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Julie Auerbach to Speak at Event
Julie Auerbach will speak at the Second Saturday Divorce Workshop . Below is a description of the event. The date has been set for 3/24 from 6-8pm. Below is the registration link to pass on to prospects, peers, and anyone else. The attendees will receive the zoom link once they register. Contemplating or Going Through a Divorce? What You Need to Know Divorce is a whirlwind, but it doesn’t have to capsize your life! The Second Saturday Divorce workshop is designed to equip you with the legal, financial, and emotional information you need to make the right decision for your marriage and your life. REGISTER
Superior Court Cracks Open the Door for Discovery of Mental Health Records
The Pennsylvania Superior Court has carved out an exception to the discovery of mental health records in C.L. v. M.P., Pa. Super., decided July 8, 2020. In the majority opinion authored by retired President Judge Emeritus F. Correale Stevens, the court held that a parent’s mental health records could be reviewed by the guardian ad litem appointed to the child despite the confidentiality provisions of the Mental Health Procedures Act. Judge Deborah A. Kunselman filed a dissenting opinion. Link to the full article: https://www.law.com/thelegalintelligencer/2020/08/13/superior-court-cracks-open-the-door-for-discovery-of-mental-health-records/?cmp=share_email&slreturn=20200714165405
Family Law Gets Complicated in a Crisis
David Gutin and Julie Auerbach quoted in article: Link to article: https://www.jewishexponent.com/2020/08/13/family-law-gets-complicated-in-a-crisis/ Stephanie Winegrad has gotten a lot of calls about divorce during the pandemic. “Generally, I found there was an increase in people who wanted to get divorced and also people who were in the middle of divorce who said, ‘I want this done. I want it over,’” said Winegrad, a partner at Obermayer Rebmann Maxwell & Hippel LLP. Spending more time at home has pushed some relationships to the breaking point, but many Jewish family lawyers say increased interest in separation has not yet translated to a higher divorce rate. Get Jewish Exponent’s Newsletter by email and never miss our top storiesWe do not share data with third party vendors.FREE SIGN UP In the five-county area, court closures have made divorce, custody and other aspects of family law a lot more complicated. David Ladov, chair of the Family Law Department at Obermayer Rebmann Maxwell & Hippel LLP| Courtesy of David Ladov “Nothing was open for months,” said David Ladov, partner and chair of the Family Law Department at Obermayer Rebmann. The instability of the economic and public health crises also has made clients hesitant to act. “There’s been an uptick in phone calls with people looking for information, but I’m not sure people want to do anything right now because there’s so much uncertainty,” said David Gutin, partner at Astor Weiss Kaplan & Mandel, LLP. “For people who are together, barring domestic violence, it’s safer not to rock the boat.” For people who were already in the process of getting divorced when the pandemic hit, court meetings have gone virtual. Cynthia Weiss Stein, partner at Shemtob Draganosky Taylor, P.C. | Courtesy of Cynthia Weiss Stein “We’re having a lot of pretrial conferences that used to be done in person often being done by appointment on the telephone,” said Cynthia Weiss Stein, partner at Shemtob Draganosky Taylor, P.C. Many of the county courts are now in the reopening process after spring shutdowns. The Pennsylvania Supreme Court ordered courts to close to the public on March 18, but each county court is allowed to determine its own reopening schedule. “The logistics are very different county to county because of the physical aspects of the courthouse. So, I mean, for example, Philadelphia Family Court is basically like a high-rise city building. And so elevators present a real challenge,” Stein said. As a result, some courts are more open for in-person proceedings than others. “Chester County and Bucks County have been open for about two months. But the other counties are not as open. You can’t just walk in the ]Philadelphia Family Court],” Ladov said. Even when most courts were shut down in March and April, one notable exception to remote activity was domestic abuse. “The courts have remained open for domestic abuse cases,” Ladov said. “There was probably a month or so where those weren’t heard, but most of the courts heard them as quickly as they could.” Shana Weiner is the founder of Dinah, an organization that provides legal services to Jewish survivors of domestic abuse in the Greater Philadelphia area. She said domestic abuse has increased during the pandemic, according to data from Pennsylvania Coalition Against Domestic Violence. Increased time at home and the closure of public spaces has made it more difficult for victims to seek help. “People can’t actually get help because survivors don’t have the same opportunities to be out of the house that they would otherwise have,” she said. Weiner said that Dinah has always operated remotely, but is struggling to find enough pro bono attorneys to volunteer during the economic crisis. “That’s actually where we’ve been hit the hardest is that attorneys right now, who would otherwise be very eager to volunteer and recognize what an important service and mitzvah we’re doing for the Jewish community, they’ve been hit on their own and can’t necessarily afford to spend the time to take on a volunteer case,” she said. Concerns about the virus have changed the way couples who are already separated think about custody agreements. “We had a number of situations where one of the parents was a health care worker and the other parent was taking advantage of the situation, and basically said, ‘You’re not seeing the kids,’” Ladov said. According to Julie Auerbach, partner at Astor Weiss, most county courts did not accept potential exposure to COVID-19 or stay-at-home orders as an excuse to alter custody agreements, and Gov. Tom Wolf designated custodyexchanges essential. “Courts didn’t penalize health care workers on the front lines trying to save lives,” she said. Winegrad said the pandemic has led some of her clients to be more flexible about their time with their kids, especially if one is an essential worker who can’t provide child care during the week. “The couples who have worked together seem to be creative and doing what’s best for the children in this current situation. They are coming up with schedules that work for their family.” email@example.com; 215-832-8917
“You’ve Lost that Loving Feeling”
Now how do you sever your financial ties. by Julie A. Auerbach, as published in The Philadelphia Lawyer, Summer 2020 Edition Broken hearts may not be the only fallout from the breakup of an unmarried couple. The severing of these romantic ties may also have financial consequences. Untangling jointly held assets, such as real estate and bank accounts, are common byproducts of failed relationships. If there is a broken engagement, disputes may arise over who keeps the engagement ring. Payment of credit card debts and sharing of pets are other concerns that may become areas of disputes. And what about palimony, is it still a thing? Read the entire article
REAL ESTATE DEVELOPER FILES LAWSUIT SAYING COVID-19 EVENTS ENTITLED IT TO DELAY PURCHASE OF PROPERTY
W. Mark Mullineaux, Esq. firstname.lastname@example.org, 610-291-3850 A California retail developer filed a lawsuit declaring COVID-19 and government shutdowns force majeure events entitling it to delay closing on $4.2 million property purchase from ExxonMobil. Pacific Collective, LLC v. Exxonmobil Oil Corp., Complaint, No. 20STCV13294 (Cal. Sup. Ct. Filed Apr. 3, 2020). Force majeure translates to “superior force” in French and it is a term in a contract that frees a party from a contract obligation when an “extraordinary event” or “act of God” prevents it from performing. The purchase agreement has a force majeure clause, but it does not include pandemics, epidemics, or contagions. Nonetheless, Pacific Collective argues that to close on the purchase would require it to commit acts that would be crimes under stay-at-home orders. Pacific Collective says that the orders prevent it from using construction workers, architects, inspectors, and other persons necessary to redevelop the property; and it cannot develop the property in the manner that was a core assumption of the agreement Exxon claims that Pacific Collective is delaying because it lost its tenant and financing, events outside the force majeure clause. Exxon also says that construction is designated as an “essential” business and may operate under the stay at-home orders. The purchase contract is dated February 7, 2020 and Pacific Collective invoked force majeure on March 30, 2020, one day before the closing date. Three days later, Exxon said the sale was cancelled and Exxon would keep the down payment of $120,000. Pacific Collective seeks $7.9 million in damages and an injunction prohibiting Exxon from selling the property to someone else. This could be a leading case on declaration of force majeure in COVID-19 cases. The fact that an injunction is sought may result in a quick decision. The case will involve both the legal issue of when force majeure applies plus a resolution of the factual dispute on whether the delay was actually caused by COVID-19 events. Click here to download White Paper WMM 4/28/2020
CONGRESS APPROVES ADDITIONAL $310 BILLION OF FUNDING TO REPLENISH PAYCHECK PROTECTION PLAN LOAN PROGRAM
On April 24, 2020, Congress passed, and President signed, an additional $310 Billion of funding to replenish the Paycheck Protection Plan (PPP) after the initial $350 billion of the program’s funding was exhausted. Applications for new funding will be accepted on April 27, 2020. While the PPP program was lauded by businesses and the public at large, the roll out of the program has been criticized as providing PPP funding to large well capitalized businesses with access to the financial resources to keep them afloat during COVID-19 shutdown. The programs rules were lax enough to permit PPP loans to be issued to publicly traded companies with excess cash on hand, including to Ruth’s Chris Steakhouse ($20 million PPP loan), Shake Shack ($10 million PPP loan) and Potbelly ($10 million PPP loan). Within the initial thirteen days of accepting applications, PPP funds were exhausted without providing the small businesses with the funding that was intended to help those businesses survive COVID 19 shutdowns and stay at home orders. In order to correct the criticism of the allocation PPP funds, the second round of funding for the PPP has targeted small businesses as beneficiaries by setting aside $30 billion of funds for community development, financial institutions, banks and credit unions with less than $10 billion in assets, and an additional $30 billion banks and credit unions with assets between $10 billion and $50 billion in assets. As an additional protective measure, businesses applying for PPP loans must now certify that the loans are necessary and that do not have access other sources of funding to continue to make payroll and pay other business expenses during the COVID shut down. In addition to the $310 billion allocated to the PPP, an additional $60 billion has been allocated to the Economic Injury Disaster Loan and Grant program, of which $50 billion will be directed to EIDL Loans and the remaining $10 billion will go towards EIDL Grants. For more information regarding the PPP Loans and EIDL Loans and Grants for small businesses please see this link: https://astorweiss.com/covid-19-financial-relief-available-to-small-businesses-2/ The attorneys at Astor Weiss’ Business Law Practice Group are here to help your company with any questions you may have about federal loan programs to get your business through these difficult times. Anyone with questions about how their business may benefit from the Paycheck Protection Program, the Economic Injury Disaster Loan program, or any other federal or state business assistance programs should contact one of the attorneys in this group, whose contact information is listed below: David Mandel, Managing PartnerTherese Allison, AssociateOffice: (215) 790-0100Office: (215) 790-0100Direct: (215) 893-4959Direct: (215) 893-4971Direct Fax: (215) 400-2255Direct Fax: (215) 400-2241Email: email@example.comEmail: firstname.lastname@example.org Stephen Green, Of Counsel Office: (215) 790-0100 Direct: (215) 751-1920 Fax: (215) 790-0509
JULIE A. AUERBACH NAMED FELLOW OF AMERICAN ACADEMY OF MATRIMONIAL LAWYERS
ASTOR WEISS KAPLAN & MANDEL, LLP is pleased to announce that Julie A. Auerbach has been named a Fellow of the American Academy of Matrimonial Lawyers (AAML). Comprised of the top matrimonial attorneys throughout the nation, AAML members are recognized as preeminent family law practitioners with the highest levels of knowledge, skill, and integrity. In order to be elected, each Fellow must successfully complete a rigorous selection process that includes interviews, examinations, and professional and judicial evaluations. Julie A. Auerbach has been practicing primarily in the area of family law since she graduated from Rutgers School of Law – Camden in 1992. She has written extensively and lectured on a variety of family law related topics throughout her career. She is a member of the Pennsylvania Bar Association – Family Law Section and the Delaware County Bar Association. ASTOR WEISS KAPLAN & MANDEL LLP was founded over 60 years ago and as a mid-sized firm it maintains personalized relationships with its clients. ASTOR WEISS KAPLAN & MANDEL offers client services in the areas of family law, personal injury, banking, real estate, shopping centers, business and estates.
STATUS OF MORTGAGE FORECLOSURES IN PENNSYLVANIA AND IMPACT OF THE CARES [COVID-19] ACT
Despite Court Orders and the just passed Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), in Pennsylvania lenders on mortgages that are not “Federally Backed” may still file and serve mortgage foreclosure complaints, default judgments and writs of execution so that properties are ready for Sheriff’s sale when Sheriffs reopen to sell properties. The CARES Act provides that through May 17, 2020 there is a moratorium on foreclosure actions on “Federally Backed” Mortgage Loans and on service of non-judicial notice of intent to foreclose. Also, a borrower who affirms financial hardship due to the COVID-19 emergency shall be granted a forbearance of up to 360 days. I. The CARES Act’s prohibitions only apply to Federally Backed Mortgage Loans Mortgage foreclosures are dealt with in the CARES Act in TITLE IV, Subtitle A, Sections 4022 (1 to 4 families) and 4023 (more than 4 families). This report deals with Section 4022 and not Section 4023. CARES Act Section 4022 applies only to federally backed mortgage loans. Under the CARES Act, a “federally backed mortgage loan” is secured by a lien on real property with 1-4 families insured, guaranteed, made, purchased or securitized by the FHA, Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association or other federal agencies (“Federally Backed Mortgage Loan”). II. For Federally Backed Mortgage Loans, there is a Moratorium through May 17, 2020 on Foreclosure Actions and Notices of Intent to Foreclose The CARES Act Section 4022 (c)(2) provides that a servicer of a Federally Backed Mortgage Loan may not initiate “any judicial or non-judicial foreclosure process,” move for a foreclosure judgment, sale order or eviction through May 17, 2020. That stays Foreclosure actions and service of Notices of Intent to Foreclose. A Notice of Intent is required in Pennsylvania before a mortgage foreclosure complaint can be filed. It is a step in the process of mortgage foreclosure and therefore forbidden through May 17, 2020. III. The CARES Act Provides Forbearance for Borrowers who Affirm Financial Hardship Due to COVID-19 It is not difficult for a borrower to receive forbearance from a mortgage servicer. A borrower may submit a request to the servicer for forbearance for financial hardship due, directly or indirectly, to the COVID–19 emergency. The CARES Act Section 4022 (c)(1) provides that a servicer upon receiving a request for forbearance “shall with no additional documentation required other than the borrower’s attestation to a financial hardship caused by the COVID–19 emergency and with no fees, penalties, or interest…provide the forbearance for up to 180 days.” (Emphasis added). That may be extended for up to an additional180 days at the request of the borrower. IV. Mortgage Foreclosure in Pennsylvania State Courts Today April 1, 2020, the Pennsylvania Supreme Court extended the closure to the public of all Pennsylvania state courts through April 30, 2020. The state courts, however, are accepting filing of complaints and process servers are open for business and serving complaints on defendants. The Pennsylvania Supreme Court orders do not prohibit mortgage foreclosure complaints, default judgments and writs of execution requesting placement on a Sheriff’s sale list. The Court ordered the following restrictions during the “emergency period:” no officer, official, or other person employed by the Pennsylvania Judiciary at any level shall effectuate an eviction, ejectment, or other displacement from a residence based upon the failure to make a rent, loan, or other similar payment. Nothing herein is intended to preclude requests for orders of possession resulting from judgments entered in landlord-tenant actions to be filed by mail. However, any execution on an order of possession is stayed to a date on or after April 3, 2020, subject to further orders. The limitations apply to acts that remove a person from residence and not acts prior to the actual eviction. The clause specifically allows for filing a request for order of possession and the stay only applies to the final act of the court executing the order of possession. The acts of filing a complaint, taking a default judgment (which occurs often) and filing a writ of execution to place the property on Sheriff’s sale list do not remove a person from a residence. Those acts are not forbidden. At this time a property cannot be sold at a Sheriff’s sale because Sheriff’s sales have been postponed. Lenders, however, at this time may accomplish the prerequisites for such sales and the property will be placed on the Sheriff’s sale list once those sales start again. Note that in the Court of Pleas of Philadelphia there is an additional step that cannot be accomplished now because required conciliation conferences between lender and borrower have been postponed. I. Mortgage Foreclosure in Pennsylvania Federal Courts In Pennsylvania, usually foreclosure actions are filed in state court and not federal court. State courts and Sheriffs have more experience handling mortgage foreclosure sales than federal courts and federal Marshalls. To file in federal court the lender has to prove jurisdiction- either diversity (plaintiff(s) and defendant(s) are citizens of different states) or the case involves a question of federal law (not present in standard foreclosure case). The additional step of litigating jurisdictional issues may delay the case and the sale of the property. Generally, filing in state court remains the best option. If at some point it turns out that the COVID-19 pandemic causes more severe delays in the state courts than the federal courts, filing in federal court should be considered in cases where it is clear that the court would have jurisdiction. Download the White Paper WMM 4/1/2020
WHEN CAN CONTRACT DUTIES BE SUSPENDED OR TERMINATED BECAUSE OF THE CORONAVIRUS PANDEMIC?
