The purpose of a blog is not to recount war stories.  But war stories can be illustrative.  We represent a client whose wife is a homemaker.  She has the skill set to seek employment as a teacher but, for a variety of reasons, some reasonable, some not, she has not sought employment. On behalf of Husband, we have calculated the support due and advised our client to pay it.  We did so on the basis of wife having a -0- earning capacity, even though time has made that position more and more unrealistic on wife’s behalf. Wife is represented by a smart attorney.  We know that if she thought her client was undersupported she would take the matter to court.  After more than two years of proceedings she has threatened court but never filed. Some might argue that because she did not file, our client must be overpaying.  In our judgment those people are not in business of assessing the cost of litigation and offsetting that against the broad range of possible outcomes if the case was litigated. Experience tells us to follow our gut after running several series of calculations.

In recent months wife has begun an email campaign to convince her husband to pay more.  We have told our client not to dismiss that request but the only reason to pay more than our recommended amount would be if Wife came through with a comprehensive proposal to settle the entire case.  That would save the cost of further litigation and allow our client to formulate his own “plan” to right himself financially.

This week, the email campaign went into high gear.  The client forwarded to us an email proclaiming that the $5,500 in monthly child and spousal support she was receiving was insufficient to meet her needs.  Some readers will dismiss such claims as ludicrously high.  Others would disagree. Our client has net income of roughly $12,500 per month.  Forty-five percent is the “right” amount due based upon our calculations. This estimate is based upon the guidelines now in effect in Pennsylvania for primary custodians who are not working and have primary custody of two children. The email noted what the children were not doing and how disappointed they were to not be going to particular activities where a fee is involved. The email even alleged that there was no money to take the children to the dentist.

This drove our client to the edge. The client began to chain email us and then to call.  What would we do? The family employs a psychologist to help them deal with child custody issues.  Our client phoned the psychologist, who, appropriately told our client that children should not be immersed in financial issues.  The client forwarded this advice to his spouse.  The reply was that he could tell their elementary school daughter that she would miss out from her upcoming activity as there was no money.

The client shared his reply to this with us.  He started out well.  He was paying what his lawyers told him was appropriate support.  He did not tee off on his wife about her ability to secure employment.  But then he slipped over the edge. “Tell Nancy (their daughter) to call me.”

Nothing good could come of this, so we stopped our other projects and intervened.  The psychologist had just told our client to keep the children out of support decisions. The only reason he was going to speak to his child was to address the “need” for the upcoming activity. If he took the call he was going to get a crying kid.  Not many fathers can say no to a crying child who is not in their custody.  They give in.  And in so doing they send two “wrong” messages.  The first is that the key to getting money out of a spouse is to use the kid.  Bad precedent for the child and for the custodial parent. The second message is more invidious.  The message to the child is that the real power is not with the custodial parent but with the spouse with the money. The message to the child is that “Mom is powerless, Dad is the one who makes things happen.” 

We advised our client to do nothing.  He was paying adequate support.  No one was in any real distress. We had a child who, like all children, was needy.  If he stepped forward and satisfied the need, he was creating a cycle of demands without a foreseeable end. The child learns to call a parent and cry for whatever was her need.  The dependent spouse learns to couch any need as a child’s need and let the child carry the water. 

Is this always the answer? Yes and no. There are times when an event is so unique or so important that exception should be made. But the basic premise of all support is that “needs” of divorced couples should be planned and budgeted, not handled extemporaneously. Costs are difficult to manage in a world where parties live together.  Once they split and occupy two homes, costs are all the more problematic.

There is collateral damage as well.  Seven or more emails and a phone conversation all made the cost of divorce more unmanageable. In an age when a phone is always at one’s side and text messages offer instant access to attorneys, clients tend to forget that they are spending real money.  Last week our client was ruminating about the fact that his divorce costs were mounting. Today he racked up charges that did not bring him any closer to concluding his divorce.  Rather, he came perilously close to making it last longer by creating a cycle where both his spouse and his child could increase their household budget by resort to claims of dire need.

Instant access can be a good thing.  But it is also an expensive thing.  It is not uncommon for clients to be staggered by a legal bill where they have indulged in hours of instant access legal counseling over relatively innocuous issues.

Over the past twenty years the landscape of executive compensation has changed markedly.  One new feature is the appearance of executive stock options as a form of compensation.  Stock options are a device by which key employees are granted the right to purchase shares of stock at a given price.  The “option” is to acquire a fixed number of shares of the employer’s stock at the closing price on the date the options was granted.  On the day the options are granted, they have no value because the price of the option stock is equal to the closing stock price that day.  The theory is that as the employees work and improve the state of the company the stock will increase in value.  If I am granted the option to buy stock in my company at $10.00 a share and the stock price goes to $12.00 a share, my option has an intrinsic value of $2.00 per share. If I have 10,000 such options, the options are worth $20,000 before tax. If the price of the stock goes to $20.00, those same options have a value of $80,000.  Options are usually granted so as to vest over three years following the grant.  Once vested, they are usually exercisable for a period of ten years.  These terms can vary based upon the language of the grant.

Alas, the last nine months have not been good to option holders. Many stocks have lost 40% of their value or more.  When the purpose of the option is to incent employees to drive stock prices higher, there is very little incentive to work hard and produce results in a world where the options are exercisable at $10.00 and the stock is trading for $6.00. As the option holder I have to drive the stock price back to $10.00 before the option has any hope of creating value. In some extreme cases options are out there at prices in excess of $50.00 where the stock is trading for less than $10.00.

Hope may be on the way.  The Wall Street Journal reports that companies as diverse as Google, Toll Brothers and Starbucks are developing programs to either re-price or exchange options so that incentives are re-instated. The reason is that two-thirds of public companies have 75% of their options “underwater”; meaning that the options are more expensive than the stock itself and that they have no value.

While these schemes are picking up speed, they are not approaching the level of re-pricing that occurred after the stock market nosedive of 2001. What has changed is that under new accounting rules options need to be reported as expenses by the offering businesses.  This hurts already meager earnings. Second, companies are chary to re-price options until they feel certain that stocks have reached their low ebb.  Otherwise, the incentive is again taken out of the option pricing system.  Finally, some companies are moving away from options in the direction of restricted stock.

The question in a divorce proceeding is whether an exchanged or re-priced option is a post separation asset or a marital asset recast into a new form. Let’s say an employee spouse is granted a series of options just months before separation at $10.00 a share.  After separation the stock drops to $3.00 a share.  The employer decides to redeem the options and substitute the same number of options with a price of $3.00 a share. Are these new options marital? Would it be a different result if the old options were canceled? Suppose the substitute options have a revised vesting schedule?

There is no law on this in Pennsylvania today. There is a reason to try to anticipate this issue and address it in the context of negotiating a property settlement agreement by providing in the agreement that if options are retired and substitute or re-priced options issued, these options should be treated as marital as well. The same principles may be applicable to options granted by a new employer as a device to compensate a new hire for marital options that were left on the table when the employee changed jobs. Again, the law in this regard is not clear, but the point is one that merits discussion in any divorce negotiation.

For more information. Online.wsj.com “Underwater Stock Options Not Dead Yet” 3/18/09; 7:53PM

Until 2005 and a series of amendments to the Pennsylvania Divorce Code the law of Pennsylvania was quite clear. If one party died before a decree of divorce was entered and all appeals had expired, the divorce was over. In re Estate of Bullotta, 798 A.2d 771, 774 aff’d 838 A.2d 534 (Pa. Supreme (2003). The effect was as if no divorce was ever filed. If property was jointly held, it went to the surviving spouse even though divorce grounds were established. Claims for economic relief would dissolve. Even where the matter had been disposed of by the trial court, if an appeal was pending, death of a party still ended the divorce for all intents and purposes.

Recognizing that this produced some highly inequitable results, the General Assembly sought to remedy this in 2004 when Divorce Code amendments were considered. Section 3323(d.1) was added providing that where divorce grounds have been established, the divorce action would proceed with the executor for the decedent being substituted as a party for the decedent.

To establish grounds the statute established the following rules. If a fault divorce was pending the Court needs to have found that divorce grounds were established. It is unclear what the effect would be if a trial court found that grounds were established only to have that finding reversed by an appellate court. If both parties consented to the divorce, grounds were established. Finally if an affidavit of two year separation was filed without contest or the court found two years of separation had elapsed and the marriage was irretrievably broken, grounds were again said to be “proven”.

Where grounds are not established as of the date of death, the old rules apply. The divorce ends and each party resorts to those rights created by federal laws like the Retirement Equity Act, the rights of joint owners to the decedent’s interests and the rights to take against the will under the Probate Code. Taper v. Taper, 939 A.2d 969,973 (Pa. S. 2007)

What does this mean? If there are no grounds established, the survivor will get all of the qualified retirement benefits such as 401(k) plan. Where property is held as a joint tenancy, the survivor gets all. Even if the decedent prepares a will leaving it all to the non-spouse, the Probate Code permits the surviving spouse to take “against” the decedent’s will, thereby claiming portions of certain assets classes.

