love

Dominic Episcopo shoots our images for us. Visit his website: episcopo.com

We already have our image for 2012 picked out! Have ideas for future years? Let us know.

New Jersey Child Support - Where do I start?

2011-12-14T06:37:00.002-05:00

The New Jersey Child Support website provides information, resources, forms and answers to frequently asked questions. Find the website at <www.njchildsupport.org>.

New Jersey Courts base child support orders on the New Jersey Child Support Guidelines. Your first step should be to gather as much income information as possible for both parents. This includes tax returns and paystubs as well as Profit and Loss statements and Corporate Tax Returns for self-employed individuals.

Certain expenses may be relevant to a child support calculation, including: daycare or babysitting, summer camp, health insurance, medical expenses, extraordinary costs and tuition, if applicable. Gather as many receipts and documentation as possible as prove these expenses.

Your custodial arrangement may also influence support. If you do not have a custody order in effect, or you do not regularly follow it, you should keep a calendar or log of all of your time with your children.

Read this helpful article for more information: The Eight Major Steps in Calculating Child Support in New Jersey.

Unless parties otherwise agree, child support is paid through the New Jersey Family Support Payment Center (NJFSPC). The Payor parent is either wage attached or, if self-employed or otherwise does not have wages, then he or she pays NJFSPC directly. The parent receives support either by having the funds placed directly on a debit card or by direct deposit.

While we have guidelines, rules, statutes and caselaw, each particular family possesses their own unique set of circumstances that can affect a child support calculation. Please contact our office for a consultation specifically designed for your situation.

Helpful Tip Tuesday

2011-12-13T09:00:00.000-05:00

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

If this is your first holiday season after a separation or divorce, it is certainly understandable if you are anxious or unexcited by the rapidly approaching holidays. Yes, this year will be different, but try to establish new traditions that create happiness and joy for you and your family as you move forward with your new life

New Jersey Cost-of-Living Adjustments to Support

2011-12-08T01:15:00.000-05:00

In New Jersey, the law requires that all child support orders issued after September 1, 1998 be adjusted to reflect the increase in cost-of-living every two years. In essence, the cost-of-living adjustment is calculated by reviewing the Consumer Price Index in New Jersey during the two year period. If there is a statistical percentage increase in the cost-of-living, then the increase would be applied to the child support order. Before applying the increase to the child support order, the paying party must receive notice of the increase so that he or she has the opportunity to object. The payor must file an objection to the increase within thirty days of receiving the notice.

One reason that New Jersey allows the payor to object to the increase is if his or her income did not increase at least as much as the cost-of-living increase. In other words, if the payor’s income only increased 2% during the two year period, but the cost-of-living increase was 2.5%, then the payor would have grounds to object to the increase in child support. On the other hand, if the payor’s income increased 2.5% or more, then the payor could not use these grounds to object.

If the payor timely objects within thirty days to the notice of increase, then the Probation Department makes a determination whether the increase is warranted. Then either party, if unhappy with the decision, can appeal. That initial appeal is heard by a hearing officer. Any party dissatisfied with the hearing officer’s decision can appeal and receive a hearing with the Family Part. The hearing in front of the Family Part is heard de novo, which means that the judge looks at all the facts anew and must make certain factual determinations.

In a September 2011 New Jersey Superior Court case, Savini v. Triestman, the Court held that as part of the de novo hearing in the Family Part, a judge must make the following findings of fact:

1. the amount of the payor’s income at the time of the initial child support order or the last cost-of-living adjustment,

2. the amount of the payor’s income during the interim years, and

3. if the payor’s income increased, whether the increase was equal to or greater than the calculated cost-of-living adjustment based on the Consumer Price Index.

In order to make this decision, the judge must weigh the facts as presented by the parties. It is the payor’s burden to prove that his or her income has not increased as much as the cost-of-living adjustment. In short, because the payor does not want an increase in his or her child support obligation, the payor must prove that his or her income has not increased.

If you currently pay child support in New Jersey, it is important for you to keep all of your income information, especially if you believe that your income may not increase as much as the state’s cost-of-living adjustment. When you receive a notice of increase, you should be prepared to act quickly. If you do not object within thirty days, you likely will lose your ability to object to the increase. If you are receiving child support and do not believe the amount has been appropriately adjusted, you may need to file a petition with the court. Therefore, you should immediately contact an attorney to advise you.

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

Helpful Tip Tuesday

2011-12-06T05:42:00.000-05:00

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

Change your passwords!

Hackers often simply attempt some of the passwords from this list of 25 of the most common passwords. If you use any of those -- change them immediately!

A Judge can order you to turn over your Facebook username and password

2011-11-30T01:34:00.002-05:00

Facebook users often post intimate details of the minutiae of their lives . . .pictures of their meals, unfiltered thoughts and comments, photos of their children, thoughts on current events . . . and their hundreds (or even thousands) of "Facebook friends" can share in their daily lives. However, being a "Facebook friend" does not equate to a personal, real life relationship. Accordingly, those Facebook postings, some with very personal information, are spread to a network of people whom users do not know personally.

The suggested number of people a with whom a person can actually sustain an actual, on-going social relationship has been estimated to be between 100 and 230, also known as Dunbar's number.

With many Facebook friend circles numbering in the several hundreds, or even thousands, commonsense dictates that Facebook users do not maintain actual, social relationships with all of their "Facebook friends." Add in the information that is not private on Facebook, and therefore open to anyone with an internet connection, and those intimate details that are posted are suddenly shared with the general public.

Those same people who post up to the minute chronological details of their daily lives, complete with pictures, often cry foul when their postings are used against them. While this reasoning defies logic, the phenomenon frustrates lawyers because of clients' refusal to terminate the incessant and detailed postings.

I tell every potential client that their words can be used against them, and to be extra careful with social networking sites, email, text messages, blogs and other mediums where a record is made. With their retainer agreement, each client receives a written notice regarding the dangers of unfiltered and unfettered publication of intimate details of their lives. The draw of social networking must be too great because, invariably, clients cannot resist the lure of spreading details about their lives . . . and it is often used against them in litigation.

Courts in Pennsylvania have trended toward granting access to Facebook accounts via the discovery process in litigation. Judges have actually ordered that a litigant turn over their username and password so that opposing counsel can inspect the entirety of the account. Litigants have even been ordered to open their Facebook page in court --- for an impromptu inspection.

Just this month, a Pennsylvania judge ordered the following in the case of Largent vs. Reed, et al:

IT IS FURTHER ORDERED that Plaintiff Jennifer Largent hall turn over to Defense counsel her Facebook username email and password within 14 days of the date of this Order. Plaintiff shall not delete or otherwise erase any information on her Facebook account. After 35 days from the date of this Order, Plaintiff may change her Facebook login password to prevent further access by Defense counsel.

You can read the entire opinion here.

Before you post, decide if you would be comfortable with a judge, opposing counsel, your adversary in a case and complete strangers viewing it. If not, edit accordingly.

Helpful Tip Tuesday

2011-11-29T09:04:00.001-05:00

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

If you are not ready to file your tax return on the due date each year (April 15th), most people know they have the option of requesting an extension of time to file their return. However, at the time you file your extension request, if you file your extension as married filing separately, you are permitted to then amend and file jointly. However, if you file an extension jointly, you are not permitted under the law to then amend and file separately. Accordingly, carefully choose your filing status when you request your extension.

“Who is watching you?”

2011-11-28T04:14:00.006-05:00

Before a marriage ends, there is often a lack of trust. This can lead a spouse to take extreme measures, such as hiring an investigator to follow a spouse or tracking their movements with a GPS. Although this is not exceedingly common, it occurred in a New Jersey case, Villanova v. Innovative Investigations, which warns of the dangers of tracking a spouse.

In Villanova v. Innovative Investigations, the parties were married in 2000, and divorced in 2009. Before their divorce, wife suspected husband of infidelity and hired a private investigation company. The private investigator suggested that wife install a GPS tracking device in the parties' car to track husband’s movements. After purchasing a GPS device, wife placed the system in the vehicle that was jointly owned by parties and maintained for their personal use. Wife testified that the GPS system was only installed in the vehicle for 40 days. During those 40 days wife obtained online reports regarding the movement of the vehicle. However, nothing in the court record shows whether wife passed the information from these reports to investigators.

During the divorce proceedings, wife acknowledged that she placed a GPS device in husband’s vehicle. At that time, husband asserted a right to privacy defense against wife in the divorce action; however, it was later waived.

Husband then brought suit against the private investigators claiming that the private investigation company invaded his privacy.

Investigators argued that the tracking of a vehicle on public roadways is not illegal because a driver has no expectation of privacy while in a car on a public roadway. In response, husband argued that often, locations are not within public view, therefore a certain level of privacy is expected. The court responded by agreeing that there is a level of privacy associated with certain areas, such as private parking lots; however, husband was never in those locations. Next, husband claimed that because he is a police officer his movements should be held as private. The court again disagreed with husband, focusing on the fact that the vehicle was jointly owned by the parties and was intended for personal use.

The court then focused on the right to privacy argument set forward by husband, who claimed that the GPS tracking device intruded on his solitude and seclusion, which resulted in a violation of his privacy. The right to privacy has been defined as the right of an individual to be “protected from any wrongful intrusion into his private life which would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.”

The court held that there was no direct evidence that the GPS device recorded husband’s movement into a private area, and therefore there was no expectation of privacy. Further, there was no reasonable expectation of privacy in husband’s movements from one place to another.

In short, the court held that under those specific circumstances it was not a breach of husband’s right to privacy. However, he warned that it was a highly fact-specific decision. If one detail had been different, the court may have come to a different decision. For example, if only husband’s name was on the car or if he had driven to private property, then the court may have reached a different decision. In short, you should consult with an attorney before taking any actions to avoid potential legal battles.

Staying married for the children's sake . . .harmful or helpful?

2011-11-27T15:57:00.000-05:00

Read the insightful essay in this weekend's New York Times: Keeping Marital Secrets Closeted.

Happy Thanksgiving!

2011-11-24T01:19:00.001-05:00

Cross that one off the bucket list!!

2011-11-22T11:17:00.000-05:00

Our very own Elizabeth A. Bokermann, Esquire completed the Philadelphia Marathon this past Sunday. That's right . . . 26.2 miles!

What an accomplishment!

Elizabeth is a true athlete and scholar.

Helpful Tip Tuesday

2011-11-22T09:02:00.002-05:00

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

Going through a divorce? Consider redecorating. A new coat of paint or different furniture can help you take charge of this next phase of your life. Visit www.apartmenttherapy.com on www.casasugar.com for tips and ideas.

Strategies for surviving the holidays

2011-11-21T01:30:00.000-05:00

The holiday season is often stressful for families. The normal stress is often exaggerated if a family is experience a divorce or is a blended-family. Read this article for strategies to not only survived but also enjoy the holiday season.

Revenge not so sweet that can land you in jail!

2011-11-18T01:28:00.000-05:00

Think before you post....tweet .....text .....facebook .....youtube.....email .....etc.

Police recently arrested a Delaware County man who videotaped his girlfriend while they were having se and then, after they broker up, posted the video on the internet. According to reports, he told police that he was: "trying to be hateful." He now faces multiple criminal charges as well as attorneys fees, court costs, the humiliation of having his story splashed across the news along with the break-up of his relationship. Read the full story here.

The dangers of social media

2011-11-17T03:51:00.000-05:00

We often post regarding the dangers of social media - almost to the point of seeming alarmist or redundant. However, the problems with social media are real, especially if you are involved in litigation. This is particularly true as courts are only beginning to grapple with how to deal with evidence available through social media.

Click here to watch a news video regarding the impact of Facebook in a divorce and custody case.

Click here to read a news article regarding the implications of Facebook "friendships" for lawyers and judges.