The coronavirus (COVID-19) pandemic has impacted the ability of businesses to perform contractual duties. Governments around the world, including the United States and U.S. states, have imposed prohibitions on going to work, leaving home, meetings, travel, eat-in restaurants, and other limitations. This paper discusses when a party may have a legal defense if it elects to not perform contract obligations. The defenses of Force Majeure, frustration and impracticability are explored. Force Majeure A Force Majeure clause (French for “superior force”) is a contract provision that allows a party to suspend or terminate the performance of duties under a contract. The scope of protection and remedies are established by the language of the contract. This is an example of a Force Majeure clause: Force Majeure. A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is due to any strike, lockout, civil commotion, war like operation, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations or control, or through act of God (“FORCE MAJEURE”). Performance is not excused if performance resulted from general economic conditions. As examples, other triggering events in a Force Majeure clause could be fire, flood, hurricane, typhoon, earthquake, lightning and explosion or pandemic. A Force Majeure clause may provide that a party must take steps to mitigate the impact. When it first becomes known that a party will rely on Force Majeure, that party should send a formal written declaration of Force Majeure to the other parties to the contract. Under Pennsylvania law, the event alleged as an excuse must have been beyond the party’s control and not due to any fault or negligence by the non-performing party. Martin v. Commonwealth, 548 A.2d 675, 678 (Pa. Commw. 1988). The non-performing party must show that they took action to attempt to perform the contract regardless of the Force Majeure event. Gulf Oil Corp. v. Fed.Energy Regulatory Comm’n, 706 F.2d 444, 452 (3d Cir. 1983). Many Force Majeure clauses in effect today do not list pandemic, epidemic or disease. Without that language at first blush it may appear that the Force Majeure defense does not apply to performance impacted by COVID-19. A defense may be available, however, if the clause covers governmental regulations and those regulations had a serious negative impact on performance. Further, the world-wide recognition of the need to control COVID-19 and government’s “stay at home” orders may result in courts being more liberal in approving a Force Majeure defense. Impracticability or Frustration If there is no Force Majeure clause in a contract or if the clause does not provide protection, a party to avoid performance may rely on the common law doctrines of “frustration” or “impracticability.” In Pennsylvania it is difficult to meet the requirements for those defenses. As a general principle, a party assumes the risk of incapacity to perform its contractual duties. Craig Coal Mining v. Romani, 513 A.2d 437 (Pa. Super. 1986). To use frustration or impracticability as a defense for non-performance, the cost of performance must become so excessive and unreasonable that the failure to excuse performance would result in “grave injustice.” Gulf Oil Corp. v. Federal Power Commission, 563 F.2d 588, 599 (3rd Cir.1977), cert. denied, 434 U.S. 1062 (1977). As soon as it is known, a formal written declaration of frustration or impracticability should be sent to the other parties to the contract. In Dorn v. Stanhope Steel, Inc., 534 A.2d 798, 811-812 (Pa. Super 1987), appeal denied, 544 A.2d 1342 (1988), the court said performance may be considered “impracticable” and excused because of extreme and unreasonable difficulty, expense, injury, or loss, such as severe shortage of raw materials or of supplies due to war, embargo, local crop failure or unforeseen shutdowns; or performance will involve a risk of injury to person or to property. Increases in costs unless well beyond the normal range, do not amount to impracticability. Id. citing Restatement (Second) of Contracts § 261. A party must establish that the act contemplated is incapable of being performed, rather than the fact that he or she is incapable of performing it. Luber v. Luber, 614 A.2d 771, 774 (Pa. Super.1992), appeal denied, 631 A.2d 1008 (Pa. 1993). The doctrine of frustration provides that the duty to perform is discharged when a party’s principal purpose is substantially frustrated without his fault and there is a violation of a basic assumption on which the contract was made. Stanhope Steel, supra at 811-812, citing Restatement (Second) of Contracts § 265. The doctrine applies if events occur that result in a situation radically different from the contemplation of the parties when the contract was made. Courts typically require proof of “impossibility” of performance in order to allow the defense of frustration. In Stanhope Steel, supra, defendant was losing vast amounts of money for 4 years, defendant’s largest creditor would no longer advance funds and defendant did not have enough money to pay its operating expenses and payroll costs. The court held that the defenses were not established because defendant failed to show a change in the business environment that was well beyond the normal range. Although the standard is high, courts have provided relief under defenses of impracticability and frustration. In Aluminum Co. of Am. v. Essex Grp., Inc., 499 F. Supp. 53 (W.D. Pa. 1980), a federal district court in Pennsylvania, held that under Indiana’s doctrines of impracticability and frustration of purpose, seller was entitled to reformation of a long-term contract where seller’s production costs rose greatly beyond the foreseeable risk and where, without judicial relief, seller stood to lose in excess of $60 million out of pocket during remaining term of contract. In Riger v. Maloney, 2014 WL 10919548, at *3 (Pa. Super. 2014)(not precedential), the court ruled performance of transferring a 401(k) account was suspended because a necessary document was located in a file with Superior Court and the duty of transferring the funds could not be carried out. In Murray v. Willistown Twp., 169 A.3d 84, 92-93 (Pa. Super. 2017), the court cited impracticability of performance and applied a reformation of a contract after certain insurance coverage required in the contract became unavailable. Parties will be urging courts to hold that the unique obstacles caused by COVID-19 support a defense of impracticality or frustration. Given the unprecented impact of the disease, courts may feel compelled to allow those defenses. Moving Forward Any decision on whether to declare Force Majeure, frustration or impracticability requires a detailed analysis based on the particular facts faced by a company and the applicable law. As an example, a company should evaluate whether their counterparties to contracts may declare justifiable release from performance. Some companies will be on both sides of this issue, as the performing party in some cases and the receiving party in others. Companies should look at both possibilities before taking a formal position on whether to declare Force Majeure, frustration or impracticability. Download the White Paper W. Mark Mullineaux, Esq. 610-291-3850 email@example.com
Suggested Guidelines for Persons Subject to Montgomery County Custody Orders During COVID-19
Note: Montgomery County has issued the attached guidelines when exchanging custody of children. These guidelines are good rules to follow, regardless of which county you live in. For persons seeking guidance regarding existing Custody Orders during the COVID-19 pandemic, the following are recommendations only and are not enforceable via a Contempt Petition. These recommendations are consistent with the Governor’s Emergency Mandate: Existing Custody Orders shall remain in effect and shall govern where a child resides unless modified by further Court Order or agreement of the parties. However, existing Orders could be subject to the guidelines below. All of these temporary guidelines should remain in place and be followed until the Governor of Pennsylvania rescinds or allows to expire any “stay at home” orders covering Montgomery County AND any other county in which any party subject to the custody order resides.All parties subject to custody orders should adhere to the CDC recommended protocols for COVID-19 (to include washing hands, cleaning surfaces with disinfectant solutions, physical distancing, etc); remaining in one’s home and refraining from taking children to a public place.Parties should take all precautions necessary to keep children safe and healthy at all times.Employment by one party as a first-responder, health care worker or other essential worker is not a valid reason alone to justify suspension of an existing custody order.In the event a party or any person in their household becomes infected with a respiratory illness or is showing any signs of being infected with COVID-19, that party should report such situation to the other party. In such a situation, the following is recommended: a. If the party giving notice (“reporting party”) does not have custody of the child at the time of the report, the physical custody rights of the reporting party should be suspended and the child subject to the custody order should remain with the other party pending the resolution of the infection or illness. b. If the reporting party has custody of the child at the time of the report, then the physical custody rights of the non-reporting party should be suspended and the subject child should remain with the reporting party, until the infection has resolved. c. Any party whose physical custody rights are suspended pursuant to subsection a or b above, should have the right to daily contact with the child through any electronic means available, to include telephone, skype, zoom, facetime or other appropriate means. Such contact should be liberal and in such a way as to maximize the child’s contact with the non-custodial party with no interference from the custodial party. d. Should a reporting party having custody of a child be unable to maintain custody due to conflict between the need for in-person supervision of a young child and the reporting party’s essential employment obligations or because of illness, the parties shall exchange the subject child in a timely manner. The reporting party’s custodial rights should thereafter be suspended until the infection has resolved or the work requirements have lessened and, if appropriate, the non-reporting party receiving the child shall take any isolation or quarantine measures necessary for the safety of the child. In the event a custodial exchange is required to take place inside a public place, the Court recommends that the exchange take place in the parking lot of the ordered location.
Drawing the Line Between Corporal Punishment and Child Abuse
States around the country are drawing the line between permissible and excessive corporal punishment in different places. Regardless of where that line is drawn, in high-conflict custody cases, there is always a danger that one parent could accuse the other of child abuse to try to get a leg up in litigation. In highly contentious custody cases, family lawyers should advise their clients to be mindful of their use of corporal punishment, since it makes them vulnerable to allegations of abuse. By Julie A. Auerbach, Family Lawyer Historically, corporal punishment has been common practice in child-rearing. Many parents find it to be an effective and acceptable form of discipline. Corporal punishment by parents and other caregivers is legal throughout the country. Corporal punishment in schools is still permissible in many states. But the tide has slowly changed and more and more parents are moving away from corporal punishment. As different views on the efficacy and appropriateness of corporal punishment further develop, disputes on the use of it reach the courts with more and more frequency. When parents are separated and in conflict with one another, there is a greater danger that one parent could be accused by the other parent of misuse or misapplication of corporal punishment. Family law lawyers should be mindful of this changing attitude and advise their clients accordingly. While corporal punishment is permissible throughout the country, its use is not without restriction. Most states have statutes preserving the right of parents to use corporal punishment, while other states preserve this right through decisional law. But the punishment must be reasonable and not result in serious harm to the child. Distinguishing between reasonable use of corporal punishment and excessive corporal punishment that rises to the level of child abuse is a regular challenge facing our courts. Excessive corporal punishment can arise in several areas of law: criminal, child dependency, and protection from abuse. States do not necessarily define abuse the same in all of these areas of law, i.e., what may constitute abuse under a protection from abuse statute may not constitute abuse under a criminal statute. A parent’s use of corporal punishment may not result in criminal charges – but it could result in the entry of a protection from abuse order against a parent or a loss of parental rights. States Draw the Line Between Corporal Punishment and Child Abuse in Different Places Further, in each of these areas of law – criminal, dependency and protection from abuse – states around the country have drawn the line between permissible and excessive corporal punishment in different places. In the criminal context, the Massachusetts case of Commonwealth v. Dorvil, 32 N.E. 3d 861, 472 Mass 1 (2015) identified three approaches taken in setting the line between corporal punishment and child abuse. The first approach is whether the use of corporal punishment is reasonable. Indiana adopted this approach and identified several factors to be considered when applying this standard, such as the nature of the offense and motive, influence of the example on other children in the family, whether the use of force is reasonable to compel obedience to a proper command, and whether it is unnecessarily degrading or likely to cause serious harm. See Willis v. State 888 N.E. 2d 177 (2008). The second approach is that there is a parental privilege to use corporal punishment but certain types of force are not permissible. For example, a Kentucky statute prohibits corporal punishment which is “designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress.” Ky. Rev. Stat. Ann. Section 503.110. The third approach combines the first two approaches, providing that the use of corporal punishment must be reasonable and certain forms of corporal punishment are not permissible. By way of illustration, the Delaware criminal code provides for justification of use of force against children to prevent or punish misconduct. The size, age, condition of the child, location of the force, strength, and duration of the force are all factors used in determining if the force is reasonable and moderate. It then goes on to list a number of types of force that are not authorized – throwing, kicking, burning, cutting, striking with a close fist and interfering with breathing. In the Utah case of Bountiful City v Blaize, 438 P.3d 1041 (2019), the court applied the third approach. The father was convicted of a misdemeanor of child abuse for spanking his four-year-old child and leaving a bruise in the shape of a handprint. The court found that the discipline used by the father was too hard even though the father acted with good faith intent. In dependency cases, while the remedies are different from criminal cases, courts will often look to their state’s criminal statutes for guidance in determining whether abuse has occurred. In the Pennsylvania case of J.S. v. Department of Human Services, 221 A.3d 333 (2019), the father made the decision to use corporal punishment as a means of disciplining his four-year-old son by smacking him on his buttocks. To make sure he did not hit the child too hard, the father first smacked his own leg multiple times. He then hit the child four times on his buttocks. The court held that when corporal punishment is involved, the test is not whether substantial pain was caused. Protecting Children from Abuse vs. Maintaining Parents’ Rights to use Corporal Punishment By definition, corporal punishment causes pain. Instead, the test is whether reasonable force was used in administering corporal punishment. The analysis should focus on the parent’s conduct rather than the result. Citing to the Pennsylvania Supreme Court case P.R. v Department of Public Welfare, 569 Pa. 123, 801 A.2d 478 (2002), the Court noted that there is a need to balance the competing objectives of protecting a child from abuse while maintaining a parent’s right to use corporal punishment. To determine whether reasonable force was used, a court should look to the standard of criminal negligence, which requires proof that a substantial and unjustifiable risk of bodily injury was disregarded. The focus of the inquiry is not the nature of the injury, but the conduct of the parent or guardian, considered under the totality of the circumstances. In the California dependency case of Gonzalez v. Santa Clara County Department of Social Services, 223 Cal. App. 4th 72 (2014), a mother hit her child with a spoon. The court noted the parental privilege to use corporal punishment as provided for in the criminal statutes when deciding whether the mother’s actions amounted to abuse. It looked at her motive in using the discipline; was it a reasonable occasion to use discipline and was the discipline reasonable in light of the behavior of the child. Since the mother was not necessarily aware that bruising could occur, the fact that bruising appeared is not evidence that the discipline was unreasonable. The Definition of and Remedy for Child Abuse Depends on the State Other cases look squarely at the definition of abuse as set forth in their state’s dependency statutes. New York courts have held that a single use of excessive corporal punishment is enough to find abuse in the context of dependency proceedings. See Matter of Jeremiah J., 177 A.D. 3d 740 (2019) (New York) andSmith v. Murphy 517 S.W. 3d 453 (2017). But see the New Jersey Supreme court case of New Jersey Div. of Youth and Family Services, 11 A.3d 844 (2011), which held that occasional slaps on 16-year-old’s face did not constitute excessive corporal punishment. The New Jersey court noted that these cases were very fact-specific and what might constitute excessive corporal against a small child may not be considered excessive corporal punishment against an older child. While the court did not endorse the use of corporal punishment, it found that the punishment did not result in any bruises, scars or lacerations. It went on to note that there is a need for some parental autonomy in child-rearing which may involve the need for physical discipline. States’ protection from domestic violence statutes have their own definition of child abuse and have different remedies from criminal cases and dependency cases. In an Arkansas protection from abuse case, Smith v. Murphy, 517 S.W. 3d 453, one instance of the father’s use of a leather belt to punish his 4-year-old child was sufficient evidence to support the entry of an order of protection against the father for 5 years. The injuries caused by the father’s use of the belt spanned from the child’s upper back to his knee and caused some bruising and mental anxiety. The court rejected the father’s argument that the court should look to the state’s criminal cases and juvenile code when deciding whether abuse had occurred. But see the Florida case of G.C. v. R.S. and K.C, 71 So.3d 164 (2011), which held that a parent’s common law right to use reasonable corporal discipline is a defense to a petition for an injunction against domestic violence, even though the domestic violence statute does not reference this common law right. Use of Corporal Punishment Makes Parents Vulnerable to Accusations of Child Abuse The different approaches taken by each state in these areas of law illustrates the vulnerability of parents who use corporal punishment. Separated or divorced parents who have acrimonious relationships with the other parent are even more vulnerable. Family law attorneys should advise their clients to be mindful of their use of corporal punishment in today’s environment of heightened sensitivity to child abuse. Julie A. Auerbach, a partner at Astor Weiss Kaplan & Mandel, focuses her practice in the area of family law. She has written and lectured extensively on the subject of family law, custody, and child abuse – including “Defending a Protection from Abuse Case Involving Children” for the Legal Intelligencer. www.astorweiss.com
The Federal Stimulus (Economic Impact Payment)—What do you need to do?