In a case decided last December a divorce action was initiated in 2001 by husband. In July 2006 Husband had a heart attack and lapsed into a coma. He died later that year. A year later Wife asked that a personal representative be appointed for Husband so that the divorce could proceed. The trial court declined because ground were not established as of the date of death even though they probably could have been proven. Because they were not “established” by the date of death the trial court lost jurisdiction to proceed. Gerow v. Gerow, 962 A.2d 1206 (Pa. Super. 2008)

It seems that the continuing saga of the single California woman who gave birth to octuplets, while having 6 other children at home is akin to watching a car crash.  You really do not want to look, but you are transfixed, watching the damage occur almost in slow motion.

Everyone has an opinion on this matter. There is a saying in the legal community that bad cases make bad law.  I think that this is an example of that truism.  After all, don’t you want to take those children and place them somewhere else?  Don’t you want to shake mom by the shoulders and yell “what were you thinking?”  Wouldn’t you like to find the sperm donor and find out why he agreed to the arrangement and if he feels some responsibility for this mess?  And don’t you want to yank the doctor’s medical license?

These are reasonable responses.  But there is another way to look at these issues.  If you had the legal power to do this, it would not just affect “Octo-Mom”.  It would also affect other women who have children through (anonymous or known) sperm donors.  It might  affect mothers who conceive the conventional way, whether married or un-married.

“What were you thinking” you yell.  Well, who gets to decide how large a family is too large.  Raising a family is not about how much money you have or how many children sleep in 1 bed.  We criticize China for mandating 1 child per couple. The result of that social policy (and that law) resulted in the killing or warehousing of baby girls in China.  Some religions mandate no birth control.  Many people believe that children are a blessing and the more children, the more blessings.  Who gets to decide?  Why?  Certainly there are reasons for concern in this case, but how do you know until octuplets are born, that 8 children will survive a difficult pregnancy.  And would you want a law forcing the selective termination of the fetuses against the mother’s will?

How about the sperm donor?  Laws protect those who donate their sperm or their eggs to people who wish to have children, but who face biological or societal barriers.  These laws were enacted so that people who wanted to have children could do so.  Our national values support having a family and the ability to donate eggs or sperm to an unrelated third party or to a medical facility for someone’s use is protected.  How can we ask someone who did this protected by law to care for children he did not want, in a situation he could not have foreseen?  Or could he?  Should he?  And if we change the laws, does that mean that an adoption or an unexpected pregnancy should tie biological parents together, even if that is not what they want?  And what about the child?

Doctor, how could you not know this was not a good idea?  There are rules governing the best practice in fertility treatments.  Implanting 8 embryos at once is not favored.  And your patient has 6 other children at home.  What were you thinking?  But—why does a doctor get to make the decision.  Do you want your physician to decide how many children you can have?  Do you want your doctor deciding you have too many or too few kids?  Do you want your congressperson, your neighbor, or even your mother telling you how many children it is ok for you to have?

Finally, even if you want that kind of social, legal and/or state interference in deciding the number of children you may raise, what is the punishment for not following the rules.  Do you take the children away?  Don’t children have the right to be raised by their parents, as long as they are healthy and cared for?  Again, who makes these decisions?  Strangers?  Family?  Clergy?  Me?

Until there are good answers, we will just have to watch the spectacle of “Octo-Mom” and give thanks she’s not related to us!

More and more clients are asking us whether they should “mediate” their divorce. It is clear from the nature of the way the question is posed that they perceive mediation as both more fair and, lower in cost. This can be true. But before we select an option, it would be wise to examine what mediation means and how it compares to the rest of the menu.

Mediation is probably best known in the field of labor law.  School districts do it all the time in their labor contracts with teachers and staff.  Each side selects one or more informed representatives. They select a  neutral mediator to “lead” the discussion of their differences in the hope of reconciling them.  The mediator is not an advocate for either side. In fact, he or she must remain scrupulously neutral in order to retain the confidence of both sides to the negotiation. The mediator’s job, is essentially to keep the discussion focused and to record understandings that are reached by the parties for later review with their constituents. 

One of the keys to successful mediation is what we termed informed representatives. If you are no thoroughly familiar with what you are negotiating you are often at a huge disadvantage.  Using our school district paradigm, if one party is unfamiliar with data concerning teacher salaries and benefits the mediation is skewed from the start. This is true in divorce based mediations as well.  If both parties don’t come to the table equally familiar with the assets they are dividing and how they work, it is very difficult  for mediation to work. Under principles of mediation, the mediator is not supposed to “help” either party in the negotiation process.

If your case is simple, meaning that the assets are easily understood, mediation can be relatively easy.  But even in the simple cases, clients often misapprehend what they are doing.  They assume that each party must get half of the assets and often ask questions like: “How do I get my half of the house?” This is the type of question that needs to be addressed before mediation can be meaningful. Just as important are questions that aren’t demanding an answer.  Should there be alimony in addition to a division of the assets? Has household debt been acceptably proportioned?  They create some interesting ethical dilemmas for mediators as well? If a dependent spouse never thinks to raise the question of alimony, is that the mediator’s responsibility?  As Julia Malloy-Good, an attorney specializing in mediation in West Chester, PA. observes, this is where lawyers can help the mediation process by insuring that the clients come to mediation with lists of issues that may require consideration. 

In complex cases where there are tricky assets or assets laden with tax issues or complex debt arrangements (e.g. one spouse’s car was financed as part of a second mortgage), it is all the more important that both sides come equally prepared.  We often find that parties will have spent considerable time and money with the mediator only to see the resulting document memorializing what they have agreed upon to find that the deal they have made can’t be done. Good mediators who are experienced with complex financial assets will try to steer the parties away from these problems but that can sometimes create “neutrality issues”.  Let’s say that my spouse and I make a deal. She gets the house and I get the car and the pension.  If the experienced mediator points out that the house is burdened by the debt for my car, don’t I have the right to snap at the mediator for pointing that out to the other side?

The second, and more nettlesome issue involves emotional intelligence.  Again, we have spoken about  “informed representatives”.  But divorce and money are both highly charged emotional issues. Some folks can’t really negotiate clearly because they are emotionally unsuited to the process. Other couples come to the process with wildly disparate negotiation skills.  Many people are employed in jobs where they negotiate for a living.  Homemakers can be effective negotiators as well  but they are often not the equal of the person who works as a buyer for a company, a salesperson or a contract administrator. Anyone can be taught to box but few of us are ready to spar with professionals. Mediation is based on the premise that each side will select informed negotiators who are well schooled in the facts and the dynamics of negotiation.  The problem with divorce mediation is that  “you” are the one doing it and you don’t get to appoint someone to act for you.

This may sound like a diatribe intended to discourage mediation. It is not intended as such. Where two well informed, motivated and emotionally balanced people mediate, they are often very happy with the process because “they”  made their deal instead of the lawyers and because they may have saved some money along the way. They walk out with a memo of understanding written in language they understand and which their lawyers are directed to turn into a legally binding instrument.

If mediation is not your cup of tea or you try and fail, a second alternative is to arbitrate. Arbitration is a different animal. The “parties” don’t decide on their arrangement. Rather they each present their best case to a neutral person  who “decides” once and for all how a matter will be concluded.  The judicial system works in the same way, but there are some key differences.  Almost any judicial ruling is subject to review by a higher authority. In most counties in Pennsylvania, a divorce case will go to a master or hearing officer. His or her report is appealable to a judge. The judge’s ruling is appealable as of right to the Superior Court of Pennsylvania. Unhappy there? You can ask the Supreme Court of Pennsylvania to look at the decision. In theory, you can even appeal from that and ask those nine guys in Washington DC to take a look at what ails you.

Arbitration does not allow for that. With very few exceptions, an arbitrator’s ruling is final and not appealable.  That can be scary but ask anyone who has seen his or her spouse exercise all rights of appeal and that can be scary as well. But it does mean that you should select your arbitrator carefully because that person is going to control it all; for better or worse. If you arbitrate, you need an arbitration agreement that makes clear how the arbitrator’s ruling fits into the judicial process. Only a judge of a court can divorce you. Arbitrators can decide financial issues and can even hear and decide custody disputes but Pennsylvania law is clear that judicial courts can undo a decision affecting child support or custody where the court is convinced that the child’s interest was not protected.

Usually, arbitration is quick. File for something in court; you wait in line like at the airport. The people ahead of you in line are trying to get to a place too. Arbitration is like owning a fractional interest in your own jet. You and your spouse pick the time and the arbitrator makes time for you to get you where you want to go.  The other advantage of arbitration is that usually the hearings move very quickly. In the judicial system, the court is making a stenographic recording of the process. The court reporter is taking down everything that is said. The exhibits must be marked so that a reviewing court can see precisely what happened. In arbitration there is no reviewing court so there usually is no record to keep. The focus is on having the matter concluded; usually with a 25 to 50 page written report in which the arbitrator recites what he or she heard and how they assess it. That report also will direct who gets what assets and liabilities and on what conditions. It is ordinarily agreed that the report becomes a court order by agreement of the parties.

Arbitration is not free. Use the judicial system and ordinarily you pay a few hundred dollars in court costs and the taxpayer picks up most of the rest.  It is important to understand the arbitration process thoroughly before you start. Some arbitrators such as Philadelphia’s Michael Fingerman control the hearing very closely and conduct almost all of the questioning themselves. Others, such as West Chester’s Alita Rovito tend to favor allowing counsel to try their case much as they would in an ordinary judicial hearing, without the burden of making a record. Because arbitration is private one can negotiate the rules of the road. But, the arbitrator is going to charge the parties the same rate as a skilled lawyer to do the work. Sometimes the cost is equally split. Sometimes the parties allow the arbitrator to allocate his/her fee between the parties. Smart arbitrators demand to be paid before they issue their reports as most folks are unhappy with at least some part of an arbitrator’s ruling. But with arbitration you will usually be finished in a matter of a few months where the judicial system  easily takes a year or more to chop through the same morass of paper and argument. That often makes arbitration worth the extra investment. It also saves the costs of transcripts that most litigants find prohibitively expensive. 