Helpful Tip Tuesday

2011-11-15T08:59:00.001-05:00

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

Compartmentalize email correspondence with your spouse. Consider setting up a separate email address specifically dedicated to correspondence with your spouse. That way, if you ever have to produce those emails, you do not have to sort through your work emails or other private emails that are not relevant to the divorce.

Helpful Tip Tuesday

2011-11-08T05:07:00.003-05:00

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

Sometimes we cannot change the way our ex behaves. However, we can change the way we react to that behavior. That can make all of the difference in the world.

Election Day - November 8, 2011

2011-11-08T01:53:00.001-05:00

Polishing up your credit score

2011-11-03T03:47:00.000-04:00

Contrary to what most people seem to believe, credit scores can be improved. Some fixes are easy, some take work and some simply take time, but methods exist to improve your credit worthiness. If you have a spotty credit history, taking proactive steps now will help you be more attractive to lenders in the future.

1. Pay your bills on time. One or two late payments can affect your credit score, but do not throw in the towel and make your problem worse by continuing to make late payments. Additionally, sometimes a lender will consider the reasons behind late payments (such as a divorce, death or unemployment) and reduce the damage to your score if you show a better payment history.

2. Pay down your large balances and avoid accumulating additional debt. Keep your debt balances in check. Continue to attempt to reduce what you owe, and try to avoid simply moving balances to different credit lines. Additionally, try to pay down the accounts with the highest interest rates first.

3. Resist the urge to max out all available credit. Your credit worthiness is measured in part by the amount of your outstanding debt compared to the amount of credit available to you. If all of your credit card balances are close to your credit limit, your credit score will be lower. For example, if your credit card has a $5,000.00 limit on it, then your credit score will be better if your outstanding balance is $1,000.00 than if it is $4,000.00.

4. Develop a positive credit history over time. A long credit history in crystal clean condition is obviously the best situation, but, even if you only have a short credit history, make sure it is a good one by keeping your balances low and making timely payments. For example, if you do not have a credit card because you are afraid of credit card debt, it still may be a good idea to open a credit card to establish credit history. You do not have to use the credit card. Simply having credit available to you helps establish positive credit history.

5. Understand that you may have taken action that will negatively affect your credit score and possibly for a long period of time. For example, a judgment against you, a bankruptcy or a foreclosure will negatively mark your credit score for quite some time. Typically, it takes at least seven (7) years, if not longer, for bad marks to be removed from your report. However, you can begin to minimize the effect of those black marks by patiently engaging in good credit behavior.

6. Be careful about applying for too much credit too quickly. Multiple applications over a short period of time appear on your credit report and can negatively affect your credit worthiness. Be aware that credit card applications are not the only “applications” that appear. Applications for credit like car loans, student loans, mortgages and lines of credit also appear. For example, trying to open a couple new credit cards right before applying for a mortgage may negatively impact your credit score and make it more difficult to obtain a competitive mortgage.

7. If possible, do not simply rely on credit cards. Rather than only using credit cards for financing needs, maintain a mix of credit types, such as installment loans or equity lines.

8. You can correct mistakes on your credit report. The first step is to obtain your free credit report. Federal law requires that you be able to obtain one free report each year. You can obtain the report by visiting www.annualcreditreport.com. Note that this website is an independent website and is different than sponsored websites, such as freecreditreport.com, or websites associated with one of the three credit bureaus. Those websites often have hidden costs, such as requiring you to sign up for a free trial of a credit service. The reports at www.annualcreditreport.com are completely free. Once your report is mailed to you, if you find mistakes, potential identity theft, such as someone else using your credit, or balances that are not familiar, you should challenge them right away. That way, you are proactively protecting an asset (your credit score), which is becoming more and more important as banks are becoming much more stringent with their lending policies.

Helpful Tip Tuesday

2011-11-01T05:04:00.000-04:00

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

Polish up your resume. The job website, monster.com, includes a section on resume tips. Check it out.

When a dispute becomes a spat

2011-10-29T07:40:00.004-04:00

Recently, a Defendant in a case sought a continuance of a trial scheduled in Kansas City, on the basis that on of their primary attorneys, who lived in Dallas, was expecting his first child.

Plaintiffs objected to the continuance and used as part of their argument a calculation of when the child was conceived, and therefore when the Defendants would have known about the due date.

The Judge granted the continuance and issued a spirited opinion as to the unreasonableness of the Plaintiffs' position. You can read the well-drafted, tinged with sarcasm opinion here.

Lesson to be learned:

Be careful in your litigation about being so unreasonable as to irritate the judge. Here, a simple request for a continuance ended up in a slap on the wrist from the judge --- a loss of good will that might have been prevented had the litigants been a bit more reasonable.

Helpful Tip Tuesday

2011-10-25T09:00:00.000-04:00

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

Do not be a “Bitter Twitter.” Using a social media site like Twitter to vent about your spouse, gather supporters, spread the news about your divorce or try to set the record straight as to who is at fault will very rarely help you and in most cases simply make your divorce much more painful, lengthy and costly.

Helping your children navigate a new custody arrangement.

2011-10-20T04:28:00.000-04:00

Saying that separations and divorces are emotional and challenging is an understatement. They rock families to their cores, and it forces each member of the family to adopt a new life view. This is particularly true for children, who often have little true understanding of the reasons behind the dramatic shift in their lives. Parents may not be able to stop the separation, but there are many things that parents can do to ease the transition and help their children as they adapt to their new lives.

1. Most importantly, there is no right answer. Talking to friends, family and your lawyer can help you create a gameplan, but you have to determine what is right for you and your children. What worked for your neighbor may not work for you, and that is okay. Talking to a therapist or counselor could help you and your children. A therapist, even a school counselor, could be the perfect neutral third party to help your children sort through their feelings, questions and concerns. Moreover, a therapist could help you sort through your own complex emotions, while also helping you create a plan of action for your family.

2. Make sure that your children have a safe, comforting place to call their own in each parent’s house. Ideally, this should be their own bedroom, or a bedroom shared with their siblings (not half or step-siblings, at least initially) in each parent’s house. A separate bedroom is important, even if the children do not spend many overnights at the house. If the children do spend overnights at the house, then there should be suitable sleeping arrangements, including a permanent bed. Sleeping on a couch or inflatable mattress only leaves children confused and with a sense of instability and lack of permanency. At the very least, the children should have a space where they can have some quiet, alone-time if needed.

3. Your children should have all of the basic necessities at each parent’s house. That means that the children should have toothbrushes, underwear, pajamas, medications (if possible), basic clothing items, nightlights, etcetera at each house. By having duplicate sets of these essentials at each house, it reduces the stress of transitioning between houses by eliminating the feeling that they are going on a vacation for which they need to pack. Additionally, it will reduce the likelihood that you will argue with the other parent about forgotten items.

4. In addition to having the basic necessities, your children should have their own toys, books, and other comfort items at each house. It is important for children to feel like they are not simply “visiting” the other parent’s house. This is particularly important if there are other non-sibling children in the house. By allowing each child to have their own possessions, it will decrease the likelihood of fights between children of a blended family and will provide the child a sense of security in having ownership over part of their lives. In short, the parents should attempt for each parent’s house to equally feel like home for the children.

5. Along the lines of the previous paragraph, a parent’s choice of words becomes important. Make sure that you refer to both parent’s houses as “home” and try to avoid the word “visit.”

6. Create a calendar to show the children when they will be each parent’s house. For young children, color-coding the calendar can be helpful – use one color for the days that they are with mom and another color for the days they are with dad. This practice helps children to establish a routine and to gain an understanding that there is predictability to where they will be staying.

7. Give your best effort to working with the other parent to coordinate completion of home assignments and projects. Things like permission slips, report cards and other important forms can easily get lost in the hustle and bustle, even when children are not transitioning between homes.

8. Communicate with the other parent regarding the children’s activities. Every child deserves the opportunity to have each of their parents watch them in the school play or on the soccer field. Moreover, parents must communicate so that the child has everything that they need for the activity, including uniforms, instruments or the assigned shared snack.

9. Make sure that both parents’ contact information are included on all forms, even if one parent has primary custody and the other only has partial custody. If something happens and a parent needs to be contacted, only the child suffers if the parent cannot be reached. By providing the contact information for each parent, the likelihood decreases that a parent would not be contacted.

10. Do not engage in negative talk about the other parent with or in front of your children. Little children tend to have big ears and big eyes. They hear conversations and notice tension and exchanged glances. Be careful.

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

How to read a HUD Settlement Statement

2011-10-19T01:48:00.000-04:00

Buying, Selling or Refinancing a house? You should be intimately familiar with the HUD-1 settlement sheet -- the document that is the road map to your transaction.

Here is a link to a complete HUD-1. Below I have provided a step-by-step guide to each form on the HUD-1 so during your next real estate transaction, you will be well-versed in the details of the process. Read the guide in conjunction with reviewing the actual HUD-1 form.

HUD 1 - Page One

Sections 100 & 400:

Lines 101/401 Sales price as stated on the Agreement of Sale - This is the number that will be used to calculate realtor fees and transfer taxes.

Line 103 Total of buyers’ closing costs from Page 2, Line 1400 - You should always check the math and make sure the number is carried over correctly.

Lines 106-112 &
406-412 Pro-ration of taxes, sewer/trash rent, Condo/HOA, fees, etc. that have been pre-paid by the Seller. Buyer is reimbursing the seller for prepaid items from the day of closing to the end of the taxing or payment period. Always make sure the math is correct.

Lines 120 & 420 Total amount due from Buyer and due to Seller.

Sections 200 & 500:

Line 201 Total deposit (“down money”) credited to buyers at closing. Make sure you receive credit for all of your deposits.

Line 202 New loan amount, as applied for by buyers with their new lender.

Lines 205-209 This section reports any credits made on the Buyers’ behalf, such as, cashiers/certified check from the buyers, second mortgages, closing costs credits from seller.

Lines 210-219 &
510-519 Pro-ration of taxes, sewer/trash rent, Condo/HOA fees, etc. that have not been pre-paid by the Seller. These will be charged to the buyers at a later date. Since they cover a portion of the time that the seller owned the property, the seller is responsible for that part of the total bill and pays them to the buyer.

Line 502 Total of Seller’s closing costs from Page 2, Line 1400. Always check the math and make sure the number is carried over correctly.

Lines 504 & 505 Payoffs of Sellers’ mortgage liens against the property. If you are the Seller, check these lines carefully and make sure they match the payoff numbers that you have received from your lender.

Lines 506-509 Additional charges due from seller, such as, Federal Express fees, repair bills, etc.

Lines 220 & 520 Total credits for the Buyers and total charges to the Sellers.

Lines 303 & 603 Total cash to/from buyers to total cash to/from sellers.

HUD 1 - PAGE TWO

Section 700:

Lines 701 & 702 Commission paid to Seller/Listing Broker. Check the math and make sure this number matches your agreed upon percentage in the original listing agreement.

Line 703 Total commission paid at settlement by seller/buyer.

Section 800:

Line 800-815 Fees due from the buyers’ lender. These will usually consist of points, appraisal/credit report, document preparation, flood certification, tax service, and any other fees charged. Go over these carefully - you may have already paid some of these directly so make sure you receive credit.

Section 900:

Line 901 Interest due from the buyer (if they are obtaining a loan), from the day of closing to the end of the month.

Lines 902-905 Premiums due from the buyer for mortgage insurance, homeowners’ insurance, and flood insurance, if any are applicable.

Section 1000:

Lines 1001-1008 All escrows as required by the buyers’ lender.

Section 1100:

Line 1106 Notary fees due from buyer/seller.

Line 1107 Attorneys fees, if applicable, charged by the buyers’ or sellers’ attorney. You may also choose to pay your attorney directly, outside of settlement.