By: Judy M. Springer, Esquire In general, you do not need to do anything according to the IRS to obtain your federal stimulus payment. The IRS expects to begin issuing the payments this month. Depending on your circumstances, you might want to take some pro-active steps. Who Qualifies? If you have adjusted gross income of less than $75,000 per year as an individual, or less than $150,000 for married couples filing joint returns, you will receive the full payment $1,200 per spouse. For Head of Household filers for 2018-2019, you receive the full payment with an adjusted gross income below $112,500. In addition to the $1,200 per spouse (or individual taxpayer for a non-joint return), the payment will also include up to $500 per child under the age of 17 as of December 31, 2020. For individuals earning between $75,000 per year and $98,000 per year and for married couples filing joint returns earning between $150,000 and $198,000 per year in adjusted gross income, there is a gradual phase out of the payment. For head of household filers, at $112,500 through $136,500, the payments are phased out. The IRS will use the 2019 tax return filed by you to calculate your payment. If you have not yet filed your 2019 taxes, the IRS will use the 2018 tax return. What do I Need to Do? If you filed taxes in 2018 or 2019, you do not necessarily need to do anything – UNLESS you separated from your spouse since you last filed taxes or haven’t filed taxes with your new residence. If you are recently separated or have moved and your last refund was deposited into a joint account or mailed to a prior residence, you may want to go to www.irs.gov (it may be too early—see below) to sign up for direct deposit so that the check does not get sent to the other spouse at the marital residence or deposited into an account that no longer belongs to you, is closed, or to which you no longer have access. You will also receive the payment sooner and will not have to leave your home to make a trip to the bank if the IRS did not previously have your bank information to make a direct deposit. The IRS plans to develop an online portal to enter your banking information but has not yet done so as of the writing of this piece. If you are supposed to file a return for 2018 or 2019 but have not yet filed for either year, the IRS urges you to file ASAP so that your payment will be processed. The sooner you file the better. The IRS has stated that these payments will be available through the end of 2020. If you did not qualify based upon your 2019 income and your 2020 income is reduced, you may qualify for a payment when you file your 2020 return. Pennsylvania has stated that it will not tax the stimulus payment as income for your 2020 Pennsylvania Income Tax Return. If you are a Social Security recipient or receive Railroad Retirement benefits are not required to file a tax return, you will still receive your individual benefits because the government has that information. The government would not have your dependent information. For more information, see the IRS links below: https://www.irs.gov/coronavirus-tax-relief-and-economic-impact-payments https://www.irs.gov/newsroom/economic-impact-payments-what-you-need-to-know For those taxpayers who filed jointly in 2018 or 2019 and are no longer together with their spouse or for those taxpayers who designate which parent claims children on taxes because the parents do not live together, you may want to reach out to an attorney to make sure that you receive your appropriate payment and that it is not sent to a spouse, former spouse, or the parent of your children if it should not be sent to them. If you want to talk to any of the Family Law Attorneys at Astor Weiss Kaplan & Mandel LLP regarding this or any other issues relating to COVID-19 or otherwise, feel free to contact us. We are working remotely and are here to serve you in this unprecedented time. David Gutin, Esquire – firstname.lastname@example.org Gerald Schorr – email@example.com Julie Auerbach – firstname.lastname@example.org Judy Springer – email@example.com Dina Ronsayro – firstname.lastname@example.org
COVID 19 FINANCIAL RELIEF AVAILABLE TO SMALL BUSINESSES
UPDATED PER SBA GUIDANCE ISSUED APRIL 3RD 2020 by Therese Allison Over the last month businesses and their employees have questioned how they will survive the recent economic downturn. As of April 1, 2020, in response to the global COVID-19 pandemic, approximately 85% of the population in the United States is under state or local orders to stay at home, and the majority of states have closed schools and businesses that do not provide life sustaining services. More recently, some states especially hard hit by COVID-19 have received designations as major disaster areas. While there is no clear time frame when this halt to our economic, educational and social engine will end, the massive toll that these closures will have on businesses and on individual employment is predictable. Fortunately, the federal and state governments are taking action to assist businesses and their employees survive in these uncertain times. The CARES Act Paycheck Protection Program In light of the anticipated and unprecedented toll on the welfare of this country Congress has approved the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) to provide financial relief to individuals and businesses. Small businesses can benefit from the $349 million dollars allocated through the CARES Act’s Paycheck Protection Program (the PPP). The program, enacted to help businesses retain their employees and meet their business expense obligations during this economic downturn, provides federally guaranteed low interest SBA loans that do not require collateral or guarantees from the borrower, and that may be forgiven if businesses use loan proceeds for permitted purposes and maintain their payroll through June 30, 2020. Paycheck Protection Loan Eligibility Requirements The PPP, enacted as part of Title I to the CARES Act, is intended to protect small businesses from interruption due to the COVID-19 Pandemic. PPP loans are currently available to small businesses that were in operation before February 15, 2020, to assist in payment of employee payroll and other businesses expenses incurred during this period of business closures and stay at home orders. PPP loans have a two-year term, a fixed interest rate of 1%, no pre-payment penalties, and no personal guaranty or collateral requirements. Further, payments will be deferred for a period of six months from the loan origination date. Businesses qualify as a “small business” under the Act if they have fewer than 500 employees (whether those employees are full time, part time or any other employment status); qualify as a small business under the SBA’s size standards; or operate as a sole proprietor, independent contractor or self-employed business. In addition, the Act applies the 500 employee limitation on a per location basis for businesses in the food services and accommodation sector (any NAICS Code beginning with 72). Amount of Loan and Permitted Use of Proceeds Qualifying small businesses are eligible for loans up to 2.5 times the borrower’s average monthly payroll costs incurred over the twelve month period prior to the loan application, up to a maximum amount of $10 Million, the funds of which may be applied to expenses incurred by the borrower during any time period between February 15, 2020 and June 30, 2020. “Payroll Costs” are defined as all employees’ salary, wages, tips, commissions, or similar compensation, but excluding the portion of any employee’s salary that exceeds $100,000; payment for vacation, family, medical, or sick leave; compensation for separation or dismissal; payment for employee benefits including group healthcare including insurance premiums and retirement; and payment of state and local taxes assessed on compensation of employees. The funds from a PPP loan may only be used for payment of Payroll Costs, interest payment on mortgage obligations, rent payments, interest on other debt obligations, and utility payments (the “Permitted Purposes”). Loan Forgiveness Up to 100% of Paycheck Protection loans are eligible for forgiveness where the funds are used for Permitted Purposes. PPP loan forgiveness is contingent upon the borrower maintaining its payroll. If employees are laid off during the period between loan origination and June 30, 2020, the portion of the forgiveness available to the borrower will be reduced by the percentage decrease in the number of employees. Further, if the borrower’s total payroll expense for workers earning less than $100,000 is reduced by more than 25% the forgiveness will be reduced by that same amount. However, if employees previously laid off are rehired by June 30, 2020, full forgiveness may be available to the borrower. Where the loan is used for both Permitted Purposes and other purposes, only the portion of the funds used for Permitted Purposes are eligible for forgiveness. Applying for a PPP Loan Applications for PPP loans will be accepted by SBA lenders for the period beginning on April 3, 2020 and ending on June 30, 2020 and the $349 Billion of funds are available on a first come first serve basis. Applications must be made through an SBA qualified lender. Small business interested in PPP loans should contact their regular bank to inquire whether they are accepting such applications. The SBA has published a sample PPP loan application and SBA lenders are using the SBA’s form to create their own PPP Loan application form to be used by small business borrowers. A link to the sample SBA application can be found here: (https://www.sba.gov/sites/default/files/2020-04/PPP%20Borrower%20Application%20Form.pdf). This sample application should allow you to prepare the documentation you will need to submit with the application. Economic Injury Disaster Loan Program Under the CARES Act As illnesses mount and pressure on society to control the spread of the COVID-19 virus increases, states have begun applying to the federal government for declaration as major disaster areas. Disaster designations, such as the designation declared in Pennsylvania on March 30, 2020, make federal funding available to state and local governments and allow businesses to obtain assistance such as the Economic Injury Disaster Loan Program (the “EIDL”). The CARES Act created a new grant program to provide quick relief to businesses under the EIDL program where borrowers can receive up to $10,000 in the form of an EIDL grant to cover immediate payroll, mortgage, rent and additional expenses. The EIDL grant does not have to be repaid to the SBA. The traditional EIDL loan program, administered by the SBA, provides loan proceeds up to $2 Million to businesses located in federally designated disaster areas that incur economic losses as a result of such disasters. EIDL loans remain available to small businesses and may be an alternative to PPP loans. These loans are offered at an interest rate of 3.75% with a repayment term of up to 30 years. The proceeds of these loans may be used to pay fixed debt, payroll, accounts payable and other obligations that a business may be unable to meet as a result of the impact of the disaster. The SBA’s April 3, 2020 guidance clarified that borrowers that received an EIDL loan between January 1, 2020 and April 3, 2020 and used the EIDL funds to pay for payroll costs must refinance its EIDL into the PPP loan. The recent guidance did not clarify whether a borrower with a pending application for an EIDL loan will be eligible to receive a PPP loan. It is clear, however, that EIDL grants issued to small business borrowers will be deducted from PPP funds that are forgiven. Small business borrowers should consult with their SBA lender before submitting any loan or grant application. The attorneys at Astor Weiss’ Business Law Practice Group are here to help your company with any questions you may have about federal loan programs to get your business through these difficult times. Anyone with questions about how their business may benefit from the Paycheck Protection Program, the Economic Injury Disaster Loan program, or any other federal or state business assistance programs should contact one of the attorneys in this group, whose contact information is listed below: David Mandel, Managing Partner Office: (215) 790-0100 Direct: (215) 893-4959 Direct Fax: (215) 400-2255 Email: email@example.com Therese Allison, AssociateOffice: (215) 790-0100Direct: (215) 893-4971Fax: (215) 400-2241Email: firstname.lastname@example.org Stephen Green, Of CounselOffice: (215) 790-0100Direct: (215) 751-1920Fax: (215) 790-0509Email: SGreen@astorweiss.com
COVID 19 FINANCIAL RELIEF AVAILABLE TO SMALL BUSINESSES
Author: Therese Allison Over the last month businesses and their employees have questioned how they will survive the recent economic downturn. As of April 1, 2020 approximately 85% of the population in the United States is under state or local orders to stay at home, and the majority of states have closed schools and businesses that do not provide life sustaining services in response to the global COVID-19 pandemic. More recently, some states especially hard hit by COVID-19 have received designations as major disaster areas. While there is no clear time frame when this halt to our economic, educational and social engine will end, the massive toll that these closures will have on businesses and on individual employment is predictable. Fortunately the federal and state governments are taking action to assist businesses and their employees survive in these uncertain. The CARES Act Paycheck Protection Program In light of the anticipated and unprecedented toll on the welfare of this country Congress has approved the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) to provide financial relief to individuals and businesses. Small businesses can benefit from the $349 Billion dollars allocated through the CARES Act’s Paycheck Protection Program (the PPP). The program, enacted to help businesses retain their employees and meet their business expense obligations during this economic downturn, provides federally guaranteed low interest SBA loans that do not require collateral or guarantees from the borrower, and that may be forgiven if businesses use loan proceeds for permitted purposes and maintain their payroll through the end of June, 2020. Paycheck Protection Loan Eligibility Requirements The PPP, enacted as part of Title I to the CARES Act, is intended to protect small businesses from interruption due to the COVID-19 Pandemic. PPP loans are available to small businesses that were in operation before February 15, 2020 to assist businesses in maintaining employees on their payroll and paying other businesses expenses incurred during this period of business closures and stay at home orders. PPP loan terms will be two years and with a fixed interest rate of 0.5%, will have no pre-payment penalties Also, loan payments will be deferred for a period of six months from the loan origination date. A business will qualify as a “small business” under the Act if it has fewer than 500 employees (whether those employees are full time, part time or any other employment status); qualifies as a small business under the SBA’s size standards; or operates as a sole proprietor, independent contractor or self-employed business. In addition, the Act applies the 500 employee limitation on a per location basis for businesses in the food services and accommodation sector (any NAICS Code beginning with 72). Amount of Loan and Permitted Use of Proceeds Qualifying small businesses are eligible for loans up to 2.25 times the borrower’s average monthly payroll costs incurred over the twelve month period prior to the loan application, up to a maximum amount of $10 Million, the funds of which may be applied to expenses incurred by the borrower during any time period between February 15, 2020 and June 30, 2020. In calculating payroll costs, any employee whose salary exceeds $100,000 annually, must be capped at that number. The funds from the loan may only be applied to payroll costs, excluding prorated costs of salaries over $100,000 per year for any individual, costs related to the continuation of health care benefits, employee salary and commissions, interest payment on mortgage obligations, rent payments, interest on other debt obligations, and utility payments (the “Permitted Purposes”). Loan Forgiveness Up to 100% of Paycheck Protection loans are eligible for forgiveness where the funds are used for Permitted Purposes. PPP loan forgiveness is contingent upon the borrower maintaining its payroll. If employees are laid off during the period between loan origination and June 30, 2020, the portion of the forgiveness available to the borrower will be reduced by the percentage decrease in the number of employees. Further, if the borrower’s total payroll expense for workers earning less than $100,000 is reduced by more than 25% the forgiveness will be reduced by that same amount. However, if employees previously laid off are rehired by June 30, 2020, full forgiveness may be available to the borrower. Where the loan is used for both Permitted Purposes and other purposes, only the portion of the funds used for Permitted Purposes are eligible for forgiveness. Applying for a PPP Loan It is presently anticipated that applications for PPP loans will be available on April 3, 2020. Applications must be made through an SBA qualified lender. You should contact your regular bank to see if they are accepting such applications. While the final form of application has not been published yet, SBA has published a preliminary form and it is expected that the final form will be very similar, if not identical. Here is a link to that application. This should allow you to prepare the documentation you will need to submit with the application. Economic Injury Disaster Loan Program Under the CARES Act As illnesses mount and pressure on society to control the spread of the COVID-19 virus increases, states have begun applying to the federal government for declaration as major disaster areas. Disaster designations, such as the designation declared in Pennsylvania on March 30, 2020, make federal funding available to state and local governments and allow businesses to obtain assistance such as the Economic Injury Disaster Loan Program (the “EIDL”). The CARES Act created a new grant program to provide quick relief to businesses under the EIDL program where borrowers can receive up to $10,000 to cover immediate payroll, mortgage, rent and additional expenses. The EIDL grant does not have to be repaid to the SBA. The traditional EIDL loan program, administered by the SBA, provides loan proceeds up to $2 Million to businesses located in federally designated disaster areas that incur economic losses as a result of such disasters. EIDL loans remain available to small businesses, and may be an alternative to PPP loans. These loans are offered at an interest rate of 3.75% with a repayment term of up to 30 years. The proceeds of these loans may be used to pay fixed debt, payroll, accounts payable and other business obligations that a businesses in unable to meet as a result of the impact of the disaster. The current EIDL and PPP regulation guidance is unclear as to whether borrowers will receive a PPP loan if an application for an EIDL loan or grant is pending. In the event that EIDL grants are permitted upon the issuance of a PPP loan the amount of any EIDL grant issued will be deducted from the amount forgiven under the PPP loan. If an EIDL loan is issued prior to a PPP loan, a borrower may be able to refinance the EIDL loan into the PPP loan program. However, small business borrowers should consult with their SBA lender before submitting any loan application. The attorneys at Astor Weiss’ Business Law Practice Group are here to help your company with any questions you may have about federal loan programs to get your business through these difficult times. Anyone with questions about how their business may benefit from the Paycheck Protection Program, the Economic Injury Disaster Loan program, or any other federal or state business assistance programs should contact one of the attorneys in this group, whose contact information is listed below: David Mandel, Managing Partner Office: (215) 790-0100 Direct: (215) 893-4959 Direct Fax: (215) 400-2255 Email: email@example.com Therese Allison, Associate Office: (215) 790-0100 Direct: (215) 893-4971 Direct Fax: (215) 400-2241 Email: firstname.lastname@example.org Stephen Green, Of Counsel Office: (215) 790-0100 Direct: (215) 751-1920 Fax: (215) 790-0509 Email: SGreen@astorweiss.com
Businesses Should Determine Whether Non Performance of Contracts May Be Excused by the COVID-19 Pandemic
In this time of uncertainty, businesses should examine their contracts to analyze the risk of non-performance of obligations and to identify force majeure clauses in light of the COVID 19 pandemic. Force majeure clauses, and the common law doctrine of impracticability, may excuse non-performance upon the occurrence of unanticipated events that are not within the control of either party. The restrictions imposed upon individuals and businesses as a result of the COVID-19 pandemic may excuse performance under contract or common law. On March 11, 2020 the World Health Organization declared the COVID-19 outbreak to be a pandemic. Public health officials have relayed dire warnings about the potential global impact of the spread of infection in the absence of severe restrictions on contact between people. In an effort to stop or slow the spread of COVID-19 unprecedented restrictions have been imposed upon businesses, schooling, travel, and gatherings in both the United States and worldwide. According to the New York Times, as of March 20, 2020 approximately one in four people in this country have been ordered to stay home by their state or local governments. Many states have ordered all businesses that do not provide life sustaining services to close or move to online platforms, schools be shuttered, and events be cancelled or postponed indefinitely. On March 19, 2020 Pennsylvania’s Governor Tom Wolf ordered that non-essential businesses and government offices close and mandated that all restaurants and bars restricted their food service to take out or delivery. This list was updated on March 20, 2020. (https://www.scribd.com/document/452553026/UPDATED-5-45pm-March-21-2020-Industry-Operation-Guidance). All non-essential government offices and all non-essential courts hearings and matters in the Commonwealth have been closed or rescheduled. Further, effective as of March 23, 2020 the residents of the counties of Allegheny, Bucks, Chester, Delaware, Monroe, Montgomery and Philadelphia have been ordered to stay at home. The impact to businesses throughout this country will be severe. Supply chains have or will become disrupted or delayed, businesses may be required to close for an indeterminate amount of time and state and local offices and courts will remain closed until further notice. These measures have effectively shut down a large portion of the country’s economic engine, the long-term ramifications of which are unknown. While parties may attempt to rely on a force majeure clause to excuse performance as a result of COVID-19 restrictions, the specific language of the force majeure or risk management clause to a contract will determine whether state and local mandates will entitle the parties to relief. In Pennsylvania force majeure clauses permit one or both parties’ non-performance of contractual obligations when the force majeure event is “beyond the party’s control and not due to any fault or negligence by the non-performing party.” Gulf Oil Corp. v. Federal Energy Regulatory Commission, 706 F.2d 444 (3d Cir.1983), cert. denied, 464 U.S. 1038, 104 S.Ct. 698, 79 L.Ed.2d 164 (1984). However, “the non-performing party has the burden of proof as well as a duty to show what action was taken to perform the contract, regardless of the occurrence of the excuse.” Id. Even in the absence of, or in the alternative to a force majeure clause, businesses may invoke the common law doctrine of impracticability of performance of contractual obligations. The doctrine of impracticability permits parties to a contract to waive obligations or terminate an agreement where performance by one party is impracticable through no fault of the nonperforming party. West v. Peoples First National Bank & Trust Co., 378 Pa. 275, 106 A.2d 427 (1954). Similarly, parties subject to the UCC may be excused from performance pursuant to UCC §2-615 upon the occurrence of an event that was not anticipated by the parties, or when compliance with government regulation, renders performance of the contract impracticable. Businesses should review their contracts, including the facts underlying the breach or potential breach, the specific force majeure clause and effects of COVID-19 restrictions on their business, and should communicate with business partners early and often regarding their circumstances, to ensure effective resolution to performance disputes. The attorneys at Astor Weiss’ Business Law Practice Group are here to help your company scrutinize your existing contracts to identify potential contractual clauses as well as relevant facts and circumstances regarding performance obligations in light of recent mandates and changes to business in your locality. Anyone with questions about how their contractual obligations may be affected by COVID-19 should contact one of the attorneys in that practice group whose contact information is listed below: David Mandel, Managing Partner Therese Allison, Associate Office: (215) 790-0100 Office: (215) 790-0100 Direct: (215) 893-4959 Direct: (215) 893-4971 Direct Fax: (215) 400-2255 Direct Fax: (215) 400-2241 Email: email@example.com Email: firstname.lastname@example.org Alan Molod, Of Counsel Stephen Green, Of Counsel Office: (215) 790-0100 Office: (215) 790-0100 Fax: (215) 790-0509 Direct: (215) 751-1920 Email: email@example.com Fax: (215) 790-0509 Email: SGreen@astorweiss.com
Distinguishing Between Corporal Punishment and Abuse in Custody Disputes
By Julie A. Auerbach When parents are separated and at odds with one another, each trying to point to the parenting weaknesses of the other and each competing for more time with their children, these parents are likely to be even more constrained in their use of corporal punishment. The older you are, the more likely you have been physically disciplined when you were a child. And not just by your parents! In fact, corporal punishment in schools is still permissible in many states. But with today’s heightened sensitivity to child abuse, parents may be reluctant to use corporal punishment to discipline their children. Read More…
Julie Auerbach a presenter at PA Bar Assoc. Winter Meeting
Julie Auerbach was a presenter at the “ART of Baby making in the 21st Century” at the Pennsylvania Bar Association Family Law Section Winter Meeting, where she discussed new developments in the law regarding Assisted Reproductive Technology.
Can Acts of Generosity Become Legal Support Obligations?
As a matter of public policy, courts want to encourage the involvement of third parties when either or both parents are unable to care for their children. For this reason, courts have historically been disinclined to impose support obligations on third parties. By Julie A. Auerbach | December 30, 2019 at 12:09 PM Read article
HOA Code of Conduct
For many years I have been including a code of conduct dealing with behavior at meetings in the association’s governing documents and providing methods for its enforcement. After having to deal with rude disruptions, harassment and even physical attacks, it becomes clear that some means of trying to assure courteousness and respect is appropriate. In your association, it may be appropriate to go beyond behavior at meetings and to also deal with treating neighbors and staff civilly. In common interest ownership communities, occupants must be willing to make sacrifices for the benefit of coexisting peacefully. Occupants must practice self-restraint and show respect for others. The type of activities and expressions of discontent to be prohibited in a code of conduct must be carefully determined in order not to impinge on legitimate first amendment expression of opinions and free speech. An association must also determine whether or not prohibitions should be imposed on the association, board members and staff also. Electronic communications should also be dealt with. Needless to say, any kind of physical or verbal assault should be prohibited. Prohibit abusive language because of its profanity and or loudness with an emphasis on prohibiting threats and harassment. The code should require compliance with meeting rules and regulations. Creating risk of harm to persons or property or impairing the rights of others should not be permitted. It requires skill for the chairperson of a meeting to allow free expression, while at the same time maintaining proper decorum. Enforcement must be consistent and follow prescribed steps. The usual enforcement tools are fines and denial of use of particular facilities. I do not advocate barring the offender from meetings, but guards or police may be appropriate to permit business to be conducted. About the Author Mr. Ronald B. Glazer is considered a national authority in the field of condominiums and homeowners’ associations. He has authored a number of published articles on various aspects of real estate law and has chaired panels and lectured for numerous organizations, including the International Council of Shopping Centers, the National Banking Law Institute, the Pennsylvania Bar Institute, the Pennsylvania and Philadelphia Bar Associations, the Practicing Law Institute and several commercial program providers. It is the author’s intention to post from time to time articles to help those living in, managing and dealing with common interest ownership communities (condominiums, residential cooperatives and homeowners associations). If you have any comments or questions, please contact Ron at 215 893 4969 or firstname.lastname@example.org. Download the white paper
Judy Springer has been appointed as the co-editor of the Pennsylvania Bar Association, Family Law Quarterly.