So, that’s the menu. You make the choice.

Pennsylvania automatically gives grandparents the right to file for custody if the parents of the grandchildren are divorced, separated, or if one of the parents is deceased.   

The public policy of the Commonwealth is to provide children with “continuing contact” with grandparents when a parent is deceased, divorced, or separated. 23 Pa. C.S.A. § 5301.  Additionally, Pennsylvania gives standing to grandparents with whom a grandchild has resided for twelve months or longer. 23 Pa. C.S.A. § 5313.

After the grandparents file for custody, the court must determine whether it is in the child’s best interest to have time with the grandparents. Bucci v. Bucci, 506 A.2d 438 (Pa. Super. 1985). In order to obtain custodial time from the child’s parent(s), grandparents need only “convince the court it is in the child’s best interest to give some time to the grandparents.” Bucci, 506 A.2d at 438. The grandparents’ burden is lower than in a custody or partial custody case between two parents because “the amount of time that the child would be away from his parent is less.” Rigler v. Treen, 660 A.2d 111 (Pa. Super. 1995) (quoting Bishop v. Piller, 581 A.2d at 672 (Pa. Super. 1990)). Any time given to the grandparents must not interfere with the child’s relationship with the parent(s).

In determining what is in a child’s best interest, the court must consider the following factors: 1) the physical well-being of the child; 2) the intellectual well-being of the child; 3) the emotional well-being of the child; and 4) the spiritual well-being of the child. Johnson, 589 A.2d at 1160. Courts have previously found that having one more adult to love and care for a child would be in the child’s best interest. Bishop v. Piller, 581 A.2d at 670. Additionally, our courts have considered whether any concrete evidence was produced that there would be a detriment to the grandchild and they have observed that they “cannot overlook the ultimate result that grandparent visitation is beneficial for a child’s development in that it establishes family ties which can continue long beyond childhood.” Commonwealth ex rel. Miller v. Miller, 478 A.2d 670 (Pa. Super. 1984). Often a child’s emotional and intellectual development would be “enhanced through a growing relationship” with his or her grandparents. Id. At the same time courts are ordinarily careful in allocating grandparent visit time to respect the fact that parents are already juggling busy schedules and that parent time with children takes precedence over grandparent needs.

Under Pennsylvania law, traditional contract law principles have been applied in cases addressing the validity of prenuptial agreements. At the same time the case law held that for a prenuptial (i.e., premarital agreement) to be valid there had to be either a fair provision for the financially weaker spouse or a full disclosure. In 1990, the Supreme Court of Pennsylvania abandoned inquiry into fair provision. The single requirement would be a full disclosure of financial resources contemporaneous with execution of the agreement. In 2004 The Pennsylvania legislature enacted 23 Pa.C.S. § 3106. It requires that a party seeking to invalidate a premarital agreement must prove that the party either did not execute the agreement voluntarily, or that prior to execution of the agreement, the party was not provided (i) a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) did not have an adequate knowledge of the property or financial obligations of the other party. 23 Pa.C.S. § 3106. Basically, if the goal is to set aside or invalidate a prenuptial agreement, then that party must prove that they signed the agreement against their will or they signed it without knowing their future spouse’s full financial situation, that they did not waive their right to the disclosure of their future spouse’s financial situation, or that their future spouse left out important financial elements from the disclosure they did make.

The language of the statute emphasizes the disclosure of information between the parties, but it also refers to the “voluntariness” of the agreement. Typically, a factual analysis as to whether a prenuptial agreement was entered into voluntarily by a party involves references to the (usually, close) proximity of the wedding to the execution of the agreement, ultimatums for signing the agreement from one party to the other, or some other circumstance that the signing party could construe as placing a heightened degree of pressure on them and, thereby, making their execution of the agreement seem less than “voluntary.” Bear in mind that in an earlier case, Hamilton v. Hamilton, the future bride signed the prenuptial agreement the night before the wedding while pregnant with her future husband’s child. The Court did not agree with the Wife that the Husband’s threat to call off the wedding made her consent involuntary.

Pennsylvania relies on some well established common law principles for determining whether a contract was voluntarily entered into by a party. Causes of action based on fraud, duress, and/or misrepresentation will invalidate an agreement because they undermine the knowledge the parties had when they entered a contract. Simeone v. Simeone, 581 A.2d 162 (Pa. 1990). Coupled with § 3106, litigants are able to attack an agreement based on information contained within it, as well as the circumstances surrounding its execution. These causes of action, however, are fact-driven and due to the preponderance of the evidence standard applied to such cases, require solid evidence in order to successfully overturn the agreement.

In presenting and executing a prenuptial agreement, it is always the best practice to provide parties with sufficient time prior to the event or ceremony to allow the parties the opportunity to review the information, consult an attorney, and execute the document. None of those conditions or an established period of time, however, are required for an agreement to be validated. 

The Supreme Court has also rejected the contention that the a party must show a future spouse’s awareness of her statutory rights before waived. Stoner v. Stoner, 572 Pa. 665 (Pa. 2003). Recently, the Berks County Court of Common Pleas declined to invalidate an agreement on the basis that it that was not reviewed by an attorney. The party seeking to invalidate the agreement had had the agreement in her possession for weeks and had retained an attorney, but neglected to consult with their designated counsel. She was deemed to have knowingly executed the agreement. Savory v. Savory, C.C.P. Berks Co. January 2009. (cite)

Although not impossible, it is clearly difficult to overturn a prenuptial agreement. Nevertheless, in order to ensure that an agreement withstands the careful scrutiny of trial, it is advisable that parties begin to consider prenuptial agreements at the earliest possible time, because, simply put, the courts will not save people from making bad deals, being inattentive or otherwise showing poor judgment. To ensure that a fair deal is struck, parties should agree to consult separate attorneys as early as possible, make full and fair disclosures of their financial positions, and get what can be an extremely awkward aspect of the marriage process out of the way.

If a person cares enough about another to want to marry it can be hoped that he or she would be prepared to make a full disclosure of his/her financial position, and afford the intended spouse the time and resources to have someone independently advise them of the merits of the proposed agreement.   And if you are engaged to someone who does have a problem with making a disclosure or review of the agreement by an independent attorney the warning bells should be sounding. These agreements will bind you for so long as you are married. The value of the legal rights involved in such an agreement is incalculable.

In this changing economy, how will the courts value your business? Will the Court use the date you separated from your spouse or the date that the assets and debts are divided?

Unless one of the limited exceptions exists, the courts will value a marital business as close to the date of distribution as possible. While the Divorce Code does not explicitly state the date to use to value the marital assets, the courts hold that using the date of distribution value effectuates economic justice between the parties. Sutliff v. Sutliff, 543 A.2d 534, 536 (1988); Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006); Nagle v. Nagle, 799 A.2d 812, 820 (Pa. Super. 2002) citing Diamond v. Diamond, 519 A.2d 1012 (Pa. Super. 1987). In Sutliff, the court stated that “a valuation date reasonably proximate to the date of distribution must, in the usual case, be utilized” because “it is inconceivable that the requirement that the distribution be made in such proportions as the court deems ‘just’ could be satisfied without reference to the current values of the assets.” Sutliff v. Sutliff, 543 A.2d 534, 536 (1988).

The court recognized the importance of using the date of distribution value, as opposed to the date of separation value, by commenting, “to distribute property without regard to those fluctuations would be illogical, and would undermine the legislative intent of making the equitable distribution process responsive to the contemporaneous needs and financial situations of the parties” Sutliff v. Sutliff, 543 A.2d 534, 537 (1988). This is particularly important in this economic climate given that the values for most assets have decreased.

Additionally, the court can only value the marital assets on the date of separation when limited circumstances exist. Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006); Litmans v. Litmans, 673 A.2d 382 (Pa. Super. 1996). The court confines the exceptions to situations where (1) one spouse consumes or disposes of marital assets or (2) there are other conditions that make a current valuation difficult. Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006) citing Benson v. Benson, 624 A.2d 644 (Pa. Super. 1993).

For example, in McNaughton v. McNaughton, 603 A.2d 646 (Pa. Super. 1992) the court valued the marital real estate as of date of distribution, but valued the husband’s marital business at the date of separation because the husband controlled the business, the business was difficult to value after separation, and the husband influenced the business’s value by lowering its value. See also Benson v. Benson, 624 A.2d 644 (Pa. Super. 1993).

Additionally, in Adelstein v. Adelstein, 553 A.2d 436, (Pa. Super. 1989), the husband owned one-half of a corporation, but after the date of separation, the other owner received additional shares of stock (without consideration), granting him a much larger ownership percentage of the corporation. The court noted that the existence and nature of marital property is determined as of the date of separation and that an attempt by shareholders to rearrange their respective interests did not affect the ownership interest that existed on the date of separation. Thus, the court valued the husband’s ownership interest as one-half of the corporation as of the date of separation and would not support the husband’s efforts to minimize his ownership interest.