Line 1108 Title insurance due from the buyers. In Pennsylvania, this is a filed rate as determined by the Pennsylvania Insurance Rating Bureau based on the sales price. It can either be a basic rate, reissue rate, or new construction rate. Make sure you are charged the appropriate rate.

Line 1111 Endorsements are additional insurance coverage required by the lender. If you have questions, go through these carefully with your lender.

Section 1200:

Line 1201 Recording fees to record the applicable documents in the county courthouse. (Deed, Mortgage, Assignment, etc.)

Lines 1202 & 1203 Transfer tax due from buyer/seller. Make sure you are charged the correct rate.

Section 1300:

Lines 1301-1308 Any miscellaneous fees due from either the buyer or seller, such as, termite inspection, conveyancing fee, home warranties, etc.

Line 1400 Total settlement charges for the buyer and seller which will be carried over to page one on lines 103 and 502, respectively.

Helpful Tip Tuesday

2011-10-18T01:30:00.000-04:00

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

Does your legal file look like this?

Just today a client called me asking for a copy of his custody order -- something that we had sent him several times already. It is in your own best interests to keep copies of all of your important papers in a neat, orderly manner. Your attorney may store files off-site so it could take some time (and expense) to call your attorney every time you need something.

I suggest labelling five folders a the beginning of your case:

1. orders

2. pleadings

3. correspondence

4. financial

5. notes

Every time you receive a piece of paper - file it in one of the above files, in the order you received it. You will notice that I put "orders" at the top of the list --- as orders are generally the most important thing you receive in a case and something you may have to refer to time and again.

Because orders are so important, you may also want to scan a copy of each order into a folder on your computer - clearly labelled with the name of the order.

Tips from the IRS if you change your name after a marriage or divorce

2011-10-12T03:41:00.007-04:00

Click here for tips on making sure your new name matches the name on your tax documents and with the Social Security Administration.

Click here for directions on how to obtain a new social security card.

Helpful Tip Tuesday

2011-10-11T09:00:00.002-04:00

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

Deciding to divorce? Develop a checklist for yourself so that you can begin to gather the necessary documents. While each marriage, and therefore divorce is unique, a listing of all assets and debts is a starting point universal to all divorces. Here is a list to get you started (some of which may not apply to your specific situation):

a.   Copies of all retirement account statements.

b.   Copies of bank account and investment statements.

c.   A recent mortgage statement or rental lease.

d.   Recent pay stubs for both spouses.

e.   At least the previous two years of tax returns including all attachments and schedules.

f.   A copy of life insurance policies.

g.   A copy of the health insurance plan for everyone in the family.

h.   A list of all debts including credit cards, student loans, home equity loans and personal loans.

i.   A copy of the marriage certificate.

Not a LOL matter

2011-10-10T02:51:00.002-04:00

Today, cell phones have become an almost necessary part of our lives, allowing us to be contacted at a moment’s notice. Instant communication can be convenient and productive. However, instantly being able to text an ex-spouse when emotions are running high may not always the best choice for you or your children.

The New Jersey case of L.M.F. v. J.A.F specifically addresses text messages between ex-spouses. In this case, the parties were married in 1989 and divorced in 2006. The parties had joint legal custody of their two children, and they primarily communicated through text messages to limit confrontations. Unfortunately, even the text messages became a source of grief.

After Father discovered that he and his current wife had missed his daughter’s basketball banquet, Father became very upset and his current wife sent several text messages to Mother. The first text messages were sent between 6:50a.m. to 9:00a.m.. Later, Father’s current wife again sent Mother eight text messages between 7:32a.m. to 8:19a.m.. A month later, Father sent Mother 18 text messages from 6:50a.m. to 11:34a.m.. Several days later, Father again sent Mother texts from 8:45a.m. to 9:51a.m.. In response, Mother brought a claim for harassment due to the excessive texting.

The trial court agreed with Mother, believing that the conduct of Father qualified as harassment because “he communicated with her in a manner that was likely to cause annoyance.” Additionally, the trial court also asked Mother about any incidents of domestic violence that had occurred between her and Father. Mother stated that Father had yelled in her face while in the house during the time of the divorce; however, the police were never called. Father appealed the decision of the trial court.

The appellate court reviewed the facts brought into evidence from the trial court and analyzed them in accordance with the New Jersey Harassment Statute, N.J.S.A. 2C-33-4, which defines harassment.

In light of the Statute, the appellate court held that the text messages from Father to Mother were not harassment because Father did not send the text messages for the purpose of harassing Mother. Furthermore, the appellate court noted that text messages from Father’s current wife should not have been included in the case, because they were not actually sent by Father. Moreover, the appellate court also stated that, while evidence of harassment was presented by Mother, there was not enough evidence that Father’s conduct deserved treatment as domestic violence. Specifically, Mother did not demonstrate a history of domestic abuse by the Father. Rather, the incident showed that Father’s actions were an expression of anger during an emotional and stressful period of his life.

Although Father’s case ended up on the right side of the law, angry, sarcastic or mean-spirited text messages have no place in meaningful co-parenting. Certain behavior may not violate civil or criminal laws, but it could still be highly inappropriate.

Communications with an ex-spouse are often emotionally complicated and hard to maneuver. To ensure that you receive a fair and just outcome, contact an attorney that will be able to advise you on the best steps to take. In the meantime, avoid sending emotional text messages that later may come back to haunt you. Do not respond if you receive inappropriate messages, because you likely will become enmeshed in a never-ending back-and-forth exchange of non-productive messages.

Written by Elizabeth Smith, law clerk, and edited by Elizabeth A. Bokermann, Esquire, associate attorney, at Law Offices of Linda A. Kerns, LLC.

Go Phillies!

2011-10-07T10:49:00.000-04:00

We are in the spirit at the office! Go Phillies !

Helen Grispino, Legal Assistant Extraordinaire

Prepare now for custody issues during the upcoming holidays

2011-10-07T01:34:00.000-04:00

Divorced and separated parents face difficult issues during the holidays. If it is your spouse or ex-spouse’s turn for a holiday, this could be your first holiday without seeing your child, and that adjustment can be heart-wrenching. Additionally, your children will be facing new experiences, and perhaps struggles, because they are not spending the holiday with both of their parents. Here are some tips on how to navigate holidays and vacation schedules that will hopefully ease the transition:

1. Take into account how your family usually spends the holidays. If Thanksgiving dinner begins every year promptly at 4:00 p.m., you do not want to schedule an exchange of your children at 4:30 p.m.. You should also consider who should provide transportation.

2. Are there holidays or traditions that you celebrate but your spouse does not (or vice versa)? For example, if your family has a big celebration on Christmas Eve, perhaps, the children could spend Christmas Eve with your family and Christmas day with your spouse’s family. These options can provide fertile bargaining territory. Trading holidays on an annual basis (for example: you have Fourth of July in even years and your spouse has it in odd years) is also an effective way to negotiate.

3. Do you usually travel to visit out-of-town relatives? If yes, make sure you build enough time into the holiday schedule to accommodate appropriate travel arrangements.

4. Obtain your children’s school schedules at the beginning of the year and sort out school vacations and days off. The earlier you and the other parent come to an agreement, the easier it is for everyone, especially the children. Once the schedule is set, children can get excited about a trip with mom during spring break or seeing grandma at Thanksgiving.

5. If you or your spouse has a job that requires you to work on holidays, make sure that you factor that into your consideration.

6. Keep a check list, school schedule and yearly calendar handy when you think about and discuss these issues so that you consider all of the holidays, especially holidays that are important to your family. Here is a list of possible holidays for your reference:
Martin Luther King Day

President’s Day

Spring Break

Passover

Easter

Mother’s Day

Father’s Day

Memorial Day

Fourth of July

Labor Day

Columbus Day

Veteran’s Day

Fall Break

Rosh Hashanah

Yom Kippur

Halloween

Thanksgiving

Christmas Eve

Christmas Day

New Year’s Eve

New Year’s Day

Winter Break

Children’s birthdays

Parents’ birthdays

Siblings’ birthdays

7. Also, remember to consider family traditions that may not be associated with a particular holiday. For example, if your family takes an annual summer vacation to the beach with all of the cousins, then you should factor the vacation into your agreement so that you are not exposed to the risk of arguing about the vacation with your spouse in the future.

8. If you already have a blended family, make sure all custody agreements that you have work in conjunction with each other. For example, on Christmas Eve you do not want to be caught trying to figure out how you are going to drop off your children from your first marriage at their other parent’s house, while at the same time dropping off your children from your second marriage at their other parent’s house.

9. Once you and your spouse come up with an agreement, it needs to be put into writing, and then it should be incorporated into an enforceable court order. You can always negotiate changes between yourselves, but, in the event of a misunderstanding, you will have a set agreement on which to rely. Although you and your spouse can take this step on your own, the help of a family law attorney can make the process easier and produce a reliable, enforceable agreement for the future.

Written by Linda A. Kerns, Esquire and Elizabeth A. Bokermann, Esquire, attorneys of the Law Offices of Linda A. Kerns, LLC.

This is a new one . . . Divorce Cakes!

2011-10-06T14:08:00.002-04:00

Visit msnbc.com for breaking news, world news, and news about the economy

Helpful Tip Tuesday

2011-10-04T09:00:00.001-04:00

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

Review your health insurance plan and explore options available to you if you are covered by your spouse’s plan. Because that coverage ends at divorce, you will need to determine your other options. Sometimes people default and just simply decide to pay COBRA premiums to extend the pervious coverage. However, it can often be cheaper to simply obtain your own policy so explore what is out there.

In Pennsylvania, when is alimony awarded?

2011-10-03T09:00:00.007-04:00

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Unfortunately for litigants seeking solid answers, no firm answer to this question about alimony exists. Like many other instances in the law, an award of alimony depends on the individual circumstances of each case. Pennsylvania law does not provide for a formula for the calculation of alimony (either duration or amount) or strict rules as to when it should and should not be awarded.

Our statute provides the factors to be considered when awarding alimony, but, like in many other areas of the law, the subjective factors can be given different weight by different courts. Additionally, overall circumstances of the entire divorce case and of the parties play a part in the decision.

The statute provides that when deciding whether to award alimony and in determining the type, amount, manner of payment and duration, the court shall consider the following factors:

1. The relative earnings and earning capacities of the parties.

2. The ages and the physical, mental and emotional conditions of the parties.

3. The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

4. The expectancies and inheritances of the parties.

5. The duration of the marriage.

6. The contribution by one party to the education, training or increased earning power of the other party.

7. The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodial of a minor child.

8. The standard of living of the parties established during the marriage.

9. The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.

10. The relative assets and liabilities of the parties.

11. The property brought to the marriage by either party.

12. The contribution of a spouse as homemaker.

13. The relative needs of the parties.

14. The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under Section 6102 (relating to definitions).

15. The Federal, State and local tax ramifications of the alimony award.

16. Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.

17. Whether the party seeking alimony is incapable of self-support through appropriate employment.

23 Pa.C.S. §3701

Even knowing the law, no one can predict with any reasonable degree of certainty and accuracy as to an alimony award, due to the subjectiveness of the ultimate trier of fact. However, experienced lawyers, who have practiced in the county where the case is litigated, can often analyze the issue in the particular case and guide their clients on this issue and make an educated, informed estimate.

Last spring, the Superior Court of Pennsylvania, our appellate court, decided an appeal from the trial court of Allegheny County wherein a wife challenged the alimony the trial court awarded her. Wife felt that the duration of the alimony was simply too short because she wanted to stay out of the work force so she could continue to home school her children.

The facts of the case revealed that husband and wife had two children. Wife was home schooling both children, who were approximately 14 years and 7 years old at the time of the appeal. Wife had been a teacher and left the work force in order to home school the children. The parties lived frugally in order to manage on one income. However, upon the separation and divorce, in order to continue home schooling, wife requested at least $700 a month in alimony until both children graduated from high school, in addition to child support. Husband objected on a variety of grounds including that they were no longer an intact family and they could not afford to continue to have wife out of the work force.