Judy Springer has been appointed as the co-editor of the Pennsylvania Bar Association, Family Law Quarterly. Judy McIntire Springer, Astor Weiss Kaplan & Mandel, LLP Judy McIntire Springer has served as a Child Advocates Volunteer Attorney since 2003 and has represented 13 children and youth from 3 families. A partner at Astor Weiss Kaplan & Mandel, Judy’s practice encompasses family law and domestic relations. Judy is a leader in the Pennsylvania Bar Association Family Law Section and is active in her firm’s pro bono activities. As a volunteer, Judy is known to build great rapport with the children, their caregivers, and the other professionals on her cases. She demonstrates sensitivity to the various forms of trauma her clients have experienced. This past year, (2018) Judy was named among the “Best Lawyers in America” for Family Law.
The Test: Does the European General Data Protection Regulation Apply to Your Business Operating in the USA?
OPIOID EPIDEMIC BRINGS CHANGES TO PENNSYLVANIA CHILD CUSTODY LAWS
To address some of the problems which have arisen for children of parents with opioid addictions, Pennsylvania has expanded the rights of third parties to seek custody of a child. Opioid addictions, unfortunately, are becoming even more prevalent in today’s society. While opioids are intended for pain relief, they are also highly addictive. As the usage of opioids increases, a 14 panel drug test can be utilized on people to determine whether they have fallen into the trap of addiction. Unfortunately, when this involves a child, strict decisions on custody have to be made. When there is not a parent available to care for a child, any individual who is willing to assume responsibility for a child and has a sustained, substantial and sincere interest in the welfare of the child may now seek custody of the child. The prior law had strict requirements which had to be met for an individual to seek custody of a child. This change gives interested parties, such as neighbors or adult siblings, the opportunity to step in to care for a child before a child is placed into the state dependency system. The new law also modifies the circumstances when a grandparent can seek periods of custody of a child. The prior law had come under the scrutiny of the Pennsylvania Supreme Court and parts of that law were declared unconstitutional. In an effort to resolve the concerns of the Pennsylvania Supreme Court, the statute now provides that when a custody action is filed by either parent, and the grandparent’s relationship with the child began with the consent of either parent, the grandparent has the right to seek periods of custody with the child. If you would like further information about these changes and how they may impact your rights with regard to a child, please contact the family law attorneys at AWKM.
Malice Not Needed To Prove Insurer Bad Faith, Pa. Justices Say
Link to Article: Malice Not Needed To Prove Insurer Bad Faith, Pa. Justices Say
Notice of Increased Real Estate Tax Assessments
Notices of Increased Real Estate Tax Assessments in the City of Philadelphia The Office of Property Assessment, starting in April, has sent owners of commercial and industrial properties in Philadelphia notices of reassessment of property values. This involved a thorough analysis of some of Philadelphia’s most complex and high-valued parcels, including hotels, office buildings, and apartment buildings. Also reassessed were all retail properties, warehouses, commercially-zoned vacant land, and properties with multiple uses. The new property values take effect for Tax Year 2018, with property taxes due on February 28, 2018. Written notices of the new values are being mailed and, for comparison, can be seen at http://www.phila.gov/OPA/Pages/PropertyInformation.aspx . Beginning in Fiscal Year 2018, the OPA will conduct annual reassessments of all 579,000 properties in the city, including residential and commercial. Condo units have been considered undervalued for assessment purposes and most are being increased substantially. Also, residential and commercial properties enjoying the benefit of the 10 year tax abatement will be affected. The abatements apply only to new improvements and there is no abatement on the tax on the land value. OPA has announced that it believes that land in the City is under assessed and these assessments will increase. Whether or not this will be matched by a decrease in assessed values of the buildings and improvements remains to be seen. We at Astor Weiss are staying on top of this situation and are in the process of filing appeals for clients. Please ask your questions and discuss the 2018 substantial increases in real estate taxes and the City Use and Occupancy Tax by calling Ron Glazer, David Mandel or Therese Allison at 215-790-0100. You may have us request a First Level Review (FLR) by filing no later than May 26, 2017. If you are not satisfied with the outcome of the review or decide to skip the FLR process altogether, you may have us file a Formal Appeal with the Board of Revision of Taxes (BRT). Formal appeals are due to the BRT by the first Monday in October (October 2, 2017).
NEW CHILD SUPPORT GUIDELINES
Pennsylvania has enacted new child support guidelines which will become effective May 1, 2017. These guidelines may affect your child support. You may want to determine whether or not your child support is subject to change under the new child support guidelines. Please let us know whether we can be of any assistance in this regard.
MODERNIZED LAWS FOR NON-CORPORATE ENTITIES
On November 21, 2016 Act 107 was adopted by the Pennsylvania legislature, effective February 21, 2017, adopting a new partnership act, a new limited partnership act, and a new limited liability company act (LLCs). In addition revisions were made to the laws governing limited liability partnerships (LLPs) and limited liability limited partnerships (LLLPs). LLPs and LLLPs are widely used by legal, medical and other professionals. Of particular note for LLPs and LLLPs in the new legislation is the revision of Section 8204 of the Associations Code. In brief, under prior law a partner in an LLP or a general partner in an LLLP was not vicariously liable for the malpractice or other wrongful acts or misconduct of other partners but was personally liable for other obligations of the LLP or LLLP. Under the newly adopted legislation, partner liability will be essentially the same as member liability in LLCs and shareholder liability in corporations, i.e. complete limited liability with respect to partnership liabilities of any kind arising after the effective date, other than the partner’s own malpractice or other misconduct. Also, the nature of the liability of a partner for the malpractice or other wrongful acts of a lawyer or other person under the partner’s supervision and control has been modified. Is this a subject of interest to you? By: Alan Molod
The Problem with Joint Legal Custody: When Household Rules Differ
Attorney Julie Auerbach was interviewed yesterday on “The American Law Journal” presents “The Problem with Joint Legal Custody: When Household Rules Differ” . The Problem With Joint Legal Custody On Monday’s ‘The American Law Journal’ The Legal Intelligencer March 31, 2017 “Today courts are leaning more towards 50/50,” says family law practitioner Julie Auerbach. But are judges equipped to handle what divorced couples argue most about when raising kids these days? Tonight at 7 p.m. on the Philadelphia CNN-News affiliate WFMZ-TV, “The American Law Journal” presents, “The Problems With Joint Legal Custody: When Household Rules Differ.” Christopher Naughton welcomes family law practitioners Donald F. Spry II of King, Spry, Herman, Freund & Faul; David Ladov of Obermayer Rebmann Maxwell & Hippel; and Mary Vidas of Blank Rome. Joining the discussion is author and director for the Center for Couples and Family Solutions, Dr. Debra Castaldo. The program examines the most difficult challenges facing divorced parents that were rare or unheard of a generation ago: cellphone/internet discipline, homeschooling, passports and air travel for kids, corporal punishment and “meeting dad’s girlfriend” for the first time. In an opening feature report, The American Lawyer executive editor Gina Passarella interviews family law attorneys Lynne Gold-Bikin of Weber Gallagher Simpson Stapleton Fires & Newby, Julia Swain of Fox Rothschild, Auerbach of Astor Weiss Kaplan & Mandel and solo practitioner Lee Schwartz. “The American Law Journal” is the recent winner of two mid-Atlantic Emmy Awards for 2016. All programs are available at www.LawJournalTV.com.
Changes affecting Commercial Powers of Attorney in Pennsylvania
On October 4, 2016, Governor Wolf signed into law House Bill 665 (Act 103 of 2016) which clarified certain sections of the Pennsylvania power of attorney law that went in effect on January 2, 2015 (Act 95 of 2014). The changes were aimed at correcting issues with commercial powers of attorney. All changes in Act 103 took effect on October 4, 2016 and apply retroactively to January 2, 2015 (i.e., the effective date of Act 95). 1. Commercial Powers of Attorney are not Subject to the Notarization or Acknowledgement Requirement Under Act 95, all powers of attorney executed after January 1, 2015 had to be witnessed by two individuals and be notarized or acknowledged. While commercial powers of attorney were not required to obtain two witnesses, they were subject to the notarization or acknowledgement requirement. The notarization/acknowledgement requirement was a cumbersome requirement in the commercial setting. Act 103 now excludes commercial powers of attorney from the notarization or acknowledgement requirement (unless the document is being recorded). 2. Agent Duties not Applicable to Commercial Powers of Attorney Act 95 made agents of all powers of attorney subject to certain duties. One of those duties required the agent to act in the best interest of the principal. This requirement was difficult for agents under commercial powers of attorney where the agent was authorized to enforce a security agreement or execute a confession of judgment against the principal, particularly in a loan or lease situation. In order to comply with the law, banks and attorneys inserted lengthy waiver language into the documents. Act 103 now exempts agents under commercial powers of attorney from the standard agent duties. 3. Expanded Definition of Commercial Powers of Attorney Under Act 95, the only powers of attorney for entities (i.e., corporations, LLCs, partnerships, etc.) that were exempt from certain statutory requirements were powers of attorney that were “contained in the governing documents” of an entity or powers of attorney in a voting proxy. This definition was limiting and not in-line with other states. Act 103 expands the definition of commercial powers of attorney that are exempt from the statutory requirements to also include any power of attorney that is “authorized by the law that governs the internal affairs of a legal entity” or “which a director, shareholder, partner, member or manager authorizes others to do things on behalf of the entity.” 4. Attorneys may Acknowledge Powers of Attorney Under Act 95 it was not clear if an attorney could acknowledge a power of attorney. Act 103 confirms that an attorney may acknowledge the execution of a power of attorney provided the attorney was not a witness to the power of attorney and such acknowledgement was in a manner that is authorized by law. Conclusion The changes in Act 103 correct the issues that Act 95 created for powers of attorney used in commercial transactions and provide some much needed clarity for attorneys and commercial institutions. If you have questions or would like additional information regarding the impact of Act 103 on commercial powers of attorney, please contact David Workman, David Mandel or Daniel Levine.
New Jersey Estate Tax Repeal
On October 14, 2016, Governor Christie signed a new law that will eliminate the New Jersey estate tax. Currently, decedents residing in New Jersey with taxable estates exceeding $675,000 may be subject to New Jersey estate tax. With the new law, New Jersey residents who die during 2017 will not be subject to the New Jersey Estate tax unless their taxable estate is greater than $2,000,000. Starting January 1, 2018, the New Jersey Estate tax is repealed. This law does not impact the New Jersey inheritance tax. The New Jersey inheritance tax is based on the relationship between the decedent and the beneficiary receiving the assets from the decedent. Qualifying charities and Class “A” beneficiaries such as a spouse, lineal ancestors, descendants and stepchildren are exempt from the New Jersey inheritance tax. The rate of tax imposed on transfers to other individuals is based on the individual’s assigned “Class.” As a result of this new law, you may want to review your current estate plan in order to confirm that the documents in place will continue to accomplish your goals in a tax efficient manner.
Using Equity Vesting as an Incentive
The opportunity to own equity in a company is one of the central reasons entrepreneurs found a business, and promising future equity to potential employees helps new companies attract the skilled people necessary to run and grow a successful business. Therefore, the promise of eventual equity ownership provides a powerful motivator for founders and employees to contribute their skills and expertise to building a business, and is one of the most valuable assets a new, pre-revenue, company has. For these reasons, many founders decide to subject both founder and employee equity to “vesting”, meaning that full legal ownership of the equity accrues over time. Vesting can take multiple forms, such as granting a founder or employee an option contract to purchase equity units in the future, using a restricted unit arrangement that transfers some, but not all, of the benefits of equity ownership, or reserving a right to repurchase equity units that eventually lapses. Further, the triggers that transfer full ownership of the equity can vary, and include the simple passage of time, the achievement of corporate milestones, or revenue targets. However, regardless of the specific structure a vesting arrangement takes, subjecting founder and employee equity grants to vesting motivates these people to remain involved in the business, and to continue contributing to their skills to developing the company. If you would like to find out more about equity management when it comes to starting your own businesses, you may want to visit somewhere similar to Early Growth to find out more. Our law firm has helped founders structure vesting arrangements for founder and employee equity. If you are considering starting a business and would like to learn more about how our law firm can help you succeed, call us, let’s talk.
How and Why we practice law
As the only attorney who sits on the Board of Directors of the Brain Association of Pennsylvania (BIAPA), I get a lot of referrals from both attorneys and medical professionals who treat patients with traumatic brain injuries (TBI’s). Most of the cases that make it to my desk involve individuals and their families who have suffered great losses because of the catastrophic nature of the injury. With many of the “cases” it is difficult to assess what actually happened or how the injury occurred. I write about a case involving an 18 year old female who sustained a profound and permanent TBI because of a car crash. The case was referred to me by a rehabilitation nurse who was assigned to Jill’s care. Jill’s parents were at a loss thinking about Jill’s future, especially on how to pay the hundreds of thousands or millions of dollars for Jill’s future care and treatment. Jill was driving her car at the time of the crash. It was, by all accounts, a one-car crash. Jill was on a winding road in upstate Pennsylvania. From the police accident report, it looked like Jill lost control of the car and careened off of an embankment, flipping several times before finally hitting a tree….it sounded like a scene out of a movie. It was roughly a month after the crash and after Jill was admitted to a very well-known brain injury facility in Philadelphia before her parents consider exploring legal action or even speaking with a lawyer. They spoke to their family lawyer who advised them that there was no other vehicle so it appeared to be no case. The family lawyer nevertheless referred Jill’s parents to a lawyer who deals specifically with personal injury cases. This lawyer also echoed what the family lawyer said and advised that there was no case. Frustrated, Jill’s parents sought the counsel of two other personal injury lawyers in Philadelphia who also advised there was no case. They were rejected by four lawyers because the case, if any, was not clear cut. So why is Astor Weiss different? When the situation was brought to our attention by the rehab nurse and after she explained the rejection and frustration that Jill’s parents experienced we agreed to investigate the crash in a more advanced manner….we began thinking out of the box. Clearly there wasn’t another vehicle to pursue which was apparently the thought process of the other four lawyers who reviewed and rejected the case. Jill had no recollection of what happened, which is not uncommon for individuals who sustained a TBI. We had our work cut out for us. We elected to make the investment, both in time and money. We weren’t sure what, if anything we would find. We did exhaustive research, we dispatched private investigators to speak with the investigating police officers, surveyed the scene and investigated other prior crashes on this section of the roadway, we hired an accident reconstructionist and put together forensic evidence to help us assemble a working theory of the crash, we obtained possession of Jill’s vehicle and then had it examined for its crashworthiness, we had the tires and brakes examined and tested by experts. Four other lawyers before us did not do any of this. While doing our investigating, we closely monitored Jill’s physical and mental condition, visiting her in the hospital and when she was discharged making frequent visits to her home to keep her and her parents closely apprised of what we were doing. The case was settled shortly before the trial for enough money to give the family some sense of ease that Jill would be financially cared for the rest of her life. Jill is showing slight signs of improvement but will nevertheless endure a lifetime of suffering which Astor Weiss Kaplan & Mandel made just a little bit more bearable. This is how and why we practice law. David Woloshin Chairman, Personal Injury and Litigation Department Astor Weiss Kaplan & Mandel
The term “Parental Alienation” is frequently used in child custody disputes. There is some debate as to whether or not Parental Alienation is actually a psychological disorder. Regardless of whether or not parental alienation is a classified, clinical disorder, divorced or separated parents must be sensitive to the harmful effects on children when one parent tries to alienate the children from the other parent. Parents may be alienating their children from the other parent without even realizing it. Among the ways that parents may unwittingly cause parental alienation are: letting the children decide when and if they want to see the other parent, using children to communicate with the other parent and failing to share information with the other parent- such as schooling, medical issues, and activities. Other ways include refusing to let the children take clothing, toys, and other personal belongings back and forth between parents’ homes, failing to be flexible with custody schedules or reacting with hurt or sadness when the children report having enjoyed their time with the other parent. In short, any attempt by one parent to marginalize the role of the parent in the children’s lives may l adversely affect the children. Whether it is considered “Parent Alienation” or not, a parent does his or her child a disservice by failing to recognize the equally important role that the other parent has in the life of the child.