So, unless one of the limited exceptions exists, the court will value a marital business as of the date of distribution.

For some segments of our society litigation is part of everyday life. Insurance adjusters make their living out of measuring damages and assessing the risk and cost of doing battle over insurance claims. As such, they make judgments every day as to whether a particular claim is something they want to fight over. In so doing, they take into consideration the damage the claimant incurred, the cost of contesting the claim and the likelihood they will prevail over the claimant (or otherwise reduce the claim recovery).

Businessmen are not as immersed in litigation as those in the insurance industry, but businesses deal with various kinds of legal claims every day. Employees sue for wage claims or discrimination claims. Developers battle municipal authorities over home many homes they can build on a parcel. Again, each of these matters involves assessment of risk and benefits associated with potential litigation.

Family law litigants, even those who assess commercial risks and rewards every day tend to lose sight of the fact that they have a role in deciding when to fight versus when to switch. Tell someone that a planned vacation with his/her children for the summer has been abruptly “cancelled” by a former spouse and many will tell you they do not care what it costs to enforce their rights as parents. That may be true until the bill comes in.

In family law, many clients tell us that they are fighting for principle. Principle does have its place and there are times when a matter must be litigated simply to “send the message” that a client takes his or her rights very seriously and will invest in the principle of the matter even when a dollar recovery is remote. But even in these cases, it is worthwhile to ask, how likely is it that the principle I am promoting will be validated by the Court. And what will I invest for that validation.

A classic example involves child support. Even in a world where there are support guidelines with explicit definitions there is still room for battle. Husband loses his job in the current economic environment. Wife says he quit. Husband says he was laid off. Wife wants to assert that support should be based not on his unemployment but his earning capacity. There is a triable issue of fact. But what is the likelihood that each side will prevail? And what is the cost of the hearing or trial.

Let us say that unemployment is $2,000 a month. Husband formerly earned $7,000 a month. Assume spousal support only is in issue. Further assume that Wife is working and making $2,000 a month. Husband’s best case is no support at all as wages are equal while he is unemployed. Wife’s best case scenario is that Husband owes her $2,000 a month in support based on his earning capacity. Now we have a range of outcomes. Let’s assume that Wife’s attorney estimates his chance of a total win at 50%. The value of the claim is no longer his best case of $2,000 a month but half of that amount. Now how long can he expect to collect the support if he prevails. If it is estimated at two years the value of the claim is 24 months multiplied by $1,000 representing the value of the claim. Now the question becomes what are the litigants willing to spend to enforce an outcome that centers around $24,000. If they try the case for a day before a judge or hearing officer they will each invest probably 30 hours between the various preliminary proceedings. At $300 an hour, each will invest $9,000. Now we see an $18,000 investment pursuing a probably $24,000 outcome. Now, bear in mind, each party will only be putting up half but most would agree that $9,000 is a fairly pricey expense where $24,000 is the probably value of the claim.

Take equitable distribution of a case involving $500,000 in assets. The best outcome for a dependent spouse is probably no greater than 60% or $300,000. The primary breadwinner argues that the spouse can make as much as he can and he proposes 50/50. That means Wife gets $250,000; a discount of $50,000 from her goal. The “spread” buys roughly 165 hours of legal time. That may seem like a lot but spread it over the 18-24 months that most divorces take in Pennsylvania and we are now looking at each side devoting 4 hours a month to preparation and litigation of the case.

The point is to use your attorney and pick your fights wisely. Remember that a $100,000 claim where you have an 80% chance of a win is only an $80,000 claim in reality. Meanwhile, the cost is certain to occur. Even when the most important of principles is involved; cost and likelihood of winning are two factors that cannot be sensibly ignored.

Nelson v. Nelson, support of adult child. Digest to follow
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Nelson v. Nelson, __ S.W.3d __ (Ky. App. 2009); 2008-CA-001861-ME The parties divorced in 2004. Their property settlement agreement provided that the mother would not request financial assistance from the father for their adult dependent daughter for a period of two years. After two years, the father would provide financial assistance, not to exceed $150 per month, if necessary. In 2008, the mother requested that the father contribute to their daughter?s support. The daughter was only able to work six to nine hours per week at Ponderosa due to multiple disabilities, but did not qualify for disability benefits. Her reasonable...
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The Kentucky Supreme Court granted discretionary review in Lichenstein v. Barbanel, a child support enforcement case. The Court of Appeals opinion was designated not to be published. We will digest that opinion soon.
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Here is the final opinion, which was not modified.
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It was Monday morning in Media, Delaware County, Pennsylvania. The daily “list” of special relief petitions had almost thirty matters on it for disposition. The good news was that ten of them had either been withdrawn or “continued” to a later date. The bad news was that an unscheduled “emergency” would mean that the judge would be delayed by an hour in ascending the bench to hear the twenty matters left for disposition.

My matter had evolved into a dispute over $60,000 in interim distributions. But in Courts, matters do not proceed in order of the amount in controversy.  Often there is no rhyme or reason in what order matters are heard.  Judges prefer to dispose of any settled matters first because it lessens the list.  Some will take the cases in the order on the list.  Others will ask how long the parties will take to present their cases and proceed first with those matters requiring the least amount of time.

Sit in any courtroom in Pennsylvania and you will obtain an education.  You will see lawyers and their clients fight over matters of great magnitude.  Others will grapple over the ridiculous and then move on to the sublime.

In court today and ahead of my matter were two lawyers whom I respect. Alas, the fight of the day did not warrant their level of skill. The dispute?  How an affluent couple would divide their summer cottage between them for the season ahead. By the time the Court reached them on the list each client had an investment of $ 1,500 in legal fees.

Great news for the lawyers, right? Really, no. All but the greediest of attorneys would have happily avoided this morning of watching and waiting for their fifteen minutes of fame.  This is what lawyers term a “power fight”. It rarely has to do with the merits of the summer schedule.  Take each party aside and ask them why they are there and the answer is: “He/She has pushed me around enough.

I want my six weeks this summer when I want it.  I have been dictated to enough.”

We have previously written that there are times when “principle” warrants a courtroom battle.  This is not one of them. There is very little principle attached to whether husband or wife gets the last week of August or the fourth of July. Certainly, even wealthy people will not be happy to see their invoice for May legal services include $2,000 for the battle for Independence Day. One other thing.  Rarely does any litigant win a clear victory in these battles.  Compromise is what judges do except where they perceive huge injustice.

So what needed to happen? As we stood in the back of the Court waiting for the proceedings to begin, the comment was made that almost any lawyer in the Courtroom could have resolved the controversy fairly in 10-15 minutes after hearing both sides out. The parties did not need a jurist to decide this matter.  They just needed someone neutral who would hear both sides out and make the decision. Instead, the parties sat for three hours waiting for the judge to reach them.  When he did, the job was done and fairly.  But lawyers sat and client’s paid for hours of waiting.

We have previously suggested that in a world of expensive legal services clients should pick their legal fights carefully.  If the dispute does not require specialized skill but only a brief argument and a prompt disposition ask your lawyer whether you and your spouse can appoint someone to dispose of it quickly. Chances are you will pay that person.  But that will get you a result and your neutral will put you to the head of the line.

This short memorandum will send any competent real estate lawyer into fits of hysteria. Lien law is some of the most complex real estate law one can encounter. But ordinary people bang into these kinds of problems every day and especially so when parties are separated from one another.

There are three ways to own property with another individual in Pennsylvania. Be careful at the outset, because you can also own property as a limited liability company (LLC) a partnership (either general or limited) or as a shareholder in a corporation. But where individuals hold property with others they usually do so in three ways:

                                Tenancy in common

                                Joint Tenancy with right of survivorship

                                Tenancy by the entireties

A tenancy in common means that our interests are completely divisible. If you and I own a bank account or a piece of real estate as tenants in common and one of my creditors gets a judgment against me, that creditor can seize my interest in the asset through proceedings to enforce the judgment. If we have a bank account with $1000 in it and we own it as tenants in common 80% me and 20% you, a judgment for taxes, child support, or any other kind of debt allows the creditor to seize my 80% interest to satisfy the judgment against me. He cannot get at your 20% interest but if we have a house together or we own a race car, the creditor can seize the asset, sell it to satisfy his lien and turn over to you 20% of the proceeds. Goodbye race car.

A joint tenancy is an estate planning device. We own the property together but if either one of us dies, the survivor gets the whole of the asset. We own the $100,000 race car we share. I die. You get it even though I put up $80,000 and you $20,000. Most tenants in common and joint tenants hold equal shares but they can make the percentages whatever they want. It is also not a device limited to two owners. A hundred people can own a joint interest in property if they want. Usually, that does not occur.

Now suppose the two of us own a race car and my ex-wife gets a judgment against me for failing to pay child support. She can take her judgment and use it so sever the joint tenancy just as she would with a tenancy in common. It just requires the extra step of breaking apart the joint tenancy. In the end, our race car is sold and she will get her judgment from the 80% of the proceeds that are mine.

Tenancy by the entireties is a joint tenancy between a husband and wife. No one else can qualify for this status. Unlike joint tenancy, the only person or entity that can break apart a tenancy by the entireties and sell the asset it owns is someone who has a judgment again both my wife and me. Let us say my current wife and I own the race car. I don’t pay my child support or my taxes. My ex-wife can’t get a judgment against my current wife. She does not owe child support. I do. So she might have a judgment for a million dollars. The law says she can’t get to our race car (new wife and me).