The trial court awarded wife $800 per month in alimony, which was $100 more than she had initially requested but the term was much shorter which would require her to enroll the children in traditional school, return to the work force relatively quickly and become self-supporting. Accordingly, wife appealed the trial court’s order. The Superior Court agreed with the trial court’s reasoning that it was unreasonable for wife to remain unemployed while husband continued to support both households for essentially the next twelve (12) years, until the younger child finished high school. Accordingly, the Superior Court did not disturb the discretion of the trial court on the alimony issue.

Divorce requires that the income that once supported one household must now be spread over two. In order to effectuate this division of income, many families must live significantly more frugally than they did as an intact family. Of course, if one or both parents increase their income, the family may be able to maintain a comparable lifestyle but often without the luxury of a stay at home parent.

This financial reality exists in almost every divorce case, even those involving significant incomes. Simple math often dictates the outcome: either divide the existing income between two houses and live more simply or increase the income so that more is available.

The trial court even noted that home schooling probably benefitted the parties’ daughter. However, alimony is a financial question - not a test of the best interests of the child. The economic realities in this particular case made home schooling a decision that was better suited to an intact marriage where one working spouse can support the household. The name of this case is Kent v. Kent, 2011 Pa.Super. 55 (2011), if you are interested in reading the complete Opinion.

The morning commute blues

2011-09-30T02:11:00.008-04:00

Photo by Carla Fisher, M.D.

Figuring out custody schedules, transportation and coordinating packing your children's clothes for custody time with the other parent certainly does not even enter the minds of people contemplating having children. However, back and forth between parents's houses, morning commutes that change depending on the parental custody day and packing bags become the norm for some children.

You might not be able to change the custody situation - either you are not getting back together with the other parent or the current schedule is here to stay for the foreseeable future. Perhaps the time has come to make the best of a bad situation so that your children's lives can be made a bit more manageable.

Helpful custody suggestions:

(1) Savor that morning commute time (or any commute time). Sometimes a car ends up being the absolute best place to have a sincere, thoughtful conversation with your children. Why? Because the issue of eye contact is avoided and kids (and adults) can sometimes use this opportunity to communicate without negative verbal cues. I remember one case where my client insisted that the other parent provide all of the transportation. I advised her against it as she not only lost control of some of the comings and goings of her child, she also missed out on some great one on one time with a chance to speak with him without all of the distractions of home. (Of course, your car also has to be a distraction free zone meaning no videos, video games, cell phones or other attention diverting gadgets.)

(2) Generally speaking, I think it is usually a great idea for the receiving parent to pick up. That way, you control the time when your child will be home -- no more waiting at the front door - wondering why the other parent is late. Additionally, picking up your child from the other parent's home gives you an opportunity to simply ask, "how was the visit" in a non-threatening, natural and chatty manner. Once the child returns to your home, he/she will want to begin to immediately settle back in and move on. This does not mean you should be an investigator, interrogator or sleuth about what goes on between your child and the other parent. However, you should do everything you can to keep the lines of communication open and let your child know that they can speak freely about whatever is going on in their lives.

(3) Try to have duplicates of the basics, if you can afford it. This can cut down on the packing that your child has to do between households and help she or he feel as if they truly have two homes -- they are just not visiting two houses.

School form shenanigans

2011-09-28T09:00:00.001-04:00

Back to school time produces paperwork and lots of it. Permission slips, calendars, instructions, emergency contact forms and to-do lists travel home with children to be read, filed, reviewed, filled out and returned by parents. Are you the custodial parent who is tempted leave your ex’s name off of every school information form as a not so subtle message that he or she lost their significance in your child’s life? Or are you the non-custodial parent who wants to be involved yet is thwarted at every turn by a custodial parent who ignores your existence?

For the custodial parent:

DO include the other parent’s name on all forms. If there are special circumstances, such as the individual lives too far away or is rarely involved, note that on the form. However, simply leaving the person’s name off the form or substituting someone else’s name, such as your current paramour or spouse, will only make more problems for you in the end. If you want to include a step-parent on the form, add them on but do not substitute them for the actual parent.

DO provide the other parent with information necessary at the beginning of the school year, such as websites, teacher’s names, calendars and other information having to do with the school year. If the school allows double notification such that all communication will go to both parents, opt for that. This way, you will not feel throughout the school year that it is your job to continue to update the other parent. Once they have the information, it will be up to them to follow through.

DO not badmouth the other parent to the teacher, school administrator or other parents. You will only end up looking less than honorable. The other parent’s action or inaction will speak for itself and does not need your editorial comment.

For the non-custodial parent:

DO contact the school in the beginning of the year and get to know your child’s teachers, even if you cannot attend the back to school night or other school events. Letting the teachers know who you are and your contact information will go a long way in thwarting the custodial parent from excluding you from your child’s academic life.

DO get familiar with the school’s website, calendars and procedures. Most of this information is available online and if it is not, simply contact the school. Understand your child’s daily schedule, vacation days and early dismissals. You will be a more involved parent if you can speak knowledgeably to your child about their school experience.

DO not be passive and simply wait for the school or the custodial parent to contact you and spoonfeed you information about your child’s academic endeavors. It is your job as a parent to be involved and seek out the information.

Your child will benefit.

Iron out these details at the beginning of every school year. Parents who cooperate will be better resources for their child who can then concentrate on being a good student.

Helpful Tip Tuesday

2011-09-27T09:03:00.000-04:00

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

Beware of text messaging. While forms of communications such as Facebook, Twitter, text messaging and email can open up ways for people to interact positively, too often in divorce situations, these tools are used as weapons. Think very carefully before you lash out against your soon to be ex-spouse or you could be explaining those nasty test messages in court.

Hot off the press.

2011-09-21T00:58:00.000-04:00

Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns LLC recently wrote an article entitled "Avoiding the 'Smile and Nod' - Making Legal Terms of Art More Accessible to Your Clients." The article was published on the front page of the Summer/Fall 2011 issue of Pennsylvania Bar Association Young Laywers Division's At Issue Newsletter. To read the article, click here.

Helpful Tip Tuesday

2011-09-20T09:00:00.001-04:00

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

Divorce is painful. Whether the divorce was mutual or initiated by only one of you, a divorce often involves unhappiness. Unwinding the financial issues can be excruciating while you are still raw from the dissolution of the relationship. Parents must address the arrangements for their children which can be fraught with heated battles and uncertainty. Both spouses face life altering transitions. Consider consulting with a qualified therapist to help guide you through the emotional upheaval and roller coaster of issues.

Helpful Tip Tuesday

2011-09-13T09:00:00.003-04:00

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

Beware of free divorce advice. Friends and family members often provide their opinions on your divorce. While usually well-intentioned, this advice may not be accurate. Your marriage was unique and your divorce will be too. While other people’s stories, perspectives and strategies can help you become better informed, remember that, like snowflakes, no two divorces are alike. You will need to decide what is best for your particular situation. Consider paying for a comprehensive consultation with an attorney experienced in divorce law in the county in which you live.

September 11

2011-09-11T03:27:00.003-04:00

We salute the firefighters who ran towards the burning buildings while the victims were running out, the first responders who worked so bravely to rescue the victims, the Ground Zero workers who identified the remains, our armed forces who continue to fight so valiantly to keep us safe, law enforcement professionals who remain on alert, all of those who have lost their lives defending our country and all of the victims of the horrific terror attacks, as well as the survivors who continue to feel the pain of their loved ones lost to unspeakable violence.

Thought of the Day

2011-09-09T09:33:00.000-04:00

"Unkindness almost always stands for the displeasure that one has in oneself."

- Adrienne Monnier

Helpful Tip Tuesday

2011-09-06T10:00:00.002-04:00

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, obtain a credit report on yourself. A credit report can alert you to accounts or debts of which you may not be aware. It can also serve as a road map for the loose ends that you need to tie up in your divorce. Go to www.annualcreditreport.com to learn how to order your report. Remember, your credit report is just one piece of the puzzle - there may be other debts out there. But this is a great place to start.

The ugly side of custody battles

2011-09-03T01:09:00.002-04:00

We have all heard sad rumors of the nasty and bitter actions of parents dueling for custody. Unfortunately, this ugliness may have reared its head in the worst sort of way for a Pennsylvania family. You can read more about their story here.

Arguing with an umpire

2011-08-30T01:54:00.002-04:00

When we are young, we are taught to respect persons of greater authority in our lives. For people going through litigation, it is important to remember this important life lesson for several reasons.

Judges deserve the respect of both the lawyers and litigants that appear before them. Granted there are always exceptions to the rule, in the sense that deviant individuals, including judges, always exist. However, by and large, the judges of our court system are well-educated, experienced professionals. Judges understand and honor the law, and, usually, they show due respect to both the lawyers and litigants that appear before them. Additionally, judges, especially in family court, have broad discretion in their decision-making abilities. Showing respect, civility and courtesy to the individual who will be making decisions about your case can only help your position.

Obviously, not all decisions that judges make align with the decisions that we wish they would make; however, rarely are they outside of their scope of discretion. Our justice system gives judges significant power to make decisions. Judges often profoundly impact the lives of the litigants in their courtrooms, and most understand and appreciate the significant impact of their role. A client's demeanor and respect, or lack thereof, for the judge could significantly sway a judge.

Litigation, whether related to divorce, custody or support, is emotional, tiring and often overwhelming for clients. By the time clients arrive for their day in court, many of them are at the end of their ropes. I believe this is why clients are often quick to blame and abuse judges when the results are not as desirable as hoped. Certainly, I can sympathize with clients when I think that a judge did not make the correct or appropriate decision. However, clients do themselves no favors by blaming judges. When clients angrily lash-out at judges, particularly when they are within earshot of the judge or other court staff, they are, in all likelihood, doing themselves harm in the litigation, especially if they will appear before that judge again in the future.

Attacking the person who is in charge of your future is not productive. Although it may give you temporary relief to lose your temper or lash out, such behavior could cause the judge to look unfavorably upon you. Second, particularly in cases involving children, judges take seriously the responsibility of deciding the best interests of a child. Acting out of anger or frustration in the presence of a judge or other court administration may cause the judge to question whether the client is a fit parent to promote the child's best interests. Lastly, lashing out ultimately does nothing to change the situation or make the client feel better.

Therefore, next time you attend court and find yourself on the tough-end of a decision, remember to separate the judge from the decision. Instead of attacking the judge, move on to other ways to try to better deal with the circumstances. Like arguing with an umpire at home plate after he has made a call, arguing or disrespecting the judge will not help.

Written by Elizabeth A. Bokermann, Esquire and edited by Linda A. Kerns, Esquire, of the Law Offices of Linda A. Kerns, LLC.

Clean up your web presence

2011-08-29T15:48:00.000-04:00

Here is a great site you can use as a guide to delete unwanted web accounts on sites like Amazon, Facebook, Monster, etc.

deleteyouraccount.com

The New Question: Who is your Mom?

2011-08-18T03:21:00.002-04:00

Artificial insemination, a technologically-advanced method that couples use to conceive, complicates the issue of identifying the parents because the process almost always involves more than one man and / or more than one woman. As medicine and technology constantly evolve, the law is often left struggling to keep up, especially in terms of parental rights. One way New Jersey has chosen to regulate parental rights of those that donate sperm, or are otherwise involved in the conception process, is the codification of the Artificial Insemination Statute. N.J.S.A. 9:17 - 44.