ASSET PROTECTION AND OFF-SHORING
Hidden assets – this is a problem in divorce and support cases, tax avoidance, corporate liability and debt collection. The holding of “off-shore” accounts may be used to subvert family law obligations, judgments and legitimate tax obligations. Some lawyers work to help clients with what they call “asset protection,” which means the creation of trusts and shell companies and the like. The recent revelations of the Panama Papers, and transfer of operations and funds by large corporations to friendly countries overseas, have raised ethical and other questions in the media, and raised the public’s awareness. What happens when someone has cash income, whether from a legal business or illegal activities, and parks it in an account in a Caribbean bank? Perhaps they get a credit card payable from that account. How can a litigant discover these assets? We have experience at finding ways to help. Let’s discuss the problem together. David I. Grunfeld
VALUING ASSETS IN DIVORCE
When divorce includes property division claims, one of the more difficult tasks is determining how to value the assets, which must be done unless the parties can agree on values. For real estate we usually need a formal appraisal, although sometimes a realtor letter will do. To get net value, we need payoff statements for all mortgages, liens and tax balances. For bank and securities accounts, we need copies of statements for the relevant dates, which may be as of date of marriage, opening of the accounts, date of separation and presently. Your lawyer will advise which is appropriate and necessary. For valuable personal property, such as jewelry, art, collections, antiques, electronics and the like, specialized appraisers may be needed, but they are expensive. Home insurance policy addendums would be helpful. For retirement plans, lawyers usually engage a specialized actuary to calculate the values acceptable to a Court under our case law. All this may seem daunting, but our experience can help us work with you on it. David I. Grunfeld
PROTECTION FROM ABUSE IN PENNSYLVANIA
Pennsylvania has a strong law protecting people from physical abuse. Generally speaking, persons eligible for relief are family and household members, sexual or intimate partners, and siblings. Covered acts of abuse are causing bodily injury, sexual assault, false imprisonment, physical abuse of minor children, as well as placing someone in imminent fear of any of those acts. Complaints can be filed with county courts of common pleas or district justice magistrates. Temporary orders can be obtained, and final orders issued after trial. Remedies include stay-away orders, eviction from common residences, reimbursement for monetary losses such as medical bills, wages, and property damage, turnover of weapons, and counsel fees. Orders can be effective for up to three years. Violators of orders can be held in contempt and fined and/or imprisoned. The courts take these acts seriously and we can provide counsel and representation in these matters. David I. Grunfeld
How to get married in Pennsylvania
Just as there are laws regarding divorce in Pennsylvania, there are laws about marriage. These laws address issues such as obtaining a marriage license, a required 3 day waiting period, obtaining a syphilis test and taking an oral examination. There are restrictions on who individuals can marry, including, minors, incompetents, persons under the influence and relatives.The laws also set forth who may officiate over a wedding, what is done with the marriage certificate after the wedding, and when is a missing spouse presumed deceased. Provisions for annulling a marriage also exist. Like divorce, getting married may be a little more complicated than you thought. Ask our family law lawyers to help with any needed interpretation. David Grunfeld, Esquire
Exercising Your Legal Custody Rights
KNOW YOUR LEGAL CUSTODY RIGHTS Parents whose children do not reside primarily with them retain, nonetheless, an equal say in major decisions affecting the children. Pennsylvania has two forms of child custody: legal custody and physical custody. Physical custody is defined as the actual physical possession and control of the child. Legal custody is defined as the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions. Physical custody can be divided between parents in any number of ways. But legal custody is typically shared equally between parents. While it is often harder for parents whose children do not reside primarily with them to exercise their legal custody rights, effective strategies are available that would aid these parents in securing an active role in major decisions affecting the children . Doctors, teachers, mental health professionals and other individuals who are in contact with your children often lack a clear understanding of the legal rights of divorced or separated parents. Divorced or separated parents need, in effect, to educate these third parties by informing them that both parents have the same rights and are entitled to the same information. For example, if a parent is having difficulty obtaining information from a child‘s school, the school should be given a copy of the custody order which sets forth the legal custody rights of both parents. School officials may not be sure to whom to release information, but a custody order will conclusively resolve any such confusion. Next, parents should not rely upon the other parent to provide them with school information. Both parents should obtain the information directly from the school. Similarly, parents should not rely upon the other parent to provide them with medical or mental health treatment information. Parents should be proactive in obtaining this information directly from the provider. Advising the school or medical provider of the parent’s interest and involvement with the children will likely facilitate the school or medical provider’s effort to ensure that both parents are kept informed of any developments involving their children. It is not uncommon for a therapist or a counselor to treat a child without the permission or knowledge of both parents, even though such unilateral treatment violates the treating professional’s code of professional responsibility. If parents learn that their children are in treatment by mental health professionals, they should immediately inform the therapist or counselor to suspend the treatment or, alternatively, if they have no objections, that the provider share treatment and progress information with both parents, not just with the parent whom initiated the treatment. Finally, regular communication between parents regarding medical, educational and religious decisions will also increase both parents’ abilities to exercise their legal custody rights. Parents often avoid communication with one another out of mutual animosity, which only serves to impede one, or both parents participation in major decisions affecting their children. It is also advisable that parents not wait until the other parent reaches a major decision before raising an objection. . Both parents should take an active role in discussing and reaching major decisions for their children from the outset. Parents often complain that the other parent interferes with, or prevents them, from exercising their legal custody rights. Courts are sensitive to this issue. If there is a demonstrated pattern of one parent obstructing the legal custody rights of the other parent, or if one parent uses his or her legal custody rights to prevent a child from receiving necessary treatment or educational assistance, a court can take away or limit one parent’s legal custody rights. For example, if a parent refuses to place a child in counseling despite a demonstrated need, the court could limit or suspend altogether the legal custody of that parent regarding mental health issues, and give the other parent sole or primary legal custody in that area. Being mindful of your rights as parents and being proactive in the above ways will assist divorced or separated parents in playing an active role in the major decisions affecting their children.
Step-parents and child support
In December 2015, the Pennsylvania Supreme Court held that under certain circumstances, a step-parent can be required to pay child support for his or her former spouse’s biological children. To become responsible to pay child support, the step-parent must take affirmative legal steps to assume the same parental rights as the biological parent. (more…)
A common concern when a couple uses a woman as a surrogate to carry their child is that the surrogate will become attached to the child she is carrying and fight to retain custody of the child. In a recent Pennsylvania Superior Court case, the opposite occurred. The woman who used a surrogate to become a mother tried to disavow herself of any responsibility for the child. (more…)
Avoiding the International UCC
In 1988, the United States ratified the “United Nations Convention on Contracts for the International Sale of Goods” (the “International UCC”) and virtually all leading trading nations have adopted that law. The International UCC preempts the Uniform Commercial Code used by all states in the United States (“U.S. UCC”) unless parties to the contract clearly opt out of the International UCC. Without that opt out, every sale of goods between a U.S. company and non-U.S. company is governed by the International UCC. (more…)
Exclude “Invisible Terms” from a Contract
A Pennsylvania court may interpret a written commercial contract by defining words based on “industry” meanings known as “trade usage.” Courts will go so far as to add an “invisible” term by inferring it into the contract. For example, a Court may add terms not stated in the contract such as terms inferred from course of dealing and trade usage. What are these “invisible terms?” A course of dealing is a sequence of previous conduct between the parties to a contract which establishes a meaning of a contract term. As an example, a buyer of widgets for three years paid a seller on the 15th day after the goods were delivered and neither side complained about that practice. The payment by the 15th day after delivery becomes part of the contract. A “usage of trade” is based on industry practice and refers to a use having regularity of observance in the trade. As an example, company A agrees to sell 1,000 feet of “San Domingo mahogany” to company B. By usage of mahogany dealers, San Domingo mahogany means mahogany of a certain density and it does not have to come from San Domingo. Unless otherwise agreed between the 2 companies, a court would find that the meaning based on density applies. Generally, a business attorney would do not advocate for a contract to be governed by these “invisible” terms. If a buyer believed in his mind that San Domingo mahogany must come from San Domingo and that type of product was very important to his business, the implied term that the mahogany did not have to come from San Domingo could have a disastrous impact on the business. The rights and obligations in a written term are easier to understand than are the rights based on an unwritten course of dealing or industry-wide usage of a term. Comment 2 to UCC § 2-202, provides that course of dealing and usage of trade will be assumed part of the contract, “unless carefully negated.” The language in the contract has to be strong to negate those terms. The following is an example of a strong term: Evidence of trade usage or of course of dealing must not be used (a) to provide additional terms to this contract and/or (b) to interpret the terms of this contract. That term is very easy to add to a contract and it can avoid the “invisible” terms but in practice it is difficult to find contracts that use that type of term. W. Mark Mullineaux
Dividing Retirement Plans
Retirement plans accumulated during the marriage are considered marital assets and are subject to division between spouses upon divorce. In addition, the increase in value of retirement plans acquired before marriage are also marital assets. (more…)
Clearly Defining Terms in a Contract
This article deals with how courts interpret contract terms in a written contract between businesses. In Pennsylvania, the general rule is a court will enforce a contract using the “ordinary meaning” of the words in the contract and will not consider evidence outside the “four corners” of the contract. There are, however, significant exceptions to that rule. (more…)
Child Custody Holiday Schedules
Disputes between parents often arise over the division of holidays. Having a set holiday schedule eliminates these disputes and allows each parent to enjoy the holiday time they have with their children. Courts typically alternate many holidays from year to year between parents. Certain holidays, such as Christmas, Thanksgiving, and Easter, however, are divided every year between parents. (more…)
Cheating Spouses: Do courts care?
The ever evolving world of technology has led our society to some amazing advances in efficiency, green resources, health benefits and education. Technology also changed the ways in which humans interact through social media platforms, creating a new kind of connectivity. For instance, the dating world has expanded through online dating websites. While many may tout the benefits of constant interaction and access to a greater population of people, there have been some negatives too. A new kind of marital misconduct has recently been in the news as a result of a different kind of dating service. Ashley Madison, a website boasting the “world’s leading married dating service for discreet encounters” was hacked. The identities of the website’s members were published after the hackers threatened to release the identities of those using the website whose slogan is “Life is short. Have an affair.” On August 18, 2015, the hackers dumped 9.7 gigabytes of data obtained from the website. For those users in Pennsylvania whose infidelity leads to a divorce, it is important to gain perspective from a divorce lawyer on the subject of martial misconduct. Couples looking to move forward with divorce proceedings in Florida might want to look for lawyers experienced in family law jacksonville fl to help them through this tricky and emotional process. They can expect the issue of marital misconduct to be raised in a number of potential ways. (more…)
Back to school issues
When children go back to school, many child custody disputes can arise between parents. Access to school records, back to school night, parent teacher conferences, and report cards can all become subjects of dispute between parents. Parents may also have disputes over which school district the children should be enrolled in or should the children go to a public school, a private school or a parochial school. Understanding the rights and obligations of parents will assist them in addressing these issues and reaching agreements, which is why Astor Weiss Kaplan & Mandel, LLP encourages parents to contact a family lawyer for child custody assistance. (more…)
Changes to Mechanics Lien Law
Are you a residential owner of real estate? Are you looking to make improvements to your home? Perhaps you have just purchased a gorgeous new property thanks to a real estate agent like Reali? If so, you should read the following alert with respect to recent changes made to the Pennsylvania Mechanics’ Lien Law (the “Lien Law”). (more…)
Preparing for the Initial Meeting
Prior to meeting with a family law attorney for your family law-related issues, you should consider gathering and preparing the following information: DIVORCE, CHILD AND SPOUSAL SUPPORT ISSUES Prepare a listing of your assets and debts, including bank accounts, retirement accounts, mortgage obligations, and credit card debt. Gather and organize copies of any financial information regarding your assets, income, and debt, such as tax returns, pay stubs, W2s, bank statements, brokerage statements, retirement statements, and credit card statements. Be prepared to discuss your income, including any benefits received through your employment, such as medical insurance, employer contributions to retirement accounts, and bonuses. Prepare a list of your monthly expenses, including mortgage/rent, utilities, car payments, insurance, food and clothing expenses. CHILD CUSTODY ISSUES Prepare a brief summary of each parent’s role as a caretaker of the children for your family law lawyer‘s reference. Include the following categories: Managing medical/dental/eye care, such as scheduling and taking children to appointments; Educational issues such as selection of classes, homework, teacher conferences, career advice; Extracurricular activities, such as selecting the activities and participating in them; Religious training and education; Discipline; Transportation to school, activities and social events; Be prepared to discuss each parent’s work schedule and whether there is a need for child care. … To find out more about what to expect when meeting your family law lawyer for the first time, contact Astor Weiss Kaplan & Mandel, LLP today by visiting their website.
Summertime custody issues
Once school is out and summertime rolls around, a whole new set of issues and areas of conflict can arise between separated parents. Separated parents need to agree upon a schedule of activities, vacations, and child care for their children. If necessary, courts can resolve these issues if agreements cannot be reached. But it is always better for the parents and the children if they can resolve these custody and support issues with the help of a lawyer and without court intervention. (more…)
After you are divorced
You got your divorce decree or had your support or custody hearing, but that doesn’t mean that you won’t be seeing much of your family lawyer anymore.. In actuality, you may need to build a relationship with your attorney until each of your children turn 18. Here are some things to think about. (more…)
Changes to Power of Attorney Law
On July 2, 2014, the General Assembly of the Commonwealth of Pennsylvania enacted Act 95 which amends Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes. Act 95, amongst other modifications, provides for the form of power of attorney, for the implementation of the power of attorney and for liability, and provides validity to the power of attorney. Act 95 became effective on January 1, 2015 and affects all instruments used in commercial transactions which include a clause to confess judgment. Specifically, Act 95 states that for instruments used in commercial transactions that include a warrant of attorney conferring authority to confess judgment, such instrument must be “acknowledged before a notary public or other individual authorized by law to take acknowledgments.” The customary documents which typically incorporate a warrant of attorney conferring authority to confess judgment include, but are not limited to, promissory notes, mortgages, guaranty agreements and commercial lease agreements. In layman’s terms, if documents that incorporate a confession of judgment clause are not notarized, the warrants of attorney to confess judgment will not be enforceable. Prior to Act 95, it was generally the practice of Pennsylvania practitioners to only require that documents be notarized when they were to be recorded in the public records. However, as a result of the provision of Act 95, moving forward, ALL instruments used in commercial transactions which contain a confession of judgment provision and/or “attorney-in-fact” provision should now be acknowledged before a notary. Additionally, it is also prudent to have all amendment and modification documents which reinstate a confession of judgment provision to be acknowledged before a notary public. Please contact Daniel Levine, Esquire at email@example.com if you have any questions regarding Title 20 or Act 95. Daniel Levine can also be contacted if you require the services of a real estate attorney. Philadelphia residents and those in the surrounding areas can seek legal counsel from the lawyers at Astor Weiss Kaplan & Mandel, LLP. Visit the website at https://astorweiss.com/ to learn more about each lawyer and their respective practice areas. Astor Weiss Kaplan & Mandel, LLP attorneys have many years of valuable experience to help clients with any of their legal issues.
New Jersey Alimony Laws
Divorce lawyers at the Philadelphia law firm, Astor Weiss Kaplan & Mandel, LLP, serve clients in the Philadelphia metropolitan area and in the state of New Jersey. In recent months, the state of New Jersey enacted significant changes to their alimony laws. Prior to the enactment of the changes, New Jersey couples married for ten years or more had some predictability in what they could expect to receive and to pay in alimony if ever faced with a divorce. Permanent alimony was traditionally granted in those cases. (more…)
Changes to the Power of Attorney Law
Granting a Financial Power Of Attorney (“POA”) gives an individual (the “Agent”) the ability to manage your assets (the “Principal”) and make decisions on your behalf during your lifetime. As soon as the POA documents are signed, they are active immediately, which makes choosing someone you trust essential. In Pennsylvania, a new POA law was passed in 2014 that changed may aspects of the old POA laws. Some of the major changes are explained below by our estate lawyers in Philadelphia at Astor Weiss Kaplan & Mandel, LLP. (more…)
Estate Planning for Same Sex Couples
Same-sex marriages are now recognized in Pennsylvania. As a result of this recent development, same-sex couples now have more opportunity within the area of estate planning. Any individual that signed documents with an estate planning attorney in Philadelphia prior to the change in legislation should revisit their wills and other estate documents in order to make sure that their documents are still effective and produce the required results. (more…)
Is Mediation right for you?
As discussed in our other article, Mediation and Family Law: Advice from Our Lawyers in Philadelphia, mediation is a process whereby a third party facilitates a conversation between you and your spouse to aid you in reaching a resolution. Taking the court route can be an expensive endeavor, making mediation a great choice for those that want to avoid this process and potentially save on fees. Our family lawyers in Montgomery County understand the ins and outs of this process and would like to outline some of the benefits to mediation as a means of conflict resolution during a divorce. (more…)
Due Diligence-Residential Property
Knowing the home-buying basics (see https://rodrockhomes.com/home-buying-basics/) is one of the many steps you can take towards purchasing a property. Prior to purchase, it is the responsibility of the buyer to perform a thorough inspection of the property, often referred to as “due diligence.” The whole process of buying a house means there is a lot to consider. Just like when you are looking at properties, using the services of real estate companies like William Pitt Realty can at least take some of the pressure off when it comes to finding this house that meets your requirements. The same goes for the inspection too. For anything though, be sure to take your time to decide, as this is a big decision for anyone. Astor Weiss Kaplan & Mandel, a real estate firm, recommends that due diligence is always performed as the primary step when purchasing property, like an Aurora condo for sale, as it will save time and money in the long run. (more…)
PA Income Taxes and Discharge of Debt
In a recent Pennsylvania Supreme Court case, the court upheld the Commonwealth court’s decision that nonresident limited partners, in a partnership with the sole purpose of investing in property located in Pennsylvania, are responsible for Pennsylvania income taxes on their share of income from a discharge of debt as a result of a foreclosure. Wirth v. Commonwealth of Pennsylvania, PA Supreme Court, Nos. 82 MAP 2012, 83 MAP 2012, 84 MAP 2012, 85 MAP 2012, June 17, 2014. Facts In 1985, a partnership was formed pursuant to Connecticut law (the “Partnership”) for the sole purpose of purchasing and managing the property located in Pittsburgh, Pennsylvania (the “Property”). In total there were 735 limited partners; only 25 were Pennsylvania residents. All of the limited partners were passive investors and did not take part in the active management of the Property. The Partnership purchased the Property in 1985 for $360 million; $52 million was paid in cash and the Property was pledged as collateral to obtain a nonrecourse note for the balance of $308 million. In 2005, the Property was foreclosed on and the Partnership reported a gain equal to the unpaid balance and the accrued, compounded interest, totaling $2,628,491,551. The Pennsylvania Department of Revenue subsequently assessed an income tax against each of the limited partner’s share of the $2,628,491,551 gain. In real estate terms, a foreclosure is a home that belongs to the bank, which once belonged to a homeowner. If you would like to learn more about buying a foreclosed home, you can head to Auction.com. Analysis/Holdings The court first determined that the Commonwealth of Pennsylvania had the legal authority to impose an income tax on the nonresident limited partners because the limited partners had enough “contacts” with the Commonwealth. Next, the court held that the discharge of the nonrecourse debt associated with the foreclosure was a taxable event and subject to Pennsylvania income tax. Therefore, the nonresident limited partners were subject to Pennsylvania income tax on their share of the $2,628,491,551 gain. Lastly, the court held that the nonresident limited partners could not “off-set” their Pennsylvania income with losses from their partnership interests because those losses technically occurred in the state where the limited partner was domiciled. * * * The above case emphasizes the need for an investor in a “flow through” entity, such as a partnership, to stay abreast of the changing tax landscape in Pennsylvania. The income tax, real estate and partnership attorneys located at Astor Weiss Kaplan & Mandel, LLP have over 50 years of experience in assisting our clients navigate through the complex and evolving laws that affect all investors doing business in the Commonwealth of Pennsylvania. Please call David Workman or Daniel R. Levine of our Tax practice group if you would like to discuss how Astor Weiss Kaplan & Mandel, LLP can counsel your business.