But suppose my current wife and I don’t pay our taxes. We file jointly but we just don’t send the money in. Now the tax authority has a claim against both of us because it is a joint obligation we both owe. They can get a judgment for what is owed and execute on the race car, because the debt, like the car is held as tenant by the entireties. If we filed our taxes separately, the answer is quite different. We don’t owe the taxes joint then, we owe them separately.

Husband and wife own a house. Usually they will have title as tenant by the entireties. Husband leaves wife and runs off to Las Vegas. He signs $100,000 worth of gambling markers and promptly loses all the money. Can the casino come after the house? No. That’s husband’s debt; Not joint debt even though the parties are not legally separated. Suppose wife get s angry at Mr. Gambler and buys a $25,000 ring on her American Express card. Can Amex get to the house? Again, no, unless the credit card is a joint card. Suppose the Amex card is a privilege card; meaning that Husband is the card holder and Wife is an authorized user. Curiously, no. Wife is not legally obligated to American Express unless she signed the agreement with American Express as well. So husband and wife could be back in the house; he with a gambling hangover and she with a beautiful new ring. But neither the casino nor the card issuer can force the sale of the home to get the debt paid.

A question we commonly are asked is whether one party can put the house in jeopardy by taking out a mortgage. The short answer is that where a home is owned as tenants by the entireties, it takes two to make the tango. No bank will issue a mortgage (which is to say lend money) on an entireties house unless BOTH parties sign the mortgage. So what if one party fraudulently signs the other parties name without his or her permission (known in the industry as a windshield signature). That’s not a valid mortgage and the risk ordinarily is taken by the lender. The lender has the duty to take precautions to insure that the signatures are legitimate.

Having fun yet? Here are a couple other wrinkles we see where clients have made trouble they failed to recognize. Many young couples these days like to buy their homes before tying the knot. If they close on the property before the wedding day, they CANNOT take title as tenants by the entireties. Reason: they are not married. And a subsequent marriage does not change the status of the ownership. So, when wife defaults on her student debt or her car loan, the creditor may be able to get to the house and force it to be sold.

A second extra credit problem we are seeing more of. Husband and wife are married. They want a house at the shore. Husband has bad credit. Wife has good credit. The lender does not want anything to do with husband. What they will do is make the loan to wife only.  She will sign the promissory note for $500,000. But they will make both husband and wife sign the mortgage if they want the property to be tenancy by the entireties.  Husband and wife own the property together.  But only she is on the note and can be sued for it.  Should she default, the lender will have the right to take a judgment against her in accordance with the note, but the mortgage says that it is collateral for the note even though husband is not on the note.  Husband does not owe the $500,000 but he pledges whatever interest he had in the shore home to the mortgage company. What we call mortgages are actually two separate transactions done at the same time.  Lenders who give you money make you sign a promissory note to pay it back.  That is itself an “unsecured transaction” because there is nothing to “secure” your promise to pay.  But if the lender demands collateral (such as a house, boat, car, aircraft) the mortgage is a document by which you pledge the asset in what is now a secured transaction (the object is the security).  You don’t need to be on the debt itself to pledge an asset.  If your no good brother in law borrows $50,000 from a bank, they may tell him he must get a guarantor who will pledge assets to secure the debt.  When your bride comes crying to you that her nieces and nephews will be on the street unless the two of you are willing to help, just remember it could be your house that gets sold when brother in law defaults.

          

Now wasn’t that fascinating.  Even we don’t think so.  But this is important stuff to know.

In the past, I have blogged extensively about the legal, medical and value-based decisions made in the case of the unmarried California woman who gave birth to octuplets, while having six other children at home. Enough!

I just returned from an ABA conference in Baltimore regarding the legal aspects of assisted reproductive technology (ART). It was an interesting conference, as I got to meet other lawyers who practice in this area of law. We talked extensively about the issues surrounding egg, sperm and embryo donation. I learned a good deal about the pitfalls that can occur and the many different ways of approaching the problem of infertility, depending upon medical, legal, financial and geographical issues.

The most important fact that I can share is the importance of having experienced people involved in the transaction—both legally and medically. This area of practice keeps growing and becoming more and more sophisticated. There are many people who hold themselves out as experienced, but may not have the level of experience that leads to deep knowledge of the complications that arise. 

If you are looking for assistance, do your homework. Make sure your medical and legal team practice frequently in this area. Interview several potential people before making any decisions. Contact medical practices associated with the teaching hospitals in the area: Temple, University of Pennsylvania/Pennsylvania Hospital, Cooper—to name a few.

While most surrogacy/infertility agencies are legitimate, you should choose an agency with a long and successful history. Use Google or other web-sites to investigate. Several useful sites are: http://www.sart.org/; http://www.asrm.org/;http://www.cdc.gov/ART/. A case in which I represented a surrogate mother and the Estate of her dead child established a legal precedent that agencies are responsible to intended parents and surrogates for negligence in some specific sets of circumstances. Huddleston v. Infertility Center of America , 700 A 2d. 453 (Pa. Super., 1997) provides a guide as to what can go wrong. While such circumstances do not occur regularly, you do not want any problems with your family. Surrogacy or other similar agreements are very complicated. I am happy to provide a consultation to educate you as to the issues will face in these circumstances.

We live in a mobile society.  We also live in a society that experiences a high rate of divorce.  These two facts make for some of the most contentious litigation found in the domestic relations world.  It is the fight over whether one parent, usually the one with primary physical custody, can take a child to another state to reside there on a permanent basis.

When we have children we all form the Currier and Ives image of the happy nuclear household.  The children will grow up in an intact family with the love and respect of both of their loving parents.  But when mom and dad split and mom shortly thereafter announces that she wants to move to Texas to re-up with her former boyfriend the term “nuclear family” takes on a whole new meaning.  It was bad enough that father got dumped.  It was worse that she took most of the assets.  Then there was the child support. And now, topping the cake, is the concept that the children should live 2,000 miles away and see their loving father once a month and four weeks in the summer.

 

Can this happen in 21^st century America?  It does every day.  Part of the reason is that none of the facts recited in the last paragraph really matter a lot.  Custody is not about parental pain.  It is about what is in the childrens’ best interests.  So, how could it be in a child’s best interest to grow up hours away from one parent.  Courts struggle with this issue every day.  And, in so doing, they are not unmindful of how a custody result may be grossly unfair to a parent even though in the child’s best interest.

 

There is a three prong test employed when one parent proposes to move a significant distance from the other parent taking the children with them.  The test comes out of a 1990 Superior Court case called Gruber. v. Gruber. 583 A.2d 434 (1990).

 

Prong 1: What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children? Also is the move the product of a momentary whim on the part of the custodial parent?

 

Prong 2: Does the motivation for the move have integrity and is the reason for opposing the move have a similarly sound basis? and

 

Prong 3: Are there available realistic alternative arrangements for substitute partial custody or visitation and will such arrangements adequately foster an ongoing relationship between the child and the non-custodial parent?

 

The initial burden is upon the party proposing the relocation to show the “advantage” to the parent and child.  Each party has the burden with respect to the second prong addressing integrity for the dispute over relocation.

 

In these cases, past is usually prologue.  A non-custodial parent intimately involved both physically and emotionally in rearing a child presents a major hurdle to that custodial parent who wishes to relocate.  A parent whose involvement has been limited to routine visits and little more may find him or herself in a disadvantaged position.  Courts also examine whether parental conflict over custody issues may make distance an attractive option.  On the other hand there are also cases where a modest level of conflict drives one parent to ask to relocate because “life will be simpler.”  This does not usually make for a successful case.

 

The most common and most nettlesome area of conflict is over the question of whether relocation “will substantially improve the life of the custodial parent and the children.” There is language in the Gruber case that seems to imply that benefit to the custodial parent may be enough even without palpable advantage to the children.  In metropolitan areas with competitive schools and rich cultural resources, it is sometime difficult to persuade a court that there is an advantage to the child associated with the move.

 

In recent years there has been a vast increase in this breed of custody litigation.  There are many issues to consider and many reported cases addressing the issue.  But Gruber stands as the seminal case.  The cases decided in the 1990s tended to focus on the benefit to the parent and permit relocation even though a distinct advantage to the child was not often clear.  But in the past decade, the trend has shifted against relocation with recent cases weighing how the children benefit from the move in ways that differ from the happiness of the custodial parent.  One thing remains clear.  People who have already experienced and angst and heartache of separation and divorce do not respond well to plans intended to permit relocation of their children to distant places.

Since the Kentucky Supreme Court has accepted discretionary review, here is a digest of the Court of Appeals Opinion: LICHTENSTEIN V. BARBANEL CHILD SUPPORT ENFORCEMENT 2007-CA-000509 NOT TO BE PUBLISHED: AFFIRMED PANEL: VANMETER PRESIDING; CLAYTON AND SPECIAL JUDGE KNOPF CONCUR COUNTY: JEFFERSON DATE RENDERED: 8/15/2008 Dad appealed TC?s entry of two income withholding orders, primarily arguing that TC had not resolved child support issue prior to entry of the Orders. FACTS: When Mom and Dad initially separated, Mom had custody of kids and Dad was under order to pay child support. Six years later, Dad was ordered to pay Mom...
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Although our law firm has litigated several of the largest support cases decided in Pennsylvania the matter of how much support children need is one of endless controversy for those who have household net incomes exceeding $20,000 per month. We are often asked to offer second opinions or discuss those cases we have tried.  The fact is that while we have opinions about these larger cases, most of them settle because the range of possible outcomes is so wide even in cases where we believe we understand the approach taken by the judicial officials deciding the law.