In E.E. v. O.M.G.R, a trial court case in New Jersey, the court held that an individual may not terminate their parental rights through a contract. E.E. v. O.M.G.R., 20 A.3d 1171 (2011). In E.E., the plaintiff was a single woman who wanted to become pregnant but did not want to go through the expense of purchasing sperm and going to a physician for the procedure. Instead, plaintiff was able to conceive through the use of a friend’s sperm, which was administered by plaintiff with a common kitchen turkey baster. After conception, both parties entered into a written agreement stating that the sperm donor chose to surrender and / or terminate all future rights and responsibilities to the child. Furthermore, the biological mother agreed to assume all financial responsibility. Once the child was born, the parties signed a Consent Order that vacated all of the parental rights and responsibilities of the sperm donor father. This Consent Order was then submitted to the trial court.

In E.E., the court held that each child has the right to security from two parents. Furthermore, although there are ways in which a parent may terminate his or her parental rights of a child, parental rights cannot be terminated by a simple contract. Specifically, parental rights may only be terminated in cases where:

• another party is willing to adopt the child,
• one parent is declared unfit or
• if the child is removed from the parent for cause.

Although the court recognizes that parental rights are established by a genetic relationship, the court also acknowledges that this is not always a controlling factor to parental rights.

Because New Jersey has an Artificial Insemination Statute, the court must adhere to the plain language within the Statute. Under the Artificial Insemination Statute, unless the donor and the recipient have entered into a written contract, the donor will have no rights or duties stemming from the conception of the child under the supervision of a licensed physician. However, because, in this particular case, there was no licensed physician who facilitated the insemination, the statute could not be applied.

Although the Artificial Insemination Statute does not cover the actions taken by this particular biological mother, the court still held in the biological mother’s favor. Specifically, the court awarded the biological mother sole custody of the child and denied the sperm donor any parenting time.

If you or someone you know has questions about parental rights, you should contact a lawyer who can appropriately serve your needs.

Written by law clerk Liz Smith. Edited by Elizabeth A. Bokermann, associate at Law Offices of Linda A. Kerns, LLC.

How much is the marital residence worth?

2011-08-13T01:28:00.000-04:00

A home is often a married couple’s largest asset, both emotionally and financially. In divorce cases, dividing, keeping or selling the marital home is often a bitter point of contention between the parties. When the parties decide to sell the home, but it is not sold immediately, many questions can arise. For example, New Jersey courts have had to examine whether the home should be valued at the date of divorce, at the date of selling the home or at some other date.

The Supreme Court of New Jersey ruled on the issue of date of valuation in May 2011 in Sachau v. Sachau, 17 A.3d 793 (N.J. 2011). In Sachau, during the course of the marriage, the parties had two children. Under the divorce agreement, mother was able to live in the house with the children until the youngest child turned eighteen years old or graduated from high school, whichever occurred later. Once the youngest child met the criteria, the house was to be appraised and listed for sale within thirty days. In 1984, the youngest child graduated from high school; however, no action was taken to sell the house over the next twenty-two years.

In 2005, twenty-one years after the youngest child met the trigger criteria, father was living on social security payments and was unable to support himself. Father filed a Motion to Compel requesting to sell the marital home and divide the proceeds of the sale. Both parties believed that the marital property should be sold; however, each proposed a different date for valuation. Mother proposed that the price of the marital property should be calculated in reference to the 1979 value of the house, which was the time of the parties’ divorce. Father believed that the house should be valued at the date of the triggering event, the graduation of his youngest daughter, in 1984. In the long run, neither Mother or Father’s date was chosen.

On review, the Supreme Court of New Jersey held that the Appellate Court incorrectly analyzed Pacifico v. Pacifico, 920 A.2d 73 (N.J. 2007). Under Pacifico, absent an agreement by the parties stating a particular date, the marital property should be valued at the actual date of the sale. The Sachau divorce judgment did not assign a particular date or value to the marital property. Therefore, under Pacifico, the marital property should not be valued at the price it would have sold for in 1979. Rather, the marital property should be valued at the date of actual sale, more than twenty years after the divorce. The Supreme Court clarified that, under Pacifico, the marital residence should only be assigned a value at the time of the triggering event (i.e.: the child’s graduation) if the sale of the home actually takes place at that time. In other words, the date of sale trumps other factors.

Ultimately, the Court held that the house should be valued at the date of sale and that the proceeds should be equitably divided between both mother and father.

In short, parties should place a date of valuation in their divorce agreement for the marital home. If the parties in Sachau had included terms regarding valuation, then there would not have been any substantial issue before the Court. However, because the parties in Sachau did not include a date of value, the Court chose to follow Pacifico, which holds that valuation should occur at the time of sale.

Equitable distribution of property is often a complicated matter, and it is particularly important, to the extent possible, to anticipate future events when drafting an agreement. To ensure that you receive a fair and just outcome when navigating the divorce process, you should contact an attorney who will be able to help you create an appropriate strategic plan.

Written by Liz Smith, law clerk at Law Offices of Linda A. Kerns, LLC. Edited by Elizabeth A. Bokermann, Esquire, associate at Law Offices of Linda A. Kerns, LLC.

How Not to Act in a Divorce and/or Custody Action

2011-08-01T11:01:00.000-04:00

Today's Wall Street Journal featured an article describing a study where a simple facial recognition program combined with Facebook could successfully identify about one-third of the random photos submitted through the program. Of those identified, the program could also correctly state the first FIVE numbers of the social security number for 27% of the people, by using information people made available on Facebook such as their birthday and place of birth. Scary - right? Especially because the first five numbers are supposed to be the really secret ones! (Tech Today: Using Facebook and Facial Recognition to ID Random People, The Wall Street Journal, August1, 2011.)

Oversharing online has become an epidemic and the more that seems to be written, warning people to be careful, the more people tend to ignore the advice. The Wall Street Journal article demonstrated how piecing together random bits of information can reveal what was heretofore personal and private information. Additionally, there are the circumstances where people pretend to be something they are not, and use your online information to scam, hurt or fraud you. The recent movie, "Trust," illustrated how a teenager can be tricked into a life threatening situation when a predator uses information he gained online to ensnare her.

Of course, there are always the people that purposely put every thought, feeling and minutiae about their lives out there for everyone to read. In a divorce and/or custody situation, this can be especially devastating to all involved, especially the children. I remember I was involved in a case where one of the parents discussed on-line how the pregnancy was not intended and how they really did not even truly care for the other parent. Their child, now school-age, will certainly be thrilled when he, or perhaps his friends, find this rant regarding the less than loving circumstances of his entry into this world.

Because divorce and custody battles can be so frustrating and expensive, some litigants become so consumed that they vent to everyone and anyone who will listen. Publishing your complaints on-line exposes you to an unlimited pool of listeners, some of whom will undoubtedly be sympathetic. However, it is never a good idea to air your dirty laundry so that your children, and also their friends, teachers, coaches, employers and any one else who may know them become privy to the sordid details between you and your ex-spouse.

A father in Bucks County currently feels that because he interprets the free speech clause of the First Amendment to the Constitution as permitting him to say whatever he wants, about whomever he wants, in a public forum, that he should be allowed to do so, consequences be damned. Read the story in the July 31, 2011 edition of the Philadelphia Inquirer: Divorce blog's rancor erupts in free-speech dispute. After the trial court ordered the father to take down his blog, classily titled ThePsychoExWife, he turned the dispute into a free speech argument and is seeking appellate review. However, before congratulating him as a civil rights crusader, remember that he is fighting for the right to publish disparaging, mean-spirited and downright ugly and unkind comments about the mother of his children, with whom he shares custody. Even if all of his allegations are true (and he dutifully comments on everything she does, from missives regarding her alcohol abuse, commentary on her parenting choices of feeding the children fast food and letting them watch television to digs regarding her personality), is his online ranting and raving helping the children? And even if there were potentially available "measures to keep [the children] from viewing [the website]," does that really protect them? Is school and making friends and growing up not difficult enough without your family's nasty squabbles being publicly available for all to see?

This father should grow up, simmer down and put his children's well-being first and foremost. These children need a parent, not a misguided, mean spirited free speech crusader.

Quoted

2011-07-29T11:24:00.000-04:00

A July 21, 2011 article titled "How to Work With Someone After A Romantic Breakup," on Forbes.com (an update to a previous article on the same subject, quotes Linda.

Tips when paying off debt

2011-07-26T01:33:00.000-04:00

Paying off debt can be an overwhelming and tricky process. Read this article for great tips and important reminders when paying down your debt.

Stay cool out there.

2011-07-23T01:23:00.001-04:00

Step-Parent ---- or Step-Problem

2011-07-22T11:20:00.000-04:00

In the midst of the divorce process, some of my clients have told me that they will NEVER MARRY AGAIN. They are FINISHED. They will not even try DATING. Eventually though, wounds begin to heal and people wade back into the dating pool.

Other clients immediately begin dating and sometimes even jump into a new and serious relationship.before their spouse knows that the marriage is over.

Whatever the pace, new romantic partners become part of the equation. When you have children, navigating your new relationship along with child custody issues can be fraught with peril.

I always tell my clients to take it slow. Introducing someone new to children who have seen their parents separate and their life dramatically changed is just one more stressor in an already difficult time. Separated parents with custody arrangements already have reduced time with their children. Involving your new romantic partner in your precious and limited time with your child means that your child does not have your undivided attention. Additionally, if your new relationship does not last, your child suffers another loss --- yet another person leaves their lives.

The author of this article: Stepfamilies: the Good, the Bad, and the Ugly, was thrown into the role of stepmother at the tender age of twenty-three. Now in her forties, she can look back and recognized how she resented her husband's child and even competed with this little boy for her husband's attention. This raw, honest and reflective account is a must read for anyone with children who is separating from the other parent.

Daily Thought

2011-07-14T11:01:00.000-04:00

Yesterday is a canceled check.

Tomorrow is a promissory note.

Today is the only cash you have.

SO SPEND IT WISELY.

- Kay Lyons

Garbage in, garbage out

2011-07-12T14:41:00.000-04:00

Tip of the Day

Be careful with Online Support Calculators!

In both Pennsylvania and New Jersey, we calculate child support using guidelines published in the Court Rules. Both the Pennsylvania and New Jersey Child Support Guidelines are the result of exhaustive research by lawyers, actuaries and other professionals to determine the amount of child support paid. However, both states have exceptions and deviations that can cause the Court to award a number different than the simple calculated number. Additionally, income can be a matter of interpretation --- and parents can engage in years of litigation when disagreeing over what constitutes income. Certain extras, such as tuition or child care, are usually calculated separately and apportioned between the households.

Most attorneys use software programs in order to calculate anticipated child support and provide their clients with guidance. However, as a rule, my office never simply relies on the software. In addition, we always calculate child support by hand, to make sure we are not missing any of the deviation factors or other issues that can cause child support to vary.

Some child support calculators can be found online but they vary widely in accuracy. In addition, if you input an incorrect number, you can end up with a figure that is vastly different than what a court would calculate.

Accordingly, beware if you choose to use online support calculators. They may be a useful tool as a starting point, but unless you understand the many deviation factors, ways to determine income available for support and the many exceptions and additions to the basic rules, you could wind up with a number that is way too high ---- or way too low.

Daily Thought

2011-07-08T10:59:00.001-04:00

Worry often gives a small thing a big shadow.

- Swedish Proverb

Marriage is a Horse Race

2011-07-07T12:26:00.002-04:00

Warning: Salty Language!

Daily Thought

2011-07-06T10:58:00.001-04:00

Life

is like riding a

bicycle,

to keep your balance,

you must keep moving.

- Albert Einstein

For all of us who bleed red, white and blue . . .

2011-07-04T01:52:00.001-04:00

Happy Birthday America!

You have to love a nation that celebrates its independence every July 4, not with a parade of guns, tanks, and soldiers who file by the White House in a show of strength and muscle, but with family picnics where kids throw Frisbees, the potato salad gets iffy, and the flies die from happiness. You may think you have overeaten, but it is patriotism.