Disclosure of Assets and Income
Managing the finances of a marriage can be tricky business. Often one spouse is delegated the role of the banker, the financial advisor and the bookkeeper and the other spouse does not have a clear understanding of the assets or even the income of the other spouse. Dividing the assets and income of the parties are even trickier if the marriage fails and a divorce occurs. As well as confusion on financial assets, many couples are unclear on the cost of a divorce; Lloyd Platt and Co cover this for anyone with questions on the matter. Pennsylvania divorce and support laws require both spouses to disclose all of their assets and income to one another. Lack of disclosure of assets and income can lead to the impositions of penalties and sanctions on the non-disclosing spouse. The courts expect both spouses to come to the table with clean hands. Each spouse must proactively disclose to the other spouse all of his or her assets and income. But there is often a lack of trust between divorcing spouses as to the other’s disclosure of assets and income. This can lead to contentious disputes and even litigation. If a spouse suspects that his or her spouse is not fully disclosing assets or income, there are legal tools available to compel the other spouse to fully disclose his or her assets and income. Such legal tools include requiring the other party to produce financial records regarding their assets and tax returns, in a process known as discovery. Subpoenas can be sent to third parties to obtain financial records, such as financial institutions and employers. Depositions can be taken of a spouse or third parties to investigate and question the finances and income of a spouse. If there is a business involved, a forensic accountant can be hired to investigate the income of the spouse and appraise the business. An accountant like Dave Burton could potentially be hired to look through these assets and work out financial matters that are important for the case. If an agreement is reached as to the division of assets and it is later discovered that a spouse failed to disclose a marital asset, the court can open up the agreement and impose sanctions and court costs on the non-disclosing spouse. If a spouse fails to disclose all of his or her income for support purposes, and the income is later discovered by the other spouse, the non-disclosing spouse can be sanctioned by the court and the amount of support will be re-adjusted to include the additional undisclosed income. Individuals engaged in a divorce proceeding must have a full understanding of their duty to disclose all of his or her assets and income. They must also be aware of the legal tools available to them to gain a full understanding and disclosure of the income and assets of their spouse.
Estate Planning After Divorce
When it comes to estate planning, it is important to enlist the services of a trusted professional that can guide you in the right direction. Planning what happens to your estate is crucial to ensuring that your family is supported and that your estate successfully passes to the intended beneficiaries. (more…)
Due Diligence-Commercial Property
Generally, a buyer will purchase commercial property in its “as-is”, “where-is” and “with all faults” condition. The two biggest protections the buyer has when purchasing a property is the representations and warranties of the seller set forth within the agreement of sale, and the ability of the buyer to perform an inspection of the property, known as due diligence. Consequently, it is important that a buyer understand the negotiation process so they are able to obtain the strongest possible representations from the seller and obtain the broadest ranging property inspection. One way of doing it through commercial or resident note buyers, who would purchase the contract between both parties, allowing the buyer to pay for the property. Companies like Amerinote Xchange offer information on how to go through this process for those who are interested in it. (more…)
Relocation with children
One of the hottest issues today in family law involves custody relocation cases. If you or your spouse wants to move out of the area, that is going to have an impact on the existing custody arrangement where you both see your children on some set schedule. Whether you are a mother or the father, relocating with your child to another state can be a quite difficult decision. However, it is critical that the decision made is in the child’s best interests and does not undermine the custody or visitation rights of the other parent. Parents who are seeking to move out to another state should first consider getting the help of an experienced family lawyer or a child custody attorney to ensure that legal requirements are met before the relocation. If you’re unfortunately going through a divorce and you’re looking to move away from your ex-partner, hiring a removal and storage company can relieve a lot of stress in moving everything about, companies such as JIT Removals and Storage are able to help you pack up and store your possessions, for other items you might wish to be shipped and relocated, such as your vehicle for instance, you’ll be wanting to look at different car shippers, that are able to fulfill your vehicle relocation request. Regardless of where you want to move to, from looking into something similar to buford south carolina real estate if South Carolina is your preferred choice, or even if you are thinking of moving to New York, as long as you go about it the right way and get the help you need to make this transition easier for you and the family, that’s all that matters. You want to make this as stressful free as possible, as going through a divorce can be tough. For the best advice, and the top family lawyers, visit our website www.astorweiss.com. (more…)
Dying Without a Will
If you die without a will in the Commonwealth of Pennsylvania, certain assets, including property, will be distributed based on the laws Interstate Succession. It is important to note that not all property is passed down by will. Certain assets, such as assets held in joint tenancy or tenancy by the entirety, policies of life insurance, Individual Retirements Accounts (IRAs) or other contractual agreements, are passed down by different methods. The laws of Interstate Succession in Pennsylvania oversee the distribution of an individual’s assets if the individual dies without a will. The first person in line to receive the deceased’s assets is the spouse, followed by children, parents, siblings and other relatives. If there is no fit substitute then the person’s estate is left to the Commonwealth of Pennsylvania. Spouse & Children The Interstate Succession laws in Pennsylvania state that if an individual is married at the time of their death and is not survived by any children then the spouse will receive the entire estate. However, if the deceased is survived by a spouse as well as children, who were also the surviving spouse’s children, the surviving spouse receives the first $30,000 and one-half of the rest of the estate. If one of the existing children is not the surviving spouses’ child, the spouse receives only half of the estate. Spouse & Parents – No Children If the deceased’s spouse and parents survive and there were no existing children, the surviving spouse would be entitled to the first $30,000 plus half of the rest of the estate. No Spouse When there is no surviving spouse the distribution of the deceased individual’s assets and property are distributed as follows: (1) Children, Parents, Siblings & their Children If there are still living children, the estate is split between them. If there are no children, parents of the deceased are next in line to split property and assets amongst themselves. If there are no living children or parents, the estate goes directly to the children of the deceased’s parents (aka their siblings and their children). (2) Grandparents & Other Relatives No spouse, children, parents, or siblings means that the estate goes to the grandparents of the deceased. Assets and property are split between maternal grandparents and their children and paternal grandparents and their children, each receiving half. If there are currently no surviving grandparents, the estate is distributed between other relatives, such as uncles and aunts and their children and grandchildren. (3) Pennsylvania If none of the above-mentioned individuals survive, the estate is given directly to the Commonwealth of Pennsylvania. … As one can see, these rules are not tailored to an individual’s specific situation and may not accomplish the individual’s goals. For example, you may want to give some of your estate to a charity or to a good family friend. More importantly, you will want to select the person or persons who will care for your minor children if you and your spouse die. These are just two important reasons why it makes sense to draft a will. The estate planning attorneys at Astor Weiss Kaplan & Mandel, LLP have over 40 years of experience advising clients on their estate plans. For additional information on why a will is beneficial for your estate plan, feel free to contact David Workman or Daniel Levine.
Pennsylvania Inheritance Tax
Pennsylvania does not charge an estate tax. However, Pennsylvania is one of the few states that impose an inheritance tax on property owned by a resident of Pennsylvania, and certain property located in Pennsylvania owned by a nonresident. This is different in other locations of course. If you are from Canada you should speak to people who understand that tax system, such as canadiantaxamnesty.ca. Here we will aim to inform on the Pennsylvania system. An Estate Tax is Not The Same as an Inheritance Tax An estate tax is charged on the entire estate regardless of whom the beneficiaries might be. However, an inheritance tax is based on who receives the property, so if you aren’t sure about the difference between an estate tax and inheritance tax, you may want to find a solicitors you can trust to help you make sense of these different terminologies and what they mean. When filing the estate tax return, be sure you have a skilled estate attorney at your disposal. Which Beneficiaries Are Subject To Inheritance Tax? It all depends on your relationship with the deceased. Categories of beneficiaries, their applicable exemptions and tax rates are: Surviving spouses – Any transfers to a surviving spouse are taxed at a zero (0%) percent rate. Charitable beneficiaries – Transfers to exempt charitable organizations, exempt institutions, and government entities are entirely exempt from the Pennsylvania inheritance tax. Class A – Property passing to grandparents, parents, descendants (including natural descendants, adopted descendants and step-descendants), and an un-remarried spouse of a child is taxed at four and one-half (4.5%) percent. This class may be entitled to a $3,500 family exemption from the Pennsylvania inheritance tax. Class A1 – Property passing to brothers, half-brothers, sisters, half-sisters, and persons having at least one parent in common with the decedent, either by blood or by adoption, is taxed at twelve (12%) percent. Class A1 beneficiaries do not receive any exemption from the Pennsylvania inheritance tax. Class B – Property passing to all other beneficiaries is taxed at fifteen (15%) percent. Class B beneficiaries do not receive any exemption from the Pennsylvania inheritance tax. Minor children – For deaths occurring on or after July 1, 2000, transfers from the estate of a child age 21 or less to the child’s natural parent, stepparent, or adoptive parent are taxed at a zero (0%) percent rate. Exemptions for Farms and Family Owned Businesses The Pennsylvania legislature also has exemptions for certain kinds of properties. Farms are exempt from the inheritance tax, as long as the land is inherited by the immediate family and the land continues to be used for agriculture for the future 7 years. Recently, the Pennsylvania legislature has also exempted family-owned businesses if certain requirements are met. As laws keep changing and evolving, it is important to consult with an experienced estate attorney. Many people wonder whether you can take on a loss can be taken on an inherited trust, they should visit sjclawlib.org for more information. Filing the Tax Return The Pennsylvania inheritance tax return is a complex document requiring in-depth information and schedules where the transferor’s property and liabilities are listed. In addition, different tax rates apply to different beneficiaries. Therefore, it is imperative that you have an experienced estate attorney ready to guide and support you throughout the procedure. For more information, contact us at 215.790.0100 or email us at firstname.lastname@example.org. You can also visit our website www.astorweiss.com.
Letter of Last Instructions
It is recommended that you prepare this and give copies to your Executor and next of kin in a sealed envelope labeled “To be opened in the event of my death or incompetency.” It is not necessary to sign it, or to have it witnessed or notarized, but you certainly may sign it. You may also give those people an idea of the contents. 1. Will, Trust, Power of Attorney, Advance Health Care Declaration — location of documents, name and telephone number of attorney recommended to handle estate; 2. Funeral and burial — location of plot and certificate(s), preferences; 3. Insurance policies (life, health, disability, accident, long term care, auto) — location, names and telephone numbers of agents; 4. Automobile information — location of vehicles, titles, keys; 5. Safe deposit box — location of box and keys, summary of contents; 6. Personal property off premises if any — office, storage, in custody of third party; 7. Division of personal property among beneficiaries; 8. Employee benefits — summary, name and telephone number of representative; 9. Account information — bank accounts, IRA accounts and other retirement plans, security and brokerage accounts, loans, credit cards (destroy all that are not joint), and other debts; 10. Tax returns — location, name and telephone number of accountant; 11. Your social security number; 12. Birth, death, naturalization and marriage certificates, divorce decrees, adoption, support and custody orders; 13. Deeds, leases, mortgages, home improvement records 14. Business and partnership agreements; 15. Receipts, guarantees and warranties for major purchases; 16. Usernames, passwords and answers to security questions for each digital account on site.
School Tuition and Activity Expenses
The Pennsylvania child support guidelines are used by the courts to determine the child support obligations of parents who are divorced or separated from one another. In addition to the base amount of support, extraordinary expenses of children can also become part of a support obligation. Such extraordinary expenses include private or parochial school tuition, day care costs, music lessons, sports fees, tutoring and other activity fees related to activities in which the the children may be involved. The court typically allocates the cost of these expenses in the same percentages as each party’s proportional share of the parties’ combined monthly net income. For example, if father’s net monthly income is $6,000 a month and mother’s net monthly income is $2,000 per month, father is responsible for 75% of the cost of these expenses and mother is responsible for 25% of the cost of these expenses. The extra expenses of the children must be reasonable and in line with the standard of living of the parties. Further, they must be activities that the children were already engaged in before their parents separated, activities mutually agreed upon by both parties or activities that a Judge finds are reasonable for those children in that particular case. For example, a parent cannot send a child to private school and then demand that the other parent pay for the cost of the private school if the other parent does not consent to sending the child to private school in the first place. However, if a Court finds that private school is a reasonable expense, it can overrule the objection of one parent. Similarly, a parent cannot enroll a child in multiple expensive activities without the other parent’s knowledge or consent and then demand that the other parent pay his or her proportionate share of the costs of these activities unless a Court finds the expenses and the activities to be reasonable. At times these expenses are included in the monthly support order and at other times these expenses are ordered to be paid directly to the other parent or the provider of the service outside of the court order. Still other times, one parent is directed to pay the expense and then seek reimbursement from the other parent for the expense. Astor Weiss Kaplan & Mandel, LLP has experienced family lawyers who regularly represents individuals with these issues. Please contact one of our family law lawyers for assistance with your child support issues and related tuition and extracurricular activity expenses.
Uninsured and Underinsured Coverage
Motor vehicle insurance isn’t as simple as some people seem to think. A search for ‘Car insurance quote Texas‘ will take you to some local insurance quotes and you might find the best deal for the best price. However, it’s never that easy – when taking this insurance out, do you really know what you’re selecting? When one obtains a policy of motor vehicle insurance, they are required to choose between carrying “Uninsured” (UM) and “Underinsured” (UIM) motor vehicle benefits or choosing against carrying such coverage. It’s important to know what both of these are. Although you may opt-out of carrying UM and UIM coverage, the benefits greatly outweighs the risks. UM Coverage: UM coverage protects you from injuries you suffer as a result of a motor vehicle crash caused by another driver who does not carry motor vehicle insurance. Although it is required in all states to carry motor vehicle insurance coverage, the reality is that many drivers operate vehicles each day without any insurance coverage. One of the reasons for this could be because they are put off by the amount of money that needs to be paid for their insurance, especially if they have been given a traffic ticket in the past. But by completing something similar to this defensive driving course ny and having it on your record could see your insurance premiums reduced. It’s just about finding a company that will allow this discount. Regardless of this, it is really important that you have the necessary insurance coverage. If you are harmed in a motor vehicle crash caused by an uninsured driver, you must have UM coverage on your own car insurance policy in order to make a claim for compensation. By carrying UM coverage, you protect yourself from the possibility of being hit by a driver who unknown to you has violated the law by failing to maintain car insurance coverage. Underinsured Coverage: UIM coverage protects you from injuries you suffer as a result of a motor vehicle crash which was caused by another driver who does not maintain enough car insurance coverage to adequately compensate you for those injuries. For example, if you are involved in a serious car crash which results in significant injuries and extremely large medical bills and the person who caused you these injuries only maintains a minimal policy of insurance, you may not be able to be fully compensated for your injuries. UIM coverage allows you to make a claim against your own car insurance company for the additional compensation you are entitled to over and above what you are able to collect from the person who caused the crash. By making a UM or UIM claim, you are actually making a claim against your own car insurance company. Although the idea of making a claim against your own insurance company may seem daunting, it is important to recognize that your car insurance rates cannot go up simply because you made this type of claim, so long as the incident which caused you injuries was not your fault. Carrying UM and UIM coverage is essentially the only way to protect yourself against the unknown – something you won’t come to learn until it is too late. Both types of coverage extend to your family members who reside with you along with any other person in your vehicle at the time of the crash. The decision to carry UM and UIM coverage should be a simple one. The cost for choosing these elective forms of coverage is only a minimum increase to your car insurance rates and as demonstrated above, the benefits of having this type of coverage can be life-altering in the event you are involved in a motor vehicle crash. By: Jordan Schlossberg
What to do if involved in Car Crash
Important Steps to Take if Involved in a Car Crash If you are involved in a car crash, there are several important steps that you should take to best protect yourself, both medically and legally: Step 1: Contact the police – By contacting the police, you will ensure that a record of the incident is made and that the proper information is exchanged between you and the other driver(s). The police may also be of assistance in making sure you receive immediate emergency medical care. If the police will not come to the scene, make sure to document the other driver’s license plate, make/model of their vehicle, and their car insurance information. The more information you obtain at the scene, the less risk you run in failing to obtain a crucial piece of information which may be difficult to obtain at a later date. Step 2: After a crash, you will need to take your car to an auto repair shop to get it fixed. That is presuming that the damage is repairable; If the crash was a big one and this isn’t the case, then you will need to contact somewhere like cashcarbuyer.com to scrap it, as it will no longer be fit to drive. But crucially, before you do so, make sure you take photographs – photograph all of the vehicles involved which were damaged as a result of the crash. Additionally, if you have cuts or bruises as a result of the crash, it is important to take photographs so that your condition is documented, as well as making sure you get photographs of as much visual information as you can, if you have a dashcam from the likes of blackboxmycar for example be sure to save and retain the footage to use as evidence at a later date. Step 3: Seek medical attention – Often after a motor vehicle crash, victims feel overwhelmed with emotion and are generally shaken up. Pain due to injuries suffered from the crash can set in immediately or may take several days to begin negatively affecting you. It is always better to err on the side of caution and to visit the nearest emergency room or to see your family doctor as soon as possible for an evaluation of any part of your body which was affected from the crash. It is additionally important that you express to the doctor who examines you that your symptoms began or worsened as a result of the crash. Step 4: Contact an attorney – The quicker you contact an attorney, the better off you will be. By contacting an attorney, you can ensure that your rights are protected, as there are many circumstances for which your failure to act timely may cause you to be without any recourse. Additionally, contacting an attorney will ensure that you will not have to deal with any of the insurance companies involved and that all necessary steps are taken to make sure that your vehicle is fixed or replaced and that you receive necessary medical care. Need a Los Angeles car accident lawyer? You could look into reaching out to the Wilshire Law Firm for legal help with your situation. By: Jordan Schlossberg
Family Law And Bankruptcy
Family Law and Bankruptcy When a party to a family law case files bankruptcy, in general there is an automatic stay under federal law to all actions against the debtor or the debtor’s property. However, there are numerous family law exemptions to that stay provision. All actions to establish and modify child support and alimony and paternity orders may proceed. This includes medical obligations and all obligations “in the nature of” support, such as a duty to pay liabilities and debts. All actions to enforce payment may proceed, except as to assets of a debtor’s estate being administered by a bankruptcy trustee. These would include wage attachment, reporting to credit bureaus, tax intercept and license suspension. Custody actions may also proceed without the need to apply to the bankruptcy court for relief from the automatic stay, as can protection from abuse actions, except for monetary relief, such as lost wages, property damage, counsel fees and medical expenses, which may not be sought. Divorce actions may proceed, but not equitable distribution, as to which relief from the automatic stay by motion is needed from the bankruptcy judge. All family law obligations – support, alimony and property division, whether by agreement or court order – are non-dischargeable in bankruptcy, meaning that after a discharge is granted the obligations remain enforceable. Further, in a Chapter 13 wage-earner bankruptcy, support obligations are the number one priority and must be current before a discharge order can be entered. The confluence of bankruptcy and family law can be murky sometimes. See a lawyer familiar with both fields if a question arises. We can help! By: David I. Grunfeld, Esquire
Prenuptial agreements and marital home
Family Law – Prenuptial Agreements One of the issues that people considering a prenuptial agreement should be discussing is what provisions, if any, should be made in that agreement related to the parties’ future marital residence. After their marriage, if they are going to live in a house that was owned by one of them before the wedding, will that house be transferred into joint names? If not, when the owner dies, will that house be left to the survivor? If not, will the surviving spouse be allowed to live in the house for some period of time before the deceased spouse’s estate can sell the house? If the surviving spouse does remain in the house, who will be paying the expenses while that spouse lives in the house? If the parties are going to live in a house titled in joint names after the marriage, and if the house was either purchased with the separate funds of one of them or previously owned by only one of them, if the marriage is terminated by a divorce, how will the equity in that house be divided? Will the spouse who owned the house before the marriage be allowed to remain in the residence while the other spouse has to vacate? If the parties had children after the marriage, will this have any bearing on who remains in the house and who leaves? Will the parties want the house to be sold and will either party be given an option to buy out the other party if they decide to separate and get divorced? Will each party get back what they contributed to the down payment or acquisition of that jointly owned home before any equity above and beyond those contributions will be divided? What if someone else provided the down payment to purchase the home – will they be repaid before the parties divide the equity in the house? These are just some of the issues that can be dealt with in a prenuptial agreement in order to avoid arguments and possibly litigation after one spouse dies or when the parties’ marriage terminates as a result of a separation or divorce. One of the major reasons for having a prenuptial agreement is to have issues such as these discussed and resolved before the marriage so that there is less chance of a disagreement arising in the future. By: David Gutin
Worker’s Compensation – Is that it?
When a person in Pennsylvania is injured at work, regardless of whether the employer was at fault or not, the person is entitled to worker’s compensation insurance benefits which will compensate him or her for any lost wages. The employer can use claims management to get help with appropriate medical treatments and assist with the return to work transition and, in exchange for being automatically entitled to such a recovery, the person is prohibited from suing their employer from damages as a result of pain and suffering her or she has experienced as a result of her injury. Most people happily accept this money without ever realizing that they may have recourse to receive damages from pain and suffering from another party. At Astor Weiss Kaplan & Mandel, LLP, we have many cases where our clients were seriously injured at work. All of these individuals were entitled and did in fact receive worker’s compensation benefits. However, in many of these cases, there were also other parties at fault. Examples of other parties that may be at fault while at the work place are manufacturers and designers of machines, transportation companies, and property owners. If you were seriously injured in a work accident you should still consult with a lawyer even if you have received worker’s compensation benefits. Specifically, at Astor Weiss Kaplan & Mandel, LLP, we can investigate and evaluate your claim to determine whether or not you have a claim. One brief phone call to us could be the beginning of a substantial recovery for you. If you’ve been injured on the job in Portland, Oregon, and are now wondering How to get workers compensation claim approved, it may be a good idea to get legal assistance with this process as it can often be a complex one. Perhaps you could consider the services of Jodie Ann Phillips Polich, P.C. By: David L. Woloshin
Why is my friend getting more than me?
This is one of the most common questions we are asked. If you are in a car accident and a family member is in a different one- why isn’t recovery the same? There are many factors that go into determining a settlement value of a case. First- the specifics of the accident. No two crashes are identical. In one, the actions of the other may have clearly caused the crash but in the other case it may not be as clear. Second, the insurance may be different. Some insurance companies are easier to work with than others. Third, given this firm’s long history with litigation, we may have had the opportunity to work with the insurance adjusters before. If that is the case, that adjuster may remember how fair we were and be more likely to work fairly with us this time. Fourth, no two injuries are ever the same. Two people may have both hurt their necks- but the injuries are still different. One person may have had a prior condition that was made worse, another may have more time off of work because their pain tolerance is lower, and yet another person may not fully recover from a similar neck injury. The type and severity of the injury factors into the settlement. In every case, the experience of the lawyer in handling the matter plays a large part in the resolution of the case. That same experience leads the clients to understand what is recoverable and what isn’t- with easy to follow reasons. Each person is unique and so is their case- our approach is to work with each person to maximize the recovery for that person. By: Dina S. Ronsayro
Pennsylvania Benefit Corporations
Recent years have seen a growing interest in the adoption of environmentally sustainable and socially responsible practices by businesses. On October 24, 2012 Governor Corbett signed into law Chapter 33 of Title 15 (the Pennsylvania Associations Code) which authorizes the organization of a new form of business corporation that offers entrepreneurs and investors the option to build, and invest in, businesses that operate in a socially and environmentally responsible manner. Enforcement of those responsibilities will come not from governmental oversight, but rather from provisions on transparency and accountability included in Chapter 33. A new corporation can be formed as a benefit corporation and an existing business corporation may elect to become a benefit corporation by a two-thirds vote of its shareholders. If this is a subject of interest to you I would be happy to provide you with more information about it. By: Alan H. Molod
Real Estate finance and Estate Planning
Hot Tips: Divorce and Estate Planning: Careful, Competent Lawyers Must Think of Everything! If you are separated and not yet divorced, what is it important for you to think about or know? Review your current Will and make changes to protect yourself. Do not wait until your divorce is final. Think about Trusts for your children who will probably be the beneficiaries. Who should be their Trustee? What ages can your children handle money? Think about your IRA beneficiaries, your 401K beneficiaries and other retirement plans. Consult an experienced lawyer before you change anything because sometimes you are not permitted to remove your spouse as beneficiary until the final divorce. Also be aware of insurance policies and beneficiaries. Do not make any changes before consulting an attorney. In short, be aware that separation and divorce are intertwined with your estate planning. By: Julie A. Auerbach
Social Networking After an Accident
Social Networking After an Accident After you are in an accident and are safe, you often want to tell the whole world how somebody did something wrong and hurt you. That feeling is extremely natural. However, it can hurt any potential case you may have. Every solicitor will tell you the same, whether its for a personal injury claim or for a bicycle accident claim, companies like https://smithjonessolicitors.co.uk/road-traffic-accidents/bicycle-accident-claims/ will find it so much harder to get a case put through after you put across your feelings on social media. With the increase of social networks and the Internet, people are using it more and more to express what is happening in their daily lives. However, this same information that is being made available to your friends and family is also then available to the other side, and this is why an Atlanta Personal Injury Lawyer, for example, would likely tell you to refrain from such commentary if the case is being brought to court. A simple statement that “oh it wasn’t that bad” or “I’m not really hurt” can impact the value of your case. If you claim you hurt your leg and then post pictures of you rock climbing a few weeks later- it can impact the value of your case. This is why if you must update people via social media, it is best to discuss the matter first with your personal injury attorney denver to see what would be the best statement to give. That way you can be sure there won’t be an issue. The best rule of thumb is- when in doubt don’t post! In need of a Truck Accident Lawyer in Morristown, TN? The legal services provided by The Terry Law Firm may be of interest you if you’re seeking to proceed with a potential claim. If you’re in Dallas, Texas, and also require the services of a truck accident lawyer, then Tate Law Offices may be able to help you with your situation. By: David L. Woloshin
When Does Child Support End?
When Does Child Support End? Generally speaking, the obligation of one parent (usually the one with partial physical custody) to the other parent (usually the one with primary physical custody) for payment of child support ends when the child reaches age 18 or graduates from high school, whichever comes last. As with many matters, there are exceptions. There remains a duty to continue paying any arrears which have accumulated prior to the effective date of termination. Customarily courts order the same basic amount to continue to be paid until the arrears are zero and the case can be closed. Child support may be required to continue, in the discretion of the court, if a child is handicapped or otherwise unable to sustain himself or has special needs. This can last indefinitely. If that child has reached majority, and is institutionalized or gets other governmental benefits, both parents may be liable for child support or to re-pay those benefits to the governmental entity or institution. If a child is still a minor but is emancipated, child support may be able to be terminated. Emancipation may mean married, living independently, out of school and employed and earning a sufficient living. There is no duty in Pennsylvania for a parent to pay college expenses or support during college, meaning any post-high school educational costs. However, if the parties were married and included a college expenses or support obligation in a post-nuptial or property settlement agreement, that duty is enforceable by a court. Similarly, absent a written agreement to do so, a parent cannot be forced to maintain health insurance for a child after his or her child support obligation terminates. If you have a child support element in your family law matter, all of the foregoing should be explored. By: David I. Grunfeld, Esquire
Why Draft a Will
Wills, Trusts, Estates and Taxes – Why draft a will when the Commonwealth of Pennsylvania already provides one? What happens if you die without a will? In Pennsylvania, your assets* that are in your name will be distributed based on the intestate succession laws of Pennsylvania. Specifically, your property will be distributed in the following manner: If you are only survived by a spouse, your entire estate would be distributed to your surviving spouse. If you are survived by a spouse and children, all of whom were also the surviving spouse’s children, your spouse would receive the first $30,000 of your estate plus one-half of the balance of the estate. However, if you were survived by a spouse and children, at least one of whom was not also the surviving spouse’s child, the surviving spouse will only receive one-half of the estate and the children would share the other half. There are special rules if a child predeceases you and is survived by children (your grandchildren). If you have no surviving spouse, your estate would be distributed in the following order: Children Parents Brother, Sister, or their Children Grandparents Uncles, Aunts, and their Children and Grandchildren Commonwealth of Pennsylvania As you can see, these rules are not tailored to an individual’s specific situation and may not accomplish your goals. For example, you may want to give some of your estate to a charity or to a good family friend. More importantly, you will want to select the person or persons who will care for your minor children if you and your spouse die. These are just two important reasons why it makes sense to draft a will. The estate planning attorneys at Astor Weiss Kaplan & Mandel have over 40 years of experience advising clients on their estate plans. For additional information on why a will is beneficial for your estate plan, or other estate planning inquires, feel free to contact us. *Note that not all property passes by will (e.g., assets held in joint tenancy or tenancy by the entirety, policies of life insurance, Individual Retirement Accounts (“IRAs”) or other contractual agreements). By: Daniel Levine
New Associations Code Amendments, Part 1
New Associations Code Amendments, Part 1 Senate Bill 304 was signed into law on July 9, 2013 by Governor Corbett as the GAA Amendments Act of 2013 (the “Act”) to be effective September 7, 2013. The Act was drafted by the Title 15/Business Associations Committee of the Section on Business Law of the Pennsylvania Bar Association, on which I have served for many years. The Act amends the Associations Code which contains the laws relating to legal entities, i.e. corporations, partnerships, LLCs, LLPs, business trusts, etc. An aspect of the Act that might be of general interest is Chapter 91 which creates the Pennsylvania Uniform Unincorporated Nonprofit Association Law. Is this a subject of interest to you? By: Alan H. Molod
Fertility Contracts Legal issues can arise with assisted reproductive technology. What happens if a married couple freezes embryos and later separates? Who decides what happens to the frozen embroyos? Does a sperm or egg donor have a child support obligation to the child born from this arrangement? What happens if a gestational carrier decides that she wants to keep the baby she is carrying for another person? These are just some of the legal issues which can arise when assisted reproductive technology is used by prospective parents to have a child. There are ways to protect individuals from legal issues resulting from assisted reproductive technologies. Parties using such technologies should enter into contracts setting forth the rights and responsibilities of the parties involved. For example, when a married couple decides to freeze embroyos, they should first enter into an agreement with one another setting forth what happens to the embroyos in the event of the death of either party or the parties’ divorce. Surrogacy contracts should always be entered into when a surrogate is used to carry a child for another person or couple. Similarly, egg and sperm donors should enter into contracts setting forth that they have no support obligation to the child born from their sperm or egg. For more specific information, please feel free to contact one of our family law lawyers. By: Julie Auerbach
Fair Housing Law Traps for the Unwary
Real Estate – Fair Housing Law Traps for the Unwary. All landlords, condominium associations, homeowners’ associations and residential co-ops are subject to the Fair Housing Laws. What does this mean? As a member of the Board of an association, a manager or a landlord, what is my exposure to liability? Can a rule prohibit children in the pool during certain hours? Can a rule prohibit children playing in the hallways? Can occupancy be limited to a certain number of people? What criteria can be used to determine whether or not to accept a new resident? What special treatment must be afforded to someone who is handicapped? These are extremely complex issues which should be dealt with based on the advice of experienced counsel. Do you deal with these issues? By: Ronald Glazer
Condominium Association Pitfalls
Real Estate – Condominium or Homeowners’ Association Operating Pitfalls Must the Association hold formal meetings, adopt formal resolutions and keep formal minutes? Are our rules and regulations enforceable? Do changes in our rules and procedures require formal amendment of our governing documents? Can portions of our governing documents be unenforceable by reason of subsequent changes to the statutory law? These and a multitude of other questions arise daily in the operation of condominium and homeowners’ associations and require the input of an experienced attorney. Are you at risk? By: Ronald Glazer
Term Sheet or Letter of Intent
Business Law – Term Sheet or Letter of Intent. The Term Sheet or Letter of Intent states specifically that it is not a binding agreement and is subject to the parties turning it into a formal binding agreement. This does not mean that it should not be reviewed by an experienced attorney. There are many cases which held that the parties were bound, even though the document stated that it was a non-binding agreement. You may not be able to just back out of such an agreement. Are you obligated to negotiate and, if so, negotiate in good faith? If you do not negotiate in good faith, are you subject to possible liability? These are among many reasons why a Term Sheet or Letter of Intent should be reviewed by an experienced attorney. By: Ronald Glazer
There is almost no such thing as a “standard” contract. Each contract is unique and merits the attention of an experienced lawyer to raise the proper questions and deal with the proper issues. Although your review will not be from a legal point of view, but rather from a layman’s point of view, you can at least read and react to what is set forth in the contract. The real challenge, which requires an experienced lawyer, is to know what is absent from the contract but should be there. Are you skilled at reading between the lines or can we help? By: Ronald Glazer
New Lease for my Business
Real Estate – New lease for my business Why can’t I just sign the landlord’s form lease? Who should make various repairs to the premises? What can happen if the landlord is not satisfied with my repairs? Do I have the right to alter the premises and install fixtures and equipment that I need for the business? Can I be thrown out if the landlord defaults on its mortgage and there is a foreclosure? Is there a way to protect against this? Finding new business premises can be tough but it’s worth it when you find a place that meets all your needs. For example, if you wanted somewhere with 24/7 secure access, fully furnished, with tech support and a flexible lease, then you could look at the Grand Forks offices for lease as they would meet all of your needs. There is no point in settling for less. These and other questions known to an experienced real estate lawyer and should be discussed before signing a lease. If you’d like to have a look further into the different types of leasing arrangements and what might be best suited for you and your business you can start your research right here and familiarize yourself with the three main types of leasing deals. Do you need our assistance? By: Ronald Glazer
Is There Alimony in Pennsylvania?
Is There Alimony in Pennsylvania? There are three types of support available to the dependent spouse: spousal support, alimony pendente lite and alimony. Spousal support and alimony pendente lite are forms of support which can be awarded to a dependent spouse after the parties’ separate but prior to the entry of a decree in divorce. Alimony is awarded to a dependent spouse only after the decree in divorce is entered. A spouse can only receive one type of support at a time. Spousal support and alimony pendente lite are calculated the same way. The differences between the two are 1) fault is a defense to the award of spousal support while fault is not a defense to the award of alimony pendente lite and 2) alimony pendente lite can only be awarded if a divorce complaint is filed with the court, while no divorce complaint needs to be filed to obtain an award of spousal support. Fault is generally defined as a spouse who has an extra-marital affair prior to the parties’ separation. The formula for calculating alimony pendente lite and spousal support is as follows: (Obligor’s income) less (obligee’s income) less (any child support obligation of obligor) multiplied by 30% of the difference (if there are minor children) or 40% (if there are no minor children.) Alimony is awarded based upon the consideration of 17 factors, which factors generally focus on the length of the marriage, the relative earnings and assets of each party and whether or not the dependent spouse has custody of the parties’ children. There is no specific formula for the calculation of alimony. Instead, the amount of alimony is based upon the reasonable needs and expenses of the dependent spouse. By: Julie Auerbach
College Support Under the present law in Pennsylvania, neither parent has any legal obligation to pay for the college education of their children. This means that no court can order someone to pay for tuition, room, board, books or fees. Once a child has graduated from high school or turned 18, whichever comes later, the legal obligation to pay for any of that child’s expenses terminates. The only exception to this rule is when a child is disabled and unable to work and earn a living as a result of that disability. Even if the child is living at home while attending college, there will be no child support paid for that child. For many parents, when they learn that this is the law in Pennsylvania they are both surprised and frustrated. While this may be the law, the parties can agree to contribute to college expenses by way of a written agreement. If they enter into such an agreement, it will be enforced by our courts. In some cases, both parents would rather agree to share in this expense in order to be sure that the other parent will be obligated to do this as well. Where one parent has more income than another, they can agree to share this obligation in a disproportionate fashion based on their respective incomes. In some situations, even where a parent is willing to commit by contract to pay for college, they do not want to give their children or their spouses a blank check when it comes to this obligation. Agreements often provide that the obligation to pay for college will be limited to the cost charged by Pennsylvania State University for those expenses. Anything above and beyond that, would be purely voluntary on the part of the parent. We often recommend that parents not agree to pay for college in their marital settlement agreements where they have young children, since no one has a crystal ball as to what they will be able to afford down the road. In addition, where children have become estranged from their parents, possibly due to no fault of the parent they are estranged from, imposing an obligation on that parent to pay for the college education of the child that wants nothing to do with that parent may be something that a parent regrets down the road. Interestingly, each state is different with regard to college support. Parties living in the state of New Jersey can be forced to pay for college and, in some cases, even pay for graduate school for their children. While this is the case in a minority of states, any party contemplating divorce should educate themselves as to the state of the law in the jurisdiction where the divorce complaint may be filed insofar as this key issue is concerned.