Since 1984, Pennsylvania has operated under a Supreme Court ruling in Melzer v. Witsberger,   480 A.2d 991 (Pa. Supreme 1984).  The case created a multi-part formula beginning with an analysis of the income each parent’s available income and then assessing the “reasonable needs” of each parents for his or her own support and graduating to an assessment of the reasonable needs of the child or children in each parent’s household.  Based upon a subjective evaluation of these needs, the court allocates what contributions need to be made from one household to the other to cover the child’s reasonable needs. The process is complicated and rife with opportunity for “judgment” calls. Moreover, most members of the judiciary will candidly admit that a lifetime of common sense experience often leaves them unprepared to decide what is reasonable when wealth is enormous.  Does a one year old need a governess if the primary caretaker is already staying at home.  Does a reasonable vacation expense include first class seats?  Private plane?  747?  While Pennsylvania has not opined on these subjects, other states have had to.

It is rare for high income cases to be reported because they usually settle.  But in January of this year a Schuylkill County case, Rich v. Rich, was decided by the Superior Court based upon their review of a Melzer analysis. 967 A.2d 400 (Pa. Super. 2009)

The case involved support of four children at its beginning.  One was emancipated during the two years of litigation culminating in the final order.  The father was a CEO for several coal and co-generation companies.  Father’s gross income was $9-10 million per annum.  His net worth roughly four times that amount.  Mother was not employed.  Father’s home and contents occupied 150 acres and had an aggregate worth of $2-3 million.  Mother lived in a mortgage free $725,000 home. 

Mother presented expenses of roughly $180,000 a year for the four children.  The trial court accepted these expense and awarded $15,000 a month. Support was not reduced upon the eldest child’s emancipation, the Court finding that other expenses would have risen during the period involved.

Father appealed from the order.  His first complaint is that Ms. Rich failed to document her expenses.  The Rules of Civil Procedure were amended in 2006 to require documentation of expenses in cases decided under Melzer where net income of the family exceeds $20,000 per month Pa.R,C.P. 1910.27(c)(2)(a).  His particular complaint was a $50,000 item budgeted for credit cards charges without supporting data or delineation.  The Superior Court found that Father waived the argument when he agreed that the expenses presented for 2005 were reflective of actual post separation expenditures.

The second basis for the appeal was the trial court’s refusal to reduce support by 25% once the eldest child was emancipated. The appellate court properly noted the law to forbid arithmetic reductions not supported by testimony related to expense savings.  At the same time, it observed that it was also an abuse of discretion to infer that the cost of living increase was equal to the reductions in costs arising from a child’s emancipation.  The case was remanded to the trial court to consider what cost savings would result from the child’s emancipation.

Mother also appealed. T he core of her appeal was that the support was insufficient and she pointed to two cases litigated by Fox Rothschild (on behalf of plaintiff’s) where more support was awarded for children than Mr. Rich was required to pay even though his income was 2-4x greater than the payor spouses in Karp v. Karp, 686 A.2d 1352 (Pa. Super. 1996) and Mascaro v. Mascaro. 803 A.2d 1186 (Pa. Supreme 2002)

The Superior Court easily disposed of this . The support award made by the court was 100% of the budget presented by Ms. Rich even though she claimed that her needs were only 10% of the $15,000 in claimed monthly expenses. Where she pointed to the disparity in accommodations between her $725,000 home and father’s $2-3 million dollar residence, the Court pointed to Colonna v. Colonna, 855 A. 2d 648 (Pa. Supreme, 2004) where the Supreme Court of Pennsylvania held that “case law does not require that all the recreational benefits that the children enjoy when they are with Father must also be provided through support from Father when they are in Mother's custody.  In fact, Mother admitted that the children have continued to attend private schools and summer camps as they did before she established a separate residence.  Our review of the record in relation to Mother's first two issues reveals that the court's conclusions are not in error and no abuse of discretion was committed.”

So, in the 25^th year after Melzer became the law of the Commonwealth, we still do not have an appellate case that thoroughly analyzes what is a “reasonable” expense for a child or even how to allocate things such as auto insurance or propane bills between parent and child.  But we do know that $15,000 is not an abuse of discretion for four children and we are reminded that Mr. Rich’s access to vacation homes while the children are with him does not warrant support adequate to allow Ms. Rich to replicate that lifestyle while with the children.  The case also discusses how to dispose of huge accumulations of credits or arrearages emerging from lengthy proceedings and interim payments. But that will be for another day.

It seems as if, more and more, the classic story (boy meets girl, boy falls in love with girl, boy and girl get married, have a house full of babies and live happily ever after) needs a little help from science. The Center for Disease Control reports that as of 2002 approximately eight percent (8%) of women of reproductive age attended an infertility related medical appointment at some point. Given that there are approximately sixty two million women of reproductive age in the United States, the number who are suffering from infertility is staggering. 

However, as the numbers of individuals with infertility concerns rise, so seemingly do the numbers of treatments available. The real growth in the field of assisted reproductive technology (“ART”) started in the United States in the early 1980’s with In Vitro Fertilization (“IVF”). Since that time, the options available have expanded to include surrogacy, gestational carriers, and a host of medications.

 

With the growth in ART has come a whole host of legal and ethical questions, which many states have failed to definitely or adequately answer. As a simultaneous student of Bioethics and Law at the University of Pennsylvania, I had the unique experience of exploring how the ethical issues of ART intersect with the scant “law” which exists on the topic. While the law is equipped to deal with the usual circumstance of IVF (using the gametes of a husband and wife and implanting any resultant embryos in the wife), once you move beyond that scenario and use donor eggs or donor sperm, a surrogate or a gestational carrier, the waters become more merky. It is imperative that before anyone dives head first into the process, he or she reviews all of the potential legal ramifications with an attorney. 

 

For example, what will become of the embryos you do not use? Many clinics require couples to make this decision up front, but what if an individual changes his or her mind? What if an egg donor changes her mind and no longer wants her fertilized eggs to be used?  What happens if the intended parents separate while a surrogate is pregnant? What if those separated intended parents have no genetic ties to the expected child? Is it more beneficial to use unknown or known donors?  Surrogates?

 

Until recently, it had not been definitively determined whether a sperm donor owed a right of support to any children which resulted from his donation in Pennsylvania. 

 

In another matter, an egg donor, who wanted nothing to do with the ongoing custody dispute between the gestational carrier and the intended parents, was dragged into court, albeit briefly. 

All of these scenarios may require an attorney to represent the individuals involved against the other individuals involved in the realms of custody and support, but may also require representation against the medical professionals and organizations involved. Hospitals may be at a loss as to whom they should release a baby, as to who should be listed as parents on a birth certificate and as to what their responsibilities are in terms of releasing or destroying embryos.

The best way to avoid legal problems when undergoing ART, is to plan ahead and be aware of what legal situations may arise and how to best deal with them.  Cleaning up after the fact, when there is a child in the middle, is never ideal.

Howard v. Howard The issues presented here are whether the trial court was clearly erroneous in its determination that Appellant was voluntarily underemployed, thereby justifying the trial court?s refusal to modify its prior child support order; and whether the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 11 U.S.C. Sections 523(a)(5) and (15), precludes discharge in bankruptcy of Appellant?s obligation to pay for the Dodge Durango automobile as required by the court?s final decree. Digest to follow.
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Kessler v. Switzer, __ S.W.3d __ (Ky. App. 2009); 2008-CA-002083-ME Switzer filed a motion to extend a domestic violence order (DVO) and attached an affidavit stating that she had filed charges against Kessler for violation of the DVO and that she was still in fear of Kessler. When the matter came before the court, Switzer?s counsel informed the court that the charges had been dismissed. Kessler objected to the court ordering the extension without holding a hearing in which Switzer could testify and be cross-examined. He also objected to the extension on the grounds that there was no legal standard...
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HOWARD V. HOWARD CHILD SUPPORT MODIFICATION; DISCHARGE OF MARITAL DEBT IN BANKRUPTCY TO BE PUBLISHED: AFFIRMED PANEL: SENIOR JUDGE LAMBERT PRESIDING; CLAYTON AND THOMPSON CONCUR COUNTY: LAUREL DATE RENDERED: 6/12/2009 Dad appealed TC?s finding that he was voluntarily underemployed and corollary order denying his motion for modification of child support, as well as TC?s finding that Dad was in contempt for his failure to pay a deficiency judgment related to a marital debt. Motion for Modification of Child Support: While parties? divorce was pending, Dad quit federal job, claiming medical grounds, but TC found after trial that Dad was voluntarily...
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Holland v. Holland, digest to follow.
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Holland v. Holland, __ S.W.3d __ (Ky. App. 2009), 2008-CA-002115-ME At the time the parties divorced in 2007, the father was living in Hardin County, Kentucky and the mother was living in Jefferson County, Kentucky. The trial court entered an order outlining various contingencies regarding parenting time and child support. If the father moved to Louisville within ninety days of entry of the court?s order, the parties would share equal parenting time and determine an appropriate child support obligation. If the parties could not agree on child support within 30 days of his relocation, the father could file a motion...
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Prior to marriage, an engagement ring is generally treated as a conditional gift, rather than an absolute gift. In other words, the ring was given conditioned upon the subsequent ceremonial marriage.  Under Roman Law, if the parties jointly decided to call off the engagement, the ring was to be returned to the donor.  If one of the parties unjustifiably called off the engagement, then that person forfeited any rights to the ring. 