~Erma Bombeck

My God! How little do my countrymen know what precious blessings they are in possession of, and which no other people on earth enjoy!

~Thomas Jefferson

Jack of all trades, but master of none . . .

2011-06-29T12:50:00.000-04:00

If you broke your foot, would you seek treatment for a cardiologist?

If your Honda Accord experienced engine problems, would you take it to a mechanic specializing in repairing diesel trucks?

If you were looking to purchase a commercial property, would you use a realtor who specialized in selling residential condominiums?

The answer to all of these questions should be "no." Sure, a cardiologist could probably treat a broken foot -- he is a doctor after all and is trained in all types of medicine. A truck mechanic could probably find his way under the hood of a Honda Accord. Additionally, a residential realtor could check out commercial listings and show you potential properties. However, you are asking all of these individuals to perform a task that they may know how to do in a general sense but they cannot bring the benefit of specialized training and experience to the task. Therefore, in all likelihood, you are not being well-served.

Similarly, to be well-served by your lawyer, you should choose someone who regularly practices the type of law for which you seek representation and someone who practices in the county where your case is litigated so that he is familiar with the local rules and procedures and even the court staff and judges.

Most of my practice centers around the various types of family law (divorce, child support, child custody, division of assets, alimony, separation agreements, etc.) At this point in my career, I have handled hundreds and hundreds of cases and I have the benefit of that experience.

In addition to my experience, I regularly attend Continuing Legal Education Seminars on family law matters in both Pennsylvania and New Jersey. I am a regular at the Pennsylvania Bar Association Family Law Section two yearly meetings that include two to three days of seminars, conferences and social gatherings for Pennsylvania Judges and attorneys. New Jersey holds similar meetings and a try to attend one of their main events each year. When my schedule permits, I attend local bar association meetings in the Pennsylvania Counties where I practice (Philadelphia, Bucks, Chester, Montgomery and Delaware). I am also a member of the Philadelphia and Montgomery County Inns of Court in which Judges and attorneys meet monthly nine months out of the year for continuing legal education and discussions on trends in the law.

Getting back to my cardiologist or realtor example, I imagine those professions have meetings and educational opportunities similar to what is available to attorneys. Accordingly, in addition to the generalized knowledge that comes with a particular profession, individuals specialize and become proficient in their particular area of practice.

In deciding who you will hire as a family law attorney, you may be tempted to hire the person who did a great job on your personal injury or medical malpractice case or perhaps someone who assisted a friend with a complex business matter. However, why hire someone who is only dabbling in family law? You will be much better served by someone who actually practices family law in the county where your case is being litigated.

Child custody when the parents live in different states.

2011-06-21T01:46:00.000-04:00

Child custody disputes are often a companion to divorce. Although a divorce in and of itself is a stressful and tiring situation, child custody often can be even more overwhelming. Many factors go into a court’s decision when dealing with matters of custody. The best interests of the child is the primary factor that courts will consider. As part of that consideration, the courts will look to the needs and abilities of each parent. Furthermore, the schedules of the parents should be a consideration when deciding child custody, but the location of each parent should also be considered.

Recently, in Durning v. Kurdilla, the Superior Court of Pennsylvania discussed the issue of child custody when the parents live in different states. The Court held that although the parents lived in different states, the mother should have primary physical custody and should be able to relocate with the child to North Carolina.

In this case, the child lived with mother for the majority of the child’s life. Under the child custody agreement, mother and father shared legal custody; however, mother had primary physical custody. Mother also received the right to relocate to Alaska with the child. Because mother lived in Alaska and father lived in Pennsylvania, father was granted partial physical custody for the summer months.

While in Alaska, mother became ill and asked father to watch the child while she underwent treatment. Father was unable to go to Alaska to care for the child due to economic concerns associated with the cost of travel. Accordingly, the child’s maternal grandmother took the child back to Pennsylvania, and took care of the child while mother was sick. During the child’s stay in Pennsylvania, the maternal grandmother allowed the paternal grandparents to exercise overnight partial custody. Rather than return the child to maternal grandmother after an overnight visit, father decided to keep the child with him. Father then filed a Petition to Modify Custody in order to attempt to obtain primary physical custody of the child. When mother recovered, she traveled to Pennsylvania to pick up the child. Once there, father refused to allow mother to resume custody of the child.

The trial court entered a final custody order awarding the parents joint legal custody of the child, while awarding shared physical custody of the child on an alternate week schedule. However, by awarding this custody agreement, the trial court overlooked the fact that mother was not a Pennsylvania resident. Rather, mother was still a resident of Alaska, and soon to be a resident of North Carolina. Therefore, the trial court effectively ordered that the child continuously travel.

On review, the Superior Court of Pennsylvania vacated the holding of the trial court. The Superior Court performed a best interest of the child analysis to assess the custody arrangement. Under this analysis, and in conjunction with other factors, the Court found that it was in the child’s best interest to be with mother. Specifically, the Court held that shared physical custody of a young child by parents who do not live near each other does not create an environment of stability at home or at school. Furthermore, the Court held that custody agreements should only be altered when they are no longer in the best interest of the child. Although the Court looked at several factors, it placed significant emphasis on maintaining the home life that the child knew.

The Court also reviewed mother’s anticipated move to North Carolina from Alaska because of mother’s husband’s military base change. Applying the Gruber factors, the Court held that mother’s move was not on a whim, nor were her motives questionable. (Note: Recently, Pennsylvania overturned Gruber by specifically outlining custody relocation standards in the new custody statute.) Moreover, mother’s move to North Carolina from Alaska made it easier for father to see child if he chose to exercise his visitation options. Therefore, the Court saw no problem with the relocation of mother and child to North Carolina.

Ultimately, there are many considerations for the courts when deciding custody and relocation cases. If you think that a change in custody would be best for your child, or you have a custody order in place and are considering moving, then you should contact an attorney to discuss your best course of action.

Written by Liz Smith, law clerk at Law Offices of Linda A. Kerns, LLC. Edited by Elizabeth A. Bokermann, Esquire, associate at Law Offices of Linda A. Kerns, LLC.

Tips for making divorce easier on your children

2011-06-16T03:23:00.000-04:00

When you go through a divorce, it is obviously and understandably a difficult transition for your children. Read this article for some tips on how to make the process easier for your children.

Other persepectives

2011-06-13T03:47:00.001-04:00

The Psychology Today website contains links to a plethora of articles about all aspects of divorce. Check it out here.

The real problem underlying Congressman Weiner's Twitter photo scandal

2011-06-12T15:46:00.002-04:00

The Weinergate scandal (Congressman tweets a photo of himself in his boxer shorts and then denies it, blaming it on a hacker) comes as no surprise to anyone in my field. Day in and day out, clients come to divorce lawyers with scandalous and embarrassing emails, photos, Facebook pages, text messages and lists of tweets of their own making (or from the hands of their spouse). It gets worse with every incident, and this type of digital diarrhea makes emotional and complex domestic relations matters even worse.

I have some really obvious questions about the Weinergate scandal that will probably never be answered. For instance, does he think sending a photo of his dingy boxer shorts actually qualifies as flirting? Exactly what kind of a woman does he want to attract -- and are there really women out there who would be flattered or would welcome such a pathetic come on? My real concern, however, lies with Weiner's judgment --- do we really want someone who cannot manage their online presence to be in Congress, proposing and voting on legislation that significantly impacts our country?

As of the time I am writing this post, Weiner continues to refuse to resign, despite an increasing chorus of his colleagues joining together, urging him to leave Congress and get help. He apparently is attempting to get help, and is taking a leave of absence, but so far he refuses to actually resign.

The Weiner shenanigans continue to fuel our twenty-four (24) hour news cycle. Some commentators express wonder at Weiner's profligate use of social media -- how did he have time to continuously photograph his private parts and send them through cyberspace. (Side note: they are called private parts for a reason!)

The sheer volume of his cyberspace antics does not come as a surprise to me, or, most likely, to most divorce lawyers. In many cases, when clients present me with scandalous and embarrassing internet oversharing, my first thought is: where do people find the time? Presumably, if you are working and managing your own life and that of your family's, you generally do not have time to play with your camera phones all day. Unfortunately, this means that other aspects of their lives are not getting the attention they deserve. Their own personal lives, their loved ones and/or their work become victims of neglect. Because excess of anything can often signal a much bigger problem, I think that Congressman Weiner's wife, family, friends and constituents should consider that his camera phone/"sexting" fascination is only the tip of the iceberg.

Thought of the Day

2011-06-10T08:23:00.002-04:00

"The only causes of regret are laziness, outbursts of temper, hurting others, prejudice, jealousy and envy."

- Germaine Greer

Take Action at the Threat of Foreclosure

2011-06-07T17:47:00.000-04:00

If you have a mortgage you cannot pay, the worst thing you can possibly do is ignore the problem.

Yet, this is how most people react -- and they dig themselves deeper. This past weekend, the Philadelphia Inquirer included a great article from their Real Estate columnist, Al Heavens on how to react to the possibility of a foreclosure. His article, Home Economics: What to do when foreclosure looms, is worth a read.

Daily Thought

2011-05-26T10:11:00.000-04:00

"You do too much. Go and do nothing for a while. Nothing."

"Happy Memorial Day Weekend."

- Lillian Hellman

Food for thought

2011-05-23T01:57:00.001-04:00

If you are struggling in your relationship, read this article for some food for thought.

There are many people who come and go . . .

2011-05-20T17:04:00.000-04:00

and some of them really make a difference in our lives!

Thank you to my law clerk, Elizabeth C. Early, who graduated from Temple University Beasley School of Law yesterday. Today is her last day at my office as she must start studying for the Pennsylvania and New Jersey Bar Exams which she will take in July. Then she is off to Atlantic City for a year where I am proud to say that she will be the judicial law clerk to the Honorable William C. Todd, III for the 2011-2012 court term. I was Judge Todd's judicial law clerk for the 1998-1999 court term and it was absolutely the best experience a newly minted lawyer could have.

She gave me the perfect going away gift today -- Elvis wine glasses. As someone who has been to Graceland five times and enjoys good wine, this is the perfect gift.

We bought her a super cool Keurig coffee maker (necessary equipment for anyone who will be enjoying two straight months of non-stop bar exam preparation.) We also got her Krispy Kreme donuts!

I have mentored many students and young lawyers and I am especially proud of Liz -- she reminds me a bit of how I was way back when when I graduated from law school. I loved the law and was excited to become a member of what is a truly honorable but challenging profession. I see the same sparkle in Liz's eyes and I am honored that she will soon become a member of the Pennsylvania and New Jersey bars. She will be a credit to this profession.

I still love the law today -- perhaps more so than I did when I first started - if that is even possible. I am absolutely thrilled with my career, my practice, my office and my accomplishments and I wish the same bright future for Liz. She will be an asset to Judge Todd's chambers and her future clients will be lucky to have her. Our new law clerk already started, a bright third year law student from Villanova -- Liz Smith. She has big shoes to fill but I am confident she is up to the challenge. Luckily, she is also named Liz so I won't have to make too much of an adjustment.

Good Luck Liz! Godspeed!

How to Prepare for Family Law Mediation.

2011-05-18T02:12:00.000-04:00

Some divorcing couples anticipate nastiness, escalating expense and out of control adversity in divorce, child custody and child support litigation. To avoid the unpleasantness, some couples try mediation, which is when you hire a neutral person is to help you reach a settlement. However, mediation simply does not fit every case. Additionally, there are times when one person’s idea of a fair or acceptable resolution is far removed from the other party’s idea, and a mediation session will only be little more than another forum for griping.