Top Five Tips for Choosing a Lawyer
Top Five Tips for Choosing a Lawyer 1. Research. In today’s world, there is no excuse for choosing a lawyer without doing the basic research to find out more about the attorney and his or her firm. There are multitudes of sources of information on lawyers, including a lawyer’s own website. Find out what type of cases he or she has been involved with in the past and their rate of success. If you’re unsure whether you’ve chosen the right lawyer for your case, you can always ask for a free consultation to help make your mind up. You need to make sure you’re using a reputable, successful lawyer who can help you win your case. For instance, if you or your loved one met with an accident that resulted in a brain injury or severe head injuries and you wish to explore compensation and claim options, you might want to hire a lawyer with experience in personal injury cases, preferably someone who has dealt with similar cases in the past. Likewise, if you were injured in the state of Oklahoma, you should ideally find a few Oklahoma Brain Injury Lawyers to research before finalizing on someone particular. 2.Get a referral. Generally speaking, whether a lawyer has been successful in a given case or matter can be judged by the satisfaction of the client. For example, if you hear from a friend that personal injury attorney Ray Areshenko of REA Law is perfect for their needs, then that recommendation should not be taken lightly. If the client is willing to refer that lawyer to someone else, the chances are great that the lawyer did a good job. If someone has recommended a lawyer, it must mean they performed very well in their case. It’s vital that you contact an experienced law firm if you’ve had an accident or need legal support. Without intruding on the particulars of the case, ask that person why they were so satisfied with the services of the lawyer and if they’d recommend them. 3.Shop. The law provides little that is black and white and very often, two extremely competent lawyers can have two very different outlooks on a given case. If the first lawyer you consult with doesn’t seem enthusiastic about a case, do not be afraid to seek out a second opinion. The second opinion may confirm that you do not have a great case, but often, another lawyer will see value where another did not. 4.Disclose. When you first meet a lawyer about a given case, make sure that you make full disclosure. There are many times that a client will come to a lawyer with a given set of facts, only for that lawyer to find out later that the facts were actually very different. A lawyer will initially evaluate a case based on what the potential client conveys to him or her. Holding back unfavorable facts from the lawyer will only leave everyone disappointed in the end. 5.Communication. Very often, I hear clients talk about other lawyers they have had in the past and the trouble they have communicating with him or her. Having an open dialogue with your lawyer is essential to your comfort level. If it takes a long period of time for a lawyer to return your initial calls, you may want to think twice about hiring that lawyer. An in-person consultation with the lawyer is always advisable as well.
Help Me, Help You
Help Me, Help You While I am certainly not Jerry Maguire, I often express the same sentiment to many of my clients. A common misperception that many clients have of the legal system is that once the attorney has the case, the client can completely disappear into the background and have nothing further to do with the case. However, this is a sure way to make things difficult for your attorney and can provide significant obstacles to your case. The truth is, an attentive and prepared client can be one of the most valuable assets to a case. Now, your question may be, why am I paying my attorney so much money if I am so important? Attorneys are experts of the law and an experienced, knowledgeable and a diligent attorney is essential to any legal battle. However, an attorney’s capability expands exponentially when he or she has a client that can provide them with as much of the details of a case as possible. The law often requires the application of facts to the law. An experienced attorney must be able to ask the correct questions, but the client must provide the answers. Not only is arming your attorney with the necessary facts of the case helpful to you, but it will also save your attorney time, allowing him or her to focus on the most important issues and tasks of the case. This will make your case move along more efficiently and may even save you money by having your attorney spend less time sifting through the weeds of the case. By assisting your attorney, you are essentially assisting yourself. By: Jordan Schlossberg
Conflict of Faith
Conflict of Faith Originally published in The Philadelphia Lawyer, Spring 2011, p. 13 Can a father during his partial physical custody time take the child to his own religious services if different from that of the mother? What if they previously agreed to raise the child in mother’s faith? What if mother’s faith and father’s are opposed theologically? What if they have shared legal custody and therefore have to agree on major parenting decisions? In Pennsylvania, legal custody means the right to make major parenting decisions. Those generally are education; major after-school and vacation activities; and non-emergency and non-routine medical needs. Pennsylvania favors shared legal custody, which means the parties have to agree, or a court will intervene and decide. In Pennsylvania, the spiritual well-being of the child is one factor, but not a determinative one, in custody disputes. It is appropriate for a court to consider the religious practices of each parent. However, on a constitutional basis, it is the general rule here that each party may expose the child to his or her own religious practices during that party’s physical custody time. This has been upheld even with testimony from a religious leader or mental health professional that attending churches of two different faiths could lead to confusion. In Pennsylvania, courts assume a neutral stance toward religion in custody cases. Hence, even if the parties had previously been raising the child in one religion before separation, they may each take the child to a different church after separation. There are times when a problem may arise such as the mandatory need for a child to attend regularly to prepare for an upcoming religious event. In that case, a court may order one parent to handle, during his time, transportation to and/or from the church of the other parent, with equivalent make-up time for the hours missed. Not even a prior agreement to raise the child in one faith, made in a pre-nuptial agreement or before separation, while living as an intact family, is binding on a court after separation. Nor is the position of one faith that the child’s attendance at another church presents theological difficulties, with a firm rule against it, binding upon a court. Courts do not make a value judgment regarding a parent’s religion. The idea is one of freedom of religion, exposing the child to multiple choices so that the child is free to make his or her own decision as to what to practice as the child matures. Rather, the court’s role is to assure that the child’s best interests are not detrimentally affected by the religious belief or practices. For instance, a court might prohibit participation in a cult, or street solicitation, if the court believes the child’s present or future mental or physical health was in danger. Therefore, counsel who wish to oppose the other parent’s religious practices by the child have a high burden of proof, usually through the testimony of a mental health professional, to show such a danger. Any such restriction imposed by a court must be the least intrusive means adequate to prevent the specified harm. In short, it is unconstitutional in Pennsylvania to decide a custody dispute, in whole or in part, on the basis of each parent’s religious devoutness; prefer stability in religious education or observance to a perceived instability by exposure to two faiths; and protect a child from attempts by either parent to instill his or her religious beliefs before emancipation, absent a showing of substantial physical or emotional harm. Where there is compromise, tolerance and explanation, the child’s adjustment is usually best. By: David I. Grunfeld, Esquire
Personal Injury Case for My Child
Settling a personal injury case for my child In Pennsylvania, a child’s parents can file a lawsuit on behalf of their child. If the parents and lawyer believe a settlement is appropriate, then they must seek Court approval. The Court will review the facts of the case and the proposed settlement and costs involved to make sure that the minor is being protected. Only after the Court approves the settlement, may the defendant pay the agreed upon amount. By: Dina S. Ronsayro
Wealth Transfer A Family Limited Liability Company (FLLC) is frequently used to pass wealth from one generation to another. Before the advent of limited liability companies in Pennsylvania in 1994, family limited partnerships were the vehicle of choice for this type of family planning and are still used today. With a FLLC the owner of the FLLC (often the company’s founder) is generally the manager with full management authority, and his/her children are members of the FLLC without any management authority and without the ability to sell any part of their membership interest except, perhaps, to immediate family members. The tax benefits of such a program can be substantial. It is rarely too early to start succession planning. Should you be making such plans? By: Alan Molod
Types of Compensation Available if Injured
There are several categories of “damages” which one may be entitled to when they are injured as a result of someone else’s actions or inactions. Although, if the “damages” were made on the public due to your business, then this should be covered by Public Liability. You could consider PL insurance quotes from constructaquote.com. It is important to get Public Liability in case someone sues your business for one of the following categories: Property Damage: You are entitled to recover the costs of any damages which occur to your personal property as a result of someone else’s negligence. This could include anything from property damage to your car to damage which occurs to a piece of your jewelry. Medical Bills: You are entitled to recover for any medical expenses which you have incurred for treatment of injuries caused by someone else’s wrongdoing. This includes medical bills for treatment that occurred from the date of the incident through the point in time in which your case resolves as well as for future medical care which may be necessitated after your case resolves but which was caused by the same incident. When calculating the amount of damages which one is entitled to recover for past medical treatment, it is important to note that one may only recover an amount equal to the amount paid by that individual’s health insurance, or in the event that the injured person does not have health insurance, the total amount in which the medical providers have billed for the treatment which they provided. The amount of damage that one is entitled to recover for future medical expenses is based upon what the injured party’s physicians believe will be required to cover future medical care. This amount could relate to the amount for future medical procedures such as surgery or additional maintenance treatment to ensure the injured individual’s condition does not worsen. If there are problems with getting compensated for medical bills, then people will go onto sites such as GoFundMe to help with expenses just in case there has been an issue. Lost Wages: You are entitled to recover for any money you failed to receive due to your inability to work because of injuries which someone else caused you to suffer. This includes both past and future time missed from work. When calculating past lost wages, you may recover for any payment which you would have otherwise received but for your inability to work due to your injuries, up to the time in which your case resolves. You may also be entitled to recover for future lost wages if your injuries will prevent you from returning to work for an extended period of time, including the prospect of never being able to return to the same job which you had prior to the incident which caused your injuries. If you were required to change your job or profession due to your injuries, you may be entitled to the difference in wages of what you were earning prior to the incident as compared to what you are earning after the incident. Pain and suffering: You are entitled to recover for the pain and suffering which you were forced to endure due to your injuries and medical treatment caused by no fault of yours. Pain and suffering include any past and future physical pain or discomfort, stress, inconvenience, and mental anguish. It also includes embarrassment and humiliation caused by your injuries such as possible changes in your appearance as well as scarring or disfigurement from an injury that wasn’t your fault. Lastly, and often most importantly, you are entitled to compensation for loss of life’s pleasures and your inability to enjoy the same activities which you participated in prior to the incident. Loss of consortium: Lastly, the category of damages known as loss of consortium relates to the ways in which an injured party’s spouse is negatively affected by their love one’s injuries. When an individual is injured by someone else, often times the injured individual’s spouse is required to alter their life in order to provide the necessary care for their significant other’s speedy recovery. As a result, this can cause an injured party’s spouse to be deprived of support, comfort, and companionship for which their spouse previously provided prior to the incident which caused their injuries and the injured party’s spouse is entitled to compensation for this loss. If you were injured at work in Oklahoma, see here to learn about workers compensation rates. By: Jordan Schlossberg
Homeowner responsibility for injuries
Duty Owed by Possessor of Land to the Public In Pennsylvania, the purpose for which a person enters onto another’s property will dictate the duty which the possessor of the land owes to that person and that person’s legal rights for any injuries suffered while they are on that property. Trespasser: If you enter another’s property without permission, you are considered a trespasser. If you are a trespasser, the possessor of the property owes you only a minimum duty to ensure that the property is safe. If you are the owner of a property, you can deter trespassing by installing a surveillance system onto your property. You may want to view some home security cameras reviews to hep you get started. Licensee: If you enter another’s property for your own purposes with permission from the possessor of the property, you are considered a licensee. A licensee enters another’s property not for social or for business purposes, but for their own purposes, for example, when you walk on someone else’s sidewalk while en route to another location. The owner or possessor of the property (the sidewalk) owes persons walking on their property a heightened duty of care to ensure their safety, as compared to a person who is considered a trespasser, because they had permission to enter that property. However, because the person who entered the land (walked along the sidewalk) was only there for their own purposes and not for purposes relating to activity which is occurring on the property, such as a business, the duty owed by the possessor of the property is not absolute. Invitee: If you enter another’s property for reasons which are related to activity which is conducted on the property, you are considered an invitee. For example, if you enter another’s property for which a business is being conducted on, you are considered a “business invitee” and the owner or possessor of that property owes you the highest duty of care to ensure your safety. That duty extends to all areas of the property relating to the business, including the parking lot and inside the actual business. As a result of the fact that you were “invited” to enter the property for reasons related to activity conducted on the property (shopping at a store), the owner or possessor of the property must take all steps necessary to ensure your safety, including taking steps to not only fix unsafe conditions of the premises but also to take reasonable steps to learn about unsafe conditions of the premises as to avoid any harm to their customers. The most critical difference between the rights owed to an invitee as compared to a licensee is the requirement that the possessor of the property conduct necessary inspections to prevent unsafe conditions before they occur, as the invitee may reasonably rely on the fact that the possessor of the property took all reasonable steps to ensure the safety of others. This includes making sure that a parking lot is free and clear of snow and ice, making sure all entrances and exits are free and clear of any obstructions, and inspecting and maintaining the walkways inside the premises to make sure there are no hazards which could cause someone to slip or trip. By: Jordan Schlossberg
Getting married soon?
Getting Married Soon? Do You Need or Want a Pre-Nuptial Agreement? In a society where a high percentage of marriages end in divorce, many more individuals are considering whether a pre-nuptial agreement should be signed before their weddings. It’s a good idea to consult with an attorney well before you set a wedding date to find out if such an agreement would be something you’d want to discuss with your fiancee. A pre-nuptial agreement can protect assets that you already own from being subject to any division with your spouse if your marriage later ends in divorce. The same applies to assets that you inherit both before and after your marriage. These agreements can simplify the way those assets you acquire while married will be divided if your marriage does end in divorce or even what will happen to those assets if one of you dies during your marriage. A pre-nuptial agreement can protect one party who invests a substantial sum into a marital home, assuring that party of getting their investment back if the marriage ends in divorce. It can also provide for whether one party will retain that home or whether it will be sold if the marriage ends due to divorce or death of one party. It’s important to think about whether you want a pre-nuptial or not, before the wedding. Hold back on getting the perfect dress for a little while, until you’ve decided if you want to take out this legal contract. Your dream dress will still be waiting for you after, and if it isn’t, you can just look for some Wedding Dresses in Charlotte options, or somewhere more local to you. Getting a pre-nuptial is vital for some couples, but those who aren’t sure will probably want to discuss it first before organizing anything for the wedding. A pre-nuptial agreement is also used to limit the amount of support of alimony that one party may have to pay to a spouse that they are separating from or divorcing. This can be especially important to someone who was previously married and who may be paying alimony or child support to a former spouse. Many other areas that often lead to disputes after the parties marry can be dealt with in a pre-nuptial agreement in such a way as to encourage greater harmony after the marriage has taken place. These agreements are not for everyone but you should seek to educate yourself to see if it would be a good idea for you. The time to do so is well before the wedding invitations are placed in the mail. By: David Gutin
Customers who don’t pay their bills are an annoying aspect of the business world. Because customers are the backbone of our business, we are hesitant to be too demanding in our dunning efforts, and even more reluctant to sue. Creditors are always hopeful that the bill will be paid and further orders were given. We do not want to incur the wrath of a now and future customer by being too insistent about coming to grips with an outstanding invoice. Yet, studies show that the longer a business’s bill is unpaid, the less likely it will ever be paid. Creditors write off a large percentage of billings to bad debts. To avoid these problems, early preparation can be helpful. Identifying the precise customer is a simple task that is not always handled properly. Creditors should try to get the customer’s composition, i.e., proprietorship, partnership, corporation, joint venture or otherwise, of customer or the exact name of the entity. Credit issuers tend to deal with one representative of the customer, such as an officer, credit manager, division head or adjuster, and to address communications and billing to that person. Getting a credit application of some kind completed is a big step in accomplishing this. If you intend to charge interest on overdue billings, that fact must be stated before starting work. Merely setting that forth on subsequent invoices may not be binding, because it may not be considered to have been part of the original terms of engagement. Putting this in a signed credit application should be considered. The same holds true as to a clause giving you the right to attorneys’ fees if referred for collection. There comes a time when a creditor and customer part ways and a bill remains unpaid. A creditor may rebill for a while, or write letters that become increasingly ungracious or make calls. If responses or promises are received, and the debt is acknowledged, a confirmation letter should be sent. Although it may seem self-serving, it may become another piece of uncontradicted evidence in the future. When you are totally ignored, or dunning efforts result in counter-threats, it is time to step back and consider whether you want to write the debt off or proceed with legal action. You may want to think about referring the case to outside counsel. You’ll be able to come to some sort of debt settlement arrangement that suits you and your predicament. An independent attorney will be objective in evaluating your chances of recovery and any settlement offers. You will be less annoyed by the continued paperwork, and all of this may be worth paying a lawyer by the hour or on a percentage basis. There are collection lawyers who are willing to handle these claims on a contingency basis, requesting only that you advance or reimburse costs incurred. Of course, some former customers will want to settle upon receipt of a demand letter from outside counsel. Such a letter is believed to show your serious intent to sue them. You should transmit to the attorney copies of the credit application if there is one, invoices and statements, and relevant correspondence. A compromise is frequently in order. The attorney on a contingency has a stake in your recovery, and will want the largest settlement under the circumstances, but will likely be practical about recommending a compromise. You must look at this as found money once you’ve farmed it out because it is clear you would not have gotten anything by yourself. More than 44 years of experience in commercial and retail collections has led me to conclude that it is your early planning, diligence, and flexibility which will give you the advantage and lead to higher collectibility of receivables from your former customers. By: David I. Grunfeld, Esquire
Frequently Asked Questions
Frequently asked questions about Corporate Law I am starting a new business. What form of business entity should I use? Corporation? Partnership? LLC? I want to raise money from some friends and acquaintances for a business venture I have in mind. Do I have to get involved with securities laws? When should I start planning to transition my business to my children, and how should I go about it? I’m ready to retire. How do I go about selling my business? I am interested in buying an existing business. How do I go about that? I am going into business with some friends. What sort of paperwork is involved and what will it cost? Our business lawyers are here to help you with these and other questions.
The 95 % Rule for a Custody Case
Only 5% of what you tell your lawyer about your custody case will be important enough to make it’s way to trial, if there is one. Getting to that 5%, however, is going to take hours of telling your attorney about your life, including information that you don’t think has anything to do with custody. But just about everything that has ever happened to you is potentially relevant to your child’s best interests, and only the attorney can separate out the information that may contribute, positively or negatively, to your case. Don’t censor anything, especially those things that the little voice in your head tells you not to tell your attorney, because those are precisely the things your spouse’s attorney will use against you. You saw a psychiatrist during the breakdown of your first marriage ten years ago, and you don’t think that has anything to do with your relationship to your children today? Maybe it doesn’t; but your attorney can’t protect you from what he doesn’t know. You can’t tell your attorney too much. But you can tie one hand behind his back by telling him too little. By: David I. Grunfeld
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