This approach has been the prevailing one in the United States, and under this rationale, the donor is not entitled to the return of an engagement ring if he is at fault for calling off the engagement. However, there is a minority rule that utilizes a “no-fault” approach, whereby if the engagement is broken, the ring is returned to the donor – no matter who is at fault. This approach is intended to limit litigation.

Because of the (relatively) small amount of money at stake, however, these cases rarely make it to the highest court in the state. For example, in South Carolina there are no Supreme Court cases on point, so there is still a fair amount of confusion as to which approach to take at the trial level, and it is often difficult to predict the results.

For information about who owns the engagement ring after marriage, see “Who Owns the Engagement Ring? (Part Two)” – to be published later this week.

"Who Owns the Engagement Ring? (Part One)" by Paul C. MacPhail.

Clients have a sixth sense for things that are problematic. Unfortunately, that sense is coupled with a tendency to freeze and avoid talking about the problem. Often times, clients prefer to ignore the problem, or assume that it will solve itself. 

Lawyers fancy themselves as problem solvers and good lawyers have a knack for doing just that. Unless the lawyer knows and understands the problem, however, solutions are not easily found. When a client senses a problem, there are three places where clients tend to move quietly and not tell their attorneys what their plans are: tax returns, home sales, and asset transfers and sales.  As one might expect, the failure to examine these transactions with an attorney can be harmful, or even fatal, to the financial interests of the client.  Let’s take a look:

                Tax returns.   Joint tax returns make for joint liability. Every year by April 15, private taxpayers must file their income tax returns and tax payments for the previous year. For example, the 2008 tax year closed on December 31.  So, tax returns and taxes were due on April 15, 2009. Historically, almost all couples file joint returns because that is what they have done in the past. Also, there are usually tax savings associated with a joint return.  For Americans who are paid wages, there are not many options in terms of tax avoidance.  Where one or both of the taxpayers are self-employed, however, there is room for mischief. Unfortunately, clients tend to assume that tax fraud is something that affects the other “self employed” guy, and that nothing bad will ever happen to them. As a result, every year clients end up signing joint income tax returns without realizing that if the return “blows up” and is challenged by the IRS, any resulting liability is what attorneys call joint and several.  That means if your spouse puts false numbers on the return, the tax law says that, with few exceptions, you agree that your assets can be seized to pay the tax and penalties arising from the matter.  The fact that you are separated is not itself and impediment to collection efforts by the IRS. The classic case is Duff v. Duff, 510 Pa. 251 (Pa. Supreme 1986).  Although there are ways to try to address this problem, the starting point is to realize that joint returns make for joint legal responsibility. Your oath that the return is accurate extends beyond your own income to that of the spouse with whom you file.

                Home Sales.   If husband and wife own a home as joint tenants or tenants in common, neither can sell the property without the consent of the other.  In order to sell the property, the co-owner must join in the deed to convey a clear title to property.  So, when we are asked whether a spouse can sell a house out from under the other, the answer is no, unless the house is held in the name alone of the spouse having title.  That’s good news.  But, it is fairly common for a separated husband and wife to agree that they want to sell their joint property.  They sign the listing agreement together and the broker/agent attempts to sell the property. Let’s say, for example, a couple lists for $400,000 and they receive and offer of $375,000, which they find attractive.  Again, the tendency is to not solicit legal advice. So, they agree to take the $375,000 and they sign the agreement of sale tendered by the prospective buyers. This is major because they are now “under agreement.” Although these agreements usually contain conditions allowing for an “out” by the buyer e.g., home inspection, mortgage contingency), they rarely allow the seller to back out.  Once the agreement is signed, the sellers are legally bound to convey title at settlement upon tender of the contract price.  This is a good thing, right?  Yes and no.  Without further agreement between the sellers, the title agent will issue the proceeds in a single check that mirrors the title to the property. This means that neither party will have access to the proceeds from the sale unless there is an agreement. If you are planning on using these proceeds to acquire a substitute residence, you may find that you have no access to the funds until you “agree” with your spouse on a distribution or the court otherwise decides your case. Without an agreement, the proceeds will be left in escrow until there is an agreement or court order disposing of the same.

                Assets Transfers and Sales. The law seems clear that unless a court order prevents an individual from selling or moving assets from an individual account, each spouse can buy, sell or transfer assets as he or she pleases.  We find that clients tend avail themselves of these powers.  This is not bad in and of itself.  Clients, however, tend to ignore the fact that each time sales and transfers are effected, there is a likelihood that the spouse not in possession of the account will want to “trace” each transaction or transfer in order to insure that no proceeds were skimmed from the transaction.  This process requires expensive accounting, which tends to consume time and money, as well as slow down the divorce process.

                If you are signing legal documents of any substance while going through a separation or divorce, let your attorney know.  If you are signing a document with your spouse from whom you are separated, it is imperative that you understand the legal consequences before you sign.  As a rule, assume that you cannot “undo” a document once you have signed it.  

We are commonly asked how long child support lasts in Pennsylvania. This is a relatively easy question to answer but one with both a history and some varying results.  By statute and case law, the duty to support a child ends when the child has reached age 18 or graduated from high school, whichever comes later. 23 Pa. 4327 et seq.; Blue v. Blue, 616 A.2d 628 (Pa. Supreme 1992).

The history of this responsibility has some interesting twists.  Beginning in 1963, the Pennsylvania Superior Court embarked upon a series of decisions finding that, in certain cases, parents could be held responsible for the support of adult children attending college. Com ex. Rel. Ulmer v. Sommerville.  For the next three decades this law evolved in a variety of ways within the Superior Court.  In 1992, however, in Blue v. Blue the Pennsylvania Supreme Court challenged the very principle that the Superior Court had such power.  The Supreme Court ruled that the Superior Court was without legal authority to direct parents to contribute to pay post majority support except in circumstances where the child was incapable of supporting him or herself through employment.

The Blue case sent a shock through the judicial system, as tens of thousands of children were already getting support while in college.  In response, the General Assembly passed a bill expressly conferring upon courts the power to direct payment of post secondary educational expenses where the parents were separated or divorced.  In 1994, the Supreme Court of Pennsylvania challenged the bill and held that to discriminate between children of intact families in contrast to separated families was a violation of equal protection.  Therefore, the court found that the statute was unconstitutional and deemed it ineffective.  Curtis v. Kline, 666 A.2d 265 (1995)

So, once again, a child who entered college in 1992 with a college support order found himself stripped of any entitlement to college support.  Interestingly, Curtis v. Kline remains the law of the Commonwealth even though the statute books still contain 23 Pa. C.S. 4327 stating otherwise.

Parents may still contract to provide for post secondary support as part of their divorce and those agreement are enforceable. Where the support order requires payment through the judicial mechanism of Domestic Relations, however, support is supposed to terminate at age 18 unless the child continues to be enrolled in high school and is pursuing a diploma.  In recent years, the courts have become adept at terminating these orders, commonly sending notices to custodial parents of the intention to terminate an order on a child’s eighteenth birthday unless the custodial parents responds that the child is still in high school.  Despite the courts’ action in recent years, it is not wise to rely upon the courts to address this question. Parents should be aware that, until an order is entered terminating the support, the wage attachment will continue to be collected.  And, if the support is collected and disbursed, woe to the payor who asks the Domestic Relations Section to get that money back.  Typically, the payor is told to sue the payee in small claims court for the overpayment.  This is usually not a happy result.

If you have the good fortune to be the parent of a graduating student and there is ANY question of whether the order is terminating, file a petition to terminate and ask for a conference or hearing.  If the order is administratively terminated by the judicial system, your hearing may become unnecessary. Even if you made a contractual agreement to pay support after emancipation, those payments should not be made through the court or wage attached.

If you have a child who lives with you and cannot otherwise support himself or herself, then you, as the parent, have the burden of establishing the child’s dependence if you want support to continue. Com. Ex rel. Magaziner. V Magaziner, 419 A.2d 149 (Pa. Superior. 1980); Brown v. Brown, 471 A.2d 1168 (Pa. Super. 1984).  Support granted should be in accordance with the guidelines, but there is a likelihood that you will be asked what state or federal disability resources you have available to help support the child.  Also, bear in mind that any support petition you bring for an adult child must have the child’s written consent.

When spouses get divorced, they usually end their relationship with their former in-laws.  However, if there are children involved, it is not always easy (or advisable) to do so.  Under normal circumstances, children benefit from relationships with both sides of their family.  So what's the best way to go about encouraging and fostering their relationship with your former spouse's family? Consider the following suggestions:

Maintaining contact creates stability, and grandparents and other family members can help provide emotional support and the sense of belonging to children after a divorce.

Although the grandparents may have taken your spouse's side during the divorce and you may be angry, remember it isn’t about you – it is about your children.

When your children see they are still allowed to attend functions with both sides of their family, they will realize that although some things have changed, not everything has.