All that said, some couples can productively use mediation to settle some or all of the issues between them. However, you must be prepared. Here are some tips for how to make your mediation successful:

1. Understand that for mediation to work, both parties must approach it in good faith and have some semblance of urgency that they are working towards a resolution. If both parties are not committed to making mediation work, it will be a useless exercise. The parties must also remember that the result of mediation is often a creative solution to their conflict tailored to their individual needs and not necessarily the result that the parties would obtain were they to go through the court system.

2. Remember that mediation begins with your initial contact with the mediator whether it is a phone call, email or in person meeting. Make a good impression on the mediator so that you will be reviewed favorably.

3. The mediator should set the tone and procedure for the mediation sessions, as well as the schedule and ground rules. Follow the mediator’s lead. During a telephone call or meeting, always have your calendar ready and all documents that the mediator requested you provide. Additionally, attempt to be as cooperative and constructive as possible.

4. Different mediators manage their cases in different ways. However, you should be:
a. Ready to discuss the facts of your case in a non-confrontational and plain-spoken manner. Rhetoric, personal attacks and nasty comments will not help you to resolve your matter peacefully.
b. Understand your own needs and interests. Some people try to go into mediation without an understanding of their own goals and what they wish to accomplish.
c. Be aware of the other party’s position so that you will be ready to react and present your counter-points.
d. Understand what issues you might already agree upon with your ex-partner. Checking off items that have been resolved can give both parties a sense of accomplishment and satisfaction.
e. Plan for any compromise or trade-off. Sometimes something may be way more important to the other party than it is to you; thus, you should be ready with a list of those items or issues that you may be able to trade for something that has more value to your particular situation.

5. Remember that mediation has its limitations. If there are significant legal issues, such as the interpretation of a Prenuptial Agreement, or the value of a closely-held business or facts in serious dispute, such as income of a party or the existence of an asset, it may be unlikely that mediation will help the parties come to a meeting of the minds. The goal of mediation is a satisfactory settlement. Your mediator is not a decision maker, a trier-of-fact or a judge; therefore, so do not expect a decision. Manage your expectations as to what can be reasonably accomplished or resolved in mediation.

6. Understand the requirements of mediation such as the documents that will be required to be exchanged and the procedure to be used in the sessions. You will be less nervous if you have a firm grasp on your role.

7. Despite parties’ best efforts, mediation sometimes simply does not work out. The parties then proceed to trial or even arbitration. Accordingly, prior to beginning the mediation, both parties should agree in advance on whether anything said or exchanged in the mediation will be admissible later at trial or can be used against a party. Additionally, the parties may agree in advance on what documents are considered confidential.

8. Money is always a hot button topic. When couples have children, sometimes it is more productive to first mediate custody issues and then move on to unwinding their financial lives. Once parties have an understanding of how the custody arrangements will work out with their children, and feel secure in that area, they may be more amenable to discuss financial issues. However, when a parent is worried about how often they will see their children or their children’s stability and security, they often have trouble focusing on the economic issues.

9. Make sure your perspective and case is reasonable and rational. Insisting on a demand that is so high or completely out of the realm of possibility that the other side would be foolish to agree, only serves to inflame emotions and telegraph a message to the opposing party and the mediator that you are more interested in the fight than the resolution.

10. Have an understanding before going into mediation about how the results will be recorded or reported. Some people believe they have a deal in mediation and only find out later the other person changed their mind, or refused to sign a written agreement. Understanding these ground rules before you start can help both parties avoid wasting their time.

11. Family law situations are, by their nature, often confrontational and highly personal. Despite the inherent hurt feelings in these situations, do your best to be polite, professional and cooperative. You are there to persuade the other party to agree with you on a settlement. You are not there to convince the other party that you are right and they are wrong. In this regard, the mediator can be your ally if you prove your own trustworthiness and credibility.

Finally, and perhaps most importantly, consult with an attorney, familiar with family law matters, before you enter the mediation process. That way you will have an understanding of your rights and responsibilities and a framework in mind for what you perceive to be a reasonable settlement.

Divorce in Pennsylvania: Where do I start?

2011-05-11T02:51:00.006-04:00

I received a Divorce Complaint - what should I do?

First of all, do not panic. A divorce action is a lawsuit, which means that the papers can look foreboding and unfriendly. The process begins by one of the parties filing a complaint with the court and “serving” it on the other person. “Serving” the complaint on the other person simply means that he or she uses one of several methods to make sure that the other person receives the document. For example, the person could request that a sheriff “serve” the document to the other party. If you are served with a complaint and you do not respond, then divorce may proceed without your position being represented or having your rights protected.

You should consult an attorney upon receiving a divorce complaint so that you understand your rights and how the divorce process works. Additionally, you will want to receive guidance for an appropriate plan of action for your specific situation. For example, you may need to file an Answer and Counterclaim.

What is a legal separation?

In Pennsylvania, we actually do not have a formal process of “legal separation.” Separation simply means that you are living separate and apart from your spouse. Separation may occur because either both of you agree that you are separated or by one of you physically leaving the marital home. On the other hand, “separation” may occur, under some circumstances, even if you and your spouse are still living in the same residence. However, whether or not “separation” is established while still living under the same roof is highly fact specific, and you should consult an attorney if you wish to establish a separation but still live under the same roof as your spouse.

What is a Property Settlement Agreement?

Husbands and wives can enter into a written settlement agreement to settle and resolve the financial aspects of their relationships, including:

* division of assets, such as bank accounts, real estate and personal property;
* support payable to the other spouse and for the benefit of the children;
* responsibility for debts and legal fees;
* health and life insurance arrangements;
* custody of children and
* rights to inherit from the other.

This agreement is essentially a contract, but when the agreement is incorporated into a divorce decree or other court order, the agreement is enforceable as an order of the court, thereby providing the parties greater protection than would exist under contract law.

Certain provisions in the agreement concerning child custody and child support can later be modified by a court if one or both of the parties’ circumstances change. Therefore, you should clearly understand which provisions in your agreement are non-modifiable, and which provisions are subject to change. Lastly, and perhaps most importantly, each party must fully understand the other’s assets, income and debts in order to make this type of agreement enforceable. If full and fair disclosure is not provided, it is possible that, at a later date, one party could request to void the agreement.

What happens to the real estate that we own?

Most married couples own their home as “tenants by the entireties” or “joint tenants.” This form of joint ownership means that neither spouse can sell the property without the consent of the other spouse. Upon divorce, parties must decide whether they will sell their home or if one spouse will keep the home. If one person wants to keep the home, the parties must agree on a value and refinance the mortgage into the individual spouse’s name. It is not advisable to own property jointly with your spouse after a divorce; therefore, you should plan to sell or refinance the real estate.

What is “marital” property?

Pennsylvania divorce law provides that, generally speaking, all property acquired by either spouse during the marriage (with certain exceptions like gifts and inherited property) is “marital” property, regardless of which spouse’s name is on the property. For example, if a car is purchased in Husband’s name during the marriage, then the car is marital property, even though Wife’s name does not appear on the title. Additionally, if “non-marital” property that remains in one party’s name increases in value during the marriage, then the amount of the increase in value is considered a marital asset. For example, if Wife owned a home, in her name alone, that was worth $200,000.00 prior to marriage, and at the date of separation the home was worth $250,000.00, then, in most cases, the $50,000.00 increase in value would be considered a marital asset.

Marital property, if not divided by agreement of the parties, may be divided equitably by the court. Similarly, debts acquired during the marriage are generally considered marital, regardless of how they are titled. Debts will also be divided by agreement or by the court.

As with most issues in law, there are some exceptions to these general rules, and you should consult an attorney with any specific questions.

What about bank accounts?

If the funds in the bank accounts were acquired during the marriage, then, no matter whose name is on the account, both spouses have a marital interest in the funds. If one spouse takes all of the money out of an account, he or she may have to account to the other for the money, no matter who originally deposited the funds into the account or how the account is titled. As part of the divorce, the parties can agree to divide the funds or the court can equitably divide the funds, regardless of whose names were on the accounts. The rules are similar for other types of accounts, like 401(k)s, stock accounts or IRAs.

Can the court order us to attend counseling?

Yes. The court may require spouses to attend up to three counseling sessions with a qualified counselor. Additionally, in child custody cases, courts frequently order parents to attend co-parenting counseling.

Who pays the attorney’s fees?

The court has power to award preliminary counsel fees to the dependent spouse, which means that the independent spouse (the spouse with the greater earning capacity) has to pay for the dependent spouses’ counsel fees. However, this remedy is sparingly used by judges. Most of the time, both spouses are initially responsible for paying their own counsel fees. In addition, in the final order, after the property rights of the parties are determined, the court could direct the parties to pay their own costs and fees, or it may divide the costs and expenses equitably between the parties. During your initial meeting with your lawyer, you should discuss payment and recovery of costs and attorneys’ fees.

How much does it cost to get divorced?

The cost of a divorce depends on a variety of factors, including the issues involved and the cooperation of the parties. In addition to attorneys fees, parties may be faced with the following expenses: court filing fees, expert fees (such as accountants or appraisers), costs associated with refinancing or selling homes, counseling, copying and administrative costs.

Attorneys usually charge in the range of $200.00 to $450.00 an hour, and request an initial retainer fee of $2,000.00 to $5,000.00. If you have questions about how retainers work, be sure to discuss the process in detail with your attorney.

The total cost of the divorce cannot be predicted, but cooperating and trying to settle certain issues will help keep the total bill in check. You should always remember that at the end of the day, litigating every issue may not be the right financial decision for you.

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

What is the difference between arbitration and mediation in family law matters?

2011-05-04T02:57:00.002-04:00

Sometimes, rather than going to court to settle disputes, parties choose to arbitrate or mediate their issues.

The arbitration process is procedurally similar to court, except there is no judge. The arbitrator is a neutral attorney, hired by the parties, that listens to all sides and decides the case based on the evidence presented by the parties and their lawyers. An arbitration is less formal than a trial and the presentation may be streamlined. This procedure is usually simpler, faster and less expensive than litigation through the court system, because you are not subjected to crowded court dockets and burdensome court procedure. Additionally, the arbitration takes place in a private conference room rather than the courthouse, which can reduce the stress on the parties. Even though you are paying for the arbitrator’s time, you can actually sometimes save money in arbitration, because the process can be much more efficient. An arbitration decision is generally binding upon the parties, subject to terms upon which they agreed before beginning arbitration. In family law matters, both attorneys and their clients participate in arbitration.

Mediation is a process where a neutral mediator is chosen by the parties to assist them in reaching a mutually acceptable settlement of their dispute. Some mediators are attorneys, but others have no legal background. Sometimes, parties limit the mediation to only cover one aspect of their divorce, such as child custody, division of assets or support. Notably, the mediator has no power to decide the case or issue a ruling, but instead helps the parties come to their own agreement. Matters can be mediated even before parties start the court process. If no settlement is reached during the mediation process, the parties can then proceed to arbitration or litigation. Generally, mediation is not binding unless the parties draft and sign an enforceable agreement, intended to be entered as a court order. In family law cases, attorneys usually do not attend mediation with the parties. Rather, the parties meet with the mediator and strive to reach a mutually acceptable agreement in a non-adversarial setting.

Your attorney can assist you with deciding whether arbitration or mediation is right for you. Sometimes, parties can agree on some issues but mediate or arbitrate others. Obviously, both arbitration and mediation are by agreement of the parties. If your spouse does not want to participate in these alternative processes, you cannot force them and will simply have to go to court. However, most counties in Pennsylvania direct parties to try mediation, at least one time.

Will a New Jersey court award counsel fees?

2011-04-29T03:02:00.001-04:00

Many times clients, especially dependent spouses, proceed through a divorce with the expectation that the opposing party will be ordered to pay for their counsel’s fees and costs. Similarly, many clients, usually the independent spouse, fully expect that each party will pay their own counsel fees and costs. Both of these assumptions are risky assumptions, because, counsel fee awards are infrequent, yet courts will award the payment of fees and costs under certain circumstances. Therefore, clients that rely on their assumptions that the other party will pay for their attorney or that each person will be responsible for their own fees and costs often may fight tooth and nail over small issues instead of choosing to settle and compromise. This tactic only serves to drag out litigation, and causes the parties to unnecessarily waste money and amass significant debt to their attorneys.

