Family Law Topics
Click on the headline to read more...
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
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.
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
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
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.
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.
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.
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.
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…)
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. There are two types of retirement plans: Employer Sponsored Plans and Individual Retirement Plans. Employer Sponsored plans are further divided into two types of plans: Defined Benefit Plans and Defined Contribution Plans. Employer Plans Defined Benefit Plans: These plans are also known as “Pension Plans” and are generally funded by a participant’s employer, but some plans require participants to contribute as well. The funds in the plan grow tax-free and upon the participant’s retirement, the participant will receive a monthly benefit that is calculated by a formula based on the individual’s past earnings, tenure and age of the participant. Many people opt to look into the plans available at IRA Investing instead, as the monthly benefits may be taxable. Defined Contribution Plans: These plans are funded by direct contributions from the participant and are sometimes matched by the employer. The following are brief overviews of the most common Defined Contribution Plans: Traditional 401(k): These plans allow a participant to contribute pretax dollars, subject to annual limits, into an investment fund that will grow tax-free. A participant may withdraw funds at anytime, but most distributions prior to age 59 1/2 will incur a substantial penalty. Upon reaching 70 1/2, the participant is required to start taking distributions based on a formula provided by the IRS. All distributions from a Traditional 401(k) are taxed as ordinary income. Roth 401(k): Unlike a Traditional 401(k), contributions to a Roth 401(k) are made with after-tax dollars and all distributions are received tax-free. However, any distributions prior to age 59 1/2 will still incur a substantial penalty. In addition, unlike a Traditional 401(k) the participant is not required to start taking distributions when they attain age 70 1/2. 403(b) – These plans are similar to a Traditional 401(k), but are only offered to employees of public schools, employees of certain tax-exempt organizations and certain ministers. 457 – These plans are offered to employees of state and local governments and some tax-exempt organizations. Participants defer a portion of their salary into the plan and the contributions and earnings are not taxed until distributed from the plan. A participant is able to withdraw once they are no longer employed. Unlike the plans described above, there is no penalty for withdrawals prior to age 59 1/2. Individual Plans The below plans are plans that an individual can open on their own whether or not they participate in an employer sponsored plan. Traditional Individual Retirement Account (“IRA”) – These plans allow an individual to contribute funds, subject to annual limits, into a tax-deferred retirement account. Contributions may be tax-deductible, but the deduction may be limited if the individual or the individual’s spouse is covered by a retirement plan from an employer or the individual’s income exceeds certain levels. One example is gold or coin IRAs, which you can get from companies like Lear Capital. These companies administrate the IRA for their clients. A review of Lear Capital can be found here: https://www.retirementliving.com/reviews/lear-capital-review. Similar to a Traditional 401(k), an individual may withdraw funds at anytime, but most distributions prior to age 59 1/2 will incur a substantial penalty. Upon reaching 70 1/2, the participant is required to start taking distributions based on a formula provided the IRS. All distributions from a Traditional IRA are taxed as ordinary income. Roth IRA- These plans are similar to Traditional IRAs however, contributions to these plans are not tax deductible and once an individual has income above a certain threshold, the individual’s permitted contribution will be reduced. When it comes to choosing the right retirement account for you, this IRA contribution calculator can help walk you through all you need to know to get up to speed and make an informed decision – https://www.sofi.com/roth-ira-calculator/. Similar to a Roth 401(k), all distributions are received tax-free and most distributions prior to age 59 1/2 will incur a penalty. Also, an individual is not required to start taking withdrawals upon attaining age 70 1/2.
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…)
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…)
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…)
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 control Going to court means putting your divorce case in the hands of the legal system. Once the cards are down, you will have little control over the outcome of your case.. If you disagree with the outcome, which may come many weeks after a trial, you must follow a designated appeal process in order to seek a change or modification. Mediation allows both parties to retain control over the particular process, which may include the division of assets, personal property or even their custody schedule. Mediation requires two parties who are committed to the process, willing to listen, brainstorm solutions and compromise. Flexibility with your schedule We recognize that clients have a life and work obligations in addition to addressing their legal issues. Mediation provides clients with the flexibility to create a schedule that suits their needs. Other legal alternatives such as litigation require you to adhere to the scheduling of the court and attend hearings on specific days. With mediation, you and your spouse can decide on when and where the mediation process will happen, allowing you to work it around your busy daily schedule. Reduced Legal Expenses Litigating your divorce means that both parties will generally have to pay their attorney and court costs, which can be expensive in contentious matters. For the process of mediation to proceed, only the mediator must be paid between the two of you. Mediation is an ideal choice for parties who are committed to an out of court process, are amicable and want to minimize attorney fees during their divorce settlement. Our family lawyers in Montgomery County are sensitive to the financial resources of their clients and wish to offer a range of services including mediation, arbitration and collaborative divorce. It is important to discuss the processes available to you with an attorney and determine which process best suits your needs. Quicker settlements With an open mind and the reasonable approach to addressing what issues may arise, mediation can help both parties come to a conclusion quickly. Instead of waiting for hearing dates and dealing with the long court process, you and your spouse can proceed as fast as you wish given the situation. Attorneys at Astor Weiss will make every attempt to accommodate your schedules and may put several meetings on the calendar in advance in order to facilitate the momentum of negotiations. At Astor, Weiss, Kaplan & Mandel, our family lawyers in Montgomery County have witnessed how challenging and draining many divorce cases can be. Therefore, our firm set out to provide many options for dispute resolution for our clients. Mediation is a great process for those willing to make the effort and can lead to a satisfactory resolution with minimal court fees. If you have any questions or would like to schedule a mediation consultation, please call 215-790-0100.
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.
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…)
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.
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
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
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
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
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.
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
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
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