Remember that the bond between grandparents and their grandchildren is special, and your children need the love and warmth their grandparents offer.

Even if you can’t stand being around your in-laws, don’t cut them down in front of your children.

Grandparents can give you a break from time to time, by keeping the children for a weekend or maybe even taking them on a little vacation.

Grandparents may even be able to help a little financial help by taking the kids shopping for school clothes or treating them to a movie or lunch.

Source:  "Single-Parenting Challenge: Dealing with Former In-Laws" published at Dummies.com.

 

After he gained national headlines by being "missing" for five days, South Carolina Governor Mark Sanford reappeared today and admitted at a press conference that he's been having an affair with an Argentinan woman for about a year.  As part of his statement given at a press conference, Gov. Sanford admitted "I have been unfaithful to my wife," and he said that his wife has been aware of the affair for the last five months.

Gov. Sanford announced that he is resigning as Chair of the the Republican Governors Association, but it is unclear at this time whether he intends to resign as the Governor of South Carolina.  When asked that question at the news conference, he walked away from the podium without answering.  Also, he may face an investigation, as it appears that he willfully misled his staff, Lieutenant Governor Andre Bauer, and the citizens of South Carolina about his whereabouts.

My thoughts are with Mrs. Sanford and the Sanford children as they deal with these difficult issues in a very public forum.  You can read more about this developing story by clicking the "Continue Reading" link below.

Additional press coverage can be found at the following sources:

New York Times

Washington Post

Los Angeles Times

Miami Herald

National Public Radio (NPR)

ABC News

United Press International (UPI)

Spartanburg Herald-Journal

The State (Columbia, SC)

Earlier this week, we examined the issue of who owns the engagement ring prior to marriage if an engagement is broken. In this second part, we look at the issue of who owns the engagement ring after marriage, if the marriage is later dissolved.

In South Carolina, “marital” property can be allocated or divided by the Family Court. “Non-marital” property cannot be allocated by the Family Court, and it therefore belongs to the spouse independent of the marital estate.

By statute, South Carolina has defined non-marital property as “property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse.”  Thus, a gift from a third party is non-marital, but a gift from a spouse is marital. So where do engagement rings fall under this analysis?

As previously discussed, most courts appear to view an engagement ring as a conditional gift that becomes final when the marriage is consummated. This would appear to make the gift irrevocable exactly at the moment when a non-spouse is becoming a spouse.

In South Carolina, the courts have decided that an engagement ring, at least one given prior to the wedding ceremony, is a pre-marital gift, and therefore is non-marital property belonging to the recipient of the ring upon dissolution of the marriage.

For further reference, see S.C. Code 20-3-630(A)(1) and McClerin v. McClerin, 310 S.C. 99, 425 S.E.2d 476 (Ct. App. 1992).

"Who Owns the Engagement Ring? (Part Two)" by Paul C. MacPhail.

New York state Husband and Wife have four children together. Husband sustained a brain injury in a car accident several years ago and has a “mental health history”. Wife files for divorce and child custody. Husband allegedly stabs Son in the chest during a “domestic incident” at home. Husband is charged with attempted murder of Son. Husband is incarcerated pending [...]

Consciously or unconsciouly, one or both parents in divorce sometimes draw their children into the following roles: Spy on the Other Parent Side-Taker against the Other Parent Messengers to the Other Parent Partner or Confidante Household Finances Stretcher Teenager Peer Spoiled as Compensation Pawns in Visitation and Custody Battles Captive Audience to Disparagement of Other Parent Tool Wielded to Manipulate or Control the Other Parent [...]

Husband and Wife married twenty-seven years. Husband, former CEO of corporation, convicted of accounting fraud. Husband ordered to pay over $3 billion as restitution. Divorce filed. Uncontested. In divorce settlement, Husband sells home to Wife for $10. Prosecutors seek to intervene, contending that Husband bought assets using fraudulently procured funds and Husband should not be able to shield them [...]

Lawyers USA featured an article late last week about the types of information that can be found in social networking sites, such as Twitter, Facebook, LinkedIn.  The article correctly states that these sites have opened up a potential treasure trove of legal evidence, especially in divorce cases where a person’s whereabouts, “friends” and employment status are often relevant.

Lee Rosen, Melissa Brown, and I were all quoted in this article about the ways that family law attorneys are effectively using these sources of information on their client's behalf – and also the ways that other attorneys are not.  If you are facing a divorce or child custody case, or if you are an attorney who handles these types of cases, you should read this article. 

My quotes are listed below:

“In divorce or child custody cases, what we look for is confessions - things they’ve done, places they’ve been [and] people they’ve had their child around,” said J. Benjamin Stevens of Stevens - MacPhail in Spartanburg, S.C.

For example, a parent who is restrained from taking a child out-of-state might post photos of visiting Disney World or other vacation destinations with the child.

Or, in a custody case that Stevens handled, a father denied drug use but the background of his MySpace page featured marijuana leaves.

A person’s LinkedIn profile can contain evidence of earning capacity or job prospects that can be useful in disputes over support payments.

Source: "Divorce Attorneys Are Missing Evidence on Social Media Sites" by Sylvia Hsieh, published at Lawyers USA.

Financial columnists recommend the less than romantic activity of reviewing each other’s credit reports before tying the knot again. Overlooked or forgotten accounts with an ex-spouse can rear their ugly heads even after a divorce. Times two can make for a double whammy. Before the marriage is the time to address these [...]

I was in a settlement conference recently in which the husband's attorney tried to argue that his client's adultery "was really o.k " because my client had suffered from depression and therefore wasn't a great wife.  Of course, I pointed out that was baloney and reminded him of the actual defenses to adultery.  However, his argument begged the question of whether cheating is ever justified or deserved.

CNN.com recently published an article on this very subject, citing to such well-publicized adultery allegations as those against John Edwards and Jon Gosselin.  At the time that article was published, news of South Carolina Governor Mark Sanford's affair had not yet broken. 

The article questions whether the conduct rendered by "bad spouses" justify the "innocent spouse" seeking romantic companionship elsewhere.  It concludes "cheating isn't right, but neither is emotional abuse and neglect."  What do you think -- is cheating ever justified?  Submit your comments below.

Source:  "Is Cheating Ever Deserved?" by Wendy Alterberry, published at CNN.com.

Turkish Man living in France seeks to marry and bring a Turkish Woman to live with him in France. Only that particular Woman had been accepted to college and has her heart set on attending. So the Man promises the Woman that she will be able to go to university after the marriage. So the Woman [...]

If you are interested in hearing my interview from the South Carolina Business Review about the effect the economic downturn has on families, you can CLICK HERE. 

This interview was broacast on eight NPR radio stations across South Carolina on June 18, 2009.  Thanks again to Mike Switzer for having me as a guest on his show.

In the criminal courts, the defendant can insist on speedy justice. Not so the litigants in family court, which often operates in a virtual time warp. Husband and Wife live in North Carolina. They have two children. Wife files for divorce. North Carolina Court grants permission for Wife to relocate to Rhode Island, but allows for visitation by [...]

I have published several articles recently on the subject of cheating, affairs, and marital infidelity.  I recently found the following list of "tell-tale signs" that your significant other is cheating on you.  The list is written with the idea that the male is the cheater, but of course the logic applies in both directions:

He won't let you see his social media sites.  Why won't he accept your "friend request" or let you see his/her Facebook, MySpace, LinkedIn, Twitter, etc. page?

He only wants to go to new or different places with you, instead of going places that his friends and colleagues are.  Is he afraid to bump into someone that knows what's going on?

He doesn't seem to have any friend of the opposite sex.  The article says that if no woman is willing to vouch for your man, then it may be a red flag.

He never answers the phone when you call.  You might receive calls, texts, etc. from him, but if he never answers your calls, it could be due to his being with someone else.

He only wants to see you at odd hours and/or frequently cancels dates at the last minute. 

You never go back to his place – ever.

He has things in his home that seem out of place.  For instance, does he have things that seem to be more feminine? Have you seen  pictures of another woman or maybe feminine hygiene products?

Source:  "Nine Signs He’s A Cheater" by Simcha Whitehill, published at The Frisky.

Stipp v. St. Charles, re venue, division of marital property, maintenance. Digest to follow.
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Husband and Wife divorce. Husband used to work for large software company. Husband’s financial disclosure in divorce reveals two large payments and anticipates a further large payment from a so-called hedge fund. Wife seeks a share of such monies. Husband impliedly disputes her right. Further complication … The Securities and Exchange Commission (SEC) reportedly previously investigated suspicions of insider [...]

Family law attorneys have to have thick skins.  Think about it – in virtually every case, one of the parties doesn't like you very much.  In contested cases, it can sometimes reach the level of hatred.  Recall that I was called "the devil" by a party in open court several years ago.  However, in light of what has happened to Randall Kessler, I don't feel too bad.

In case you aren't familiar with Mr. Kessler, he is a very well-known family law attorney in Atlanta, Georgia, and he is generally regarded as an outstanding lawyer.  Unfortunately, one of his celebrity divorce clients recently posted the following to her 19,305 followers on Twitter:  "My lawyer = horrible. Need the name/number of a good one in Atlanta."

What makes this even worse is that the tweet was sent just days after Mr. Kessler publicly praised his client as a "faithful wife and loving mother.  The client claims that she did not intend for the tweet to be read by all of her followers, and