Recently, the Superior Court of New Jersey upheld an award of counsel fees in Becker v. Becker. In a succinct opinion, the Court held that New Jersey judges must follow the factors listed in Rule 5:3-5(c) when determining whether to grant an award of counsel fees and costs. These factors include: the income and disposable income of the parties, their capital assets, and their ability to pay or contribute to their own counsel fees. Therefore, an award of counsel fees and costs is a highly fact-specific decision. For example, in Becker, the Court upheld an award of counsel fees paid from Husband to Wife, because the Court found that Husband was in a financially superior position and because he was the party responsible for inflating the legal costs by being uncooperative in the litigation.

Therefore, when proceeding in a divorce or any family law litigation in New Jersey, spouses should be careful about what assumptions they make regarding counsel fees. Parties should be careful to avoid allowing an assumption about who will be paying the attorney at the end of the day to motivate their litigation decisions.

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

Try saying it a different way

2011-04-20T10:43:00.001-04:00

Communicating with your ex-spouse, especially when you share children, presents what can sometimes seem like an impossible task. Sometimes the simplest of exchanges dissolve into bitter diatribes, accusatory remarks and non-productive name calling. What to do?

Try pressing the reset button and present information to the other person in a whole new way. Watch this video for inspiration.

Tips for home sellers

2011-04-19T01:32:00.000-04:00

Spring is here. That means that it is the spring real estate market, and home owners across the nation are placing their homes on the market. If you are a potential home seller, read this helpful article for mistakes to avoid.

Custody / Visitation / Joint / Shared: What do these words mean?

2011-04-18T03:02:00.008-04:00

When litigating custody in Pennsylvania, certain terms are used in court, legal pleadings and in negotiations between parents. The Pennsylvania custody statute provides actual definitions for various terms and, if you are engaged in a custody dispute in this Commonwealth it is important for you to understand these terms, as defined by statute.

Sometimes, people agree to “joint custody” or “legal custody” without understanding what those terms actually mean. Before you negotiate with the other parent, learn the proper definitions.

Below, I have listed the terms along with their definitions pursuant to our custody statute as defined in Title 23, Chapter 53 of the Pennsylvania Consolidated Statutes. Some of these definitions are edited slightly from the words in the statute for clarity to provide help to litigants in understanding the terms. For more specific advice, related to your situation, it is always best to consult with an attorney.

Abuse - The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or parents who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incests with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious bodily injury.
(3) The infliction of false imprisonment.
(4) Physically or sexually abusing minor children.
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.

Adult - An individual 18 years of age or older.

Agency - Any organization, society, institution, court facility or other entity which provides for the care of a child. The term does not include a county Children and Youth Social Service Agency.

Child- An unemancipated individual under 18 years of age.

Legal Custody - The right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.

Parental duties - Includes meeting the physical, emotional and social needs of the child.

Partial physical custody - The right to assume physical custody of the child for less than a majority of the time.

Physical custody - The actual physical possession and control of a child.

Primary physical custody - The right to assume physical custody of the child for the majority of time.

Relocation - A change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.

Shared legal custody - The right of more than one individual to legal custody of the child.

Shared physical custody - The right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.

Sole legal custody - The right of one individual to exclusive legal custody of the child.

Sole physical custody - The right of one individual to exclusive physical custody of the child.

Supervised physical custody - Custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.

Can I expunge a Pennsylvania PFA order against me?

2011-04-15T02:49:00.003-04:00

A Protection From Abuse Order, also known as a PFA, is an order entered by the court to protect victims of domestic abuse from their abuser. Under Pennsylvania law, PFAs can be ordered between family or household members, sexual or intimate partners or persons who share biological parenthood. PFAs arise from a great variety of circumstances and, although any allegation of abuse is extremely serious, the facts of each case can differ greatly. When an individual seeks protection, a temporary PFA is issued. Then there is a hearing where the court determines whether a final PFA order, for a longer period of time, is appropriate. The court has the ability to create a PFA that is best suited to protect the parties involved, and the orders can vary in severity as well as length. The maximum length of a PFA in Pennsylvania is three (3) years, unless the plaintiff (the individual who originally sought the protection of the PFA) petitions the court to extend the length of the order. Civil court grant the orders, which means that, even though a PFA is extremely serious, it is part of a person’s civil, not criminal, record.

Many times, after the PFA has expired, people want to know how to remove the PFA from the court record. Understandably, for many individuals, a PFA on the court record could potentially have lasting negative effects on their employment opportunities, as well as their personal reputation. Although PFA court records are not easy to obtain, they are certainly not private or protected; therefore, it is possible that a potential employer could become aware of it, especially in professions where comprehensive background checks are required. Removal of a PFA from the court record, also known as expunging the record, is much more difficult than many people realize.

The removal of a PFA from the court record is only allowed in certain circumstances. Pennsylvania law does not specifically address expunging a PFA, thus the legal authority on this topic comes from court decisions.

In the 1998 Superior Court of Pennsylvania case P.E.S. v. K.L., a PFA was filed, but neither party appeared for the final hearing. Therefore there was no finding of abuse, but the original filing remained active in the court system. The court stated that they would allow the expunction of a PFA from an individual’s record in limited circumstances where a respondent seeks to protect his or her reputation. It is important to note that there was not a PFA ordered in this case, rather there was only an original PFA petition filed that was not pursued by either party.

The Pennsylvania Supreme Court addressed PFA expunction in the 2002 case Carlacci v. Mazaleski, where a PFA filing led to a temporary PFA order. The parties then executed an agreement stating that the temporary PFA was null and void before a hearing was held to determine if a final PFA order would be established. The court reiterated that an individual has the right to petition to expunge a PFA petition against them to protect their reputation. The court also determined that when the petition is either dismissed (as in the P.E.S. case) or the proceedings never go beyond the temporary order stage to a hearing on the necessity of a final PFA, the court does not need to go further in determining if the record should be cleared.

There was no clear decision on whether PFA petitions that actually led to a final PFA could be expunged after the terms of the final PFA Order expired until the Superior Court of Pennsylvania decided Commonwealth v. Charnik. In Charnik, the man charged with a PFA had two indirect criminal contempt charges for violating the PFA. The victim later filed a Petition to Withdraw the PFA Order. The court ruled that this case was distinct from prior cases because the order was final, there had been a hearing on the evidence and the court determined that the protection of a PFA was appropriate. Thus, the court declined to allow for the expunction of a final PFA order at that time.

Unless Pennsylvania courts have the opportunity to address final PFA orders and determine that they may be expunged, they currently are not subject to expunction. Only orders that have been dismissed or fail to go beyond the temporary order stage can be expunged from the individual’s record, and even this procedure is not automatic. This is especially important for individuals involved in PFA proceedings to keep in mind. Of course, in some circumstances a PFA is absolutely necessary for the protection of a party and later expunction of the record is not an appropriate consideration. However, if the parties can agree to terms under an agreement without requiring a final PFA, this can save the alleged abuser considerable future difficulties explaining the court record. If you or someone you know is involved in PFA proceedings, it is wise to consult with an attorney to obtain the best legal advice for your situation.

Written by Elizabeth Early, law clerk at the Law Offices of Linda A. Kerns, LLC. Edited by Linda A. Kerns, Esquire.

Supporting parenting coordinators in New Jersey

2011-04-08T00:16:00.000-04:00

What is a parenting coordinator? A parenting coordinator acts as a liaison between parents to help them communicate regarding decisions, priorities and planning that involve their children. When necessary, a parenting coordinator can make decisions so that the parties do not have to rely on the court system for every dispute.

Recently, the Superior Court of New Jersey issued an opinion in Segal v. Lynch (2011) that strongly supported the use of parenting coordinators. Parenting coordinators are often used to help parents in the most contentious custody cases. They are an invaluable resource for parents who cannot agree on any decisions and continually fail to communicate. In other words, parenting coordinators are a priceless tool in situations where the parents often cannot see past their own disagreements to unify for the best interests of their children. As the court acknowledges, parenting coordinators have a difficult job that is often thankless because they become the target of an unhappy parent’s frustration and anger.

In the toughest cases, a parent may only see a parenting coordinator as a roadblock to getting what they want. In Segal v. Lynch, it appears that the parenting coordinator fell victim to a father’s frustrations. The result of the case strongly supports parenting coordinators because it protected a parenting coordinator from the merit-less claims of a parent by requiring the parent to pay the parenting coordinator’s fees. Furthermore, the court upheld as appropriate the actions taken by the parenting coordinator.

The court time-and-again reiterated that public policy supports using parenting coordinators and providing protection to them because they ease the burden on a burgeoning court system. By using the parenting coordinators, parents’ claims often can be addressed without having to litigate minor concerns, like whether a child should play soccer after school.

New Jersey has established a program through which courts and parents can utilize parenting coordinators. Under the program, there are specific and detailed guidelines establishing the procedures and policies. Included within these policies are systems for filing grievances. The Segal court demanded that the procedures be followed. When the procedures were followed, the court found that a parenting coordinator could receive fees as outlined in the parenting coordinator retainer agreement. In fact, the court went so far as to acknowledge that it would be “crippling” to the parenting coordinator program if parenting coordinators where not compensated for their time, even when the time was spent responding to grievances filed by one of the parents, especially when the grievances were baseless.

When utilizing a parenting coordinator in New Jersey, it is important that the parties fully understand the state guidelines and the parenting coordinator’s retainer agreement, because, as was demonstrated by Segal, the courts likely will uphold the parameters established. The guidelines specifically address issues such as filing grievances, hearings and parameters for the relationship. In short, parents must understand the guidelines for parenting coordinators so that the use of a parenting coordinator is beneficial for all parties.

Ultimately, in difficult parenting cases, a parenting coordinator can be a valuable tool for parents so that they can reach decisions that benefit their children. That said, parents should fully understand the terms of the arrangement and the parameters of New Jersey’s guidelines prior to signing the retainer agreement. By being prepared, all parties stand to receive benefits from the relationship.

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

Welcome Spring and GO PHILLIES!

2011-03-30T09:48:00.000-04:00

Last night, we took a bit of time off from the legal world to go to the Phillies pre-season game at the fabulous Citizen's Bank park.

As you can see - we had great seats, just 28 rows behind the Phillies dugout.

We brought blankets, hand warmers (Thanks Elizabeth!) and fleece jackets.

I made sure I wore Phillies red!

Go Phillies! Good luck this season.

Does your attorney have to keep your secrets?

2011-03-24T03:01:00.000-04:00

It has long been the law that when a client makes confidential communications to his attorney in the context of seeking legal advice, those communications are privileged. An attorney is bound by ethical obligations not to reveal those communications, even if so ordered by a judge or other authority.

There are some exceptions to this rule, as there are really no absolute rules in the law. For example, attorney-client privilege can be broken if the client waives the privilege.

This sacred privilege gives clients the freedom to openly discuss their confidential issues with their attorneys without fear that the attorneys would then reveal that information to someone else.

The Supreme Court of Pennsylvania recently opined in Gillard v. AIG Insurance Company, et al., J-58-2010, that the attorney-client privilege protects confidential information whether it was communicated by the attorney to the client or by the client to the attorney. The Court hoped to promote “the encouragement of trust and candid communication between lawyers and their clients.”

Clients should remember that this privilege is limited to confidential communications. Certain actions can break the confidentiality, such as having a third-person present for the conversation. If you are concerned whether certain communications are privileged, ask your lawyer to explain and clarify this issue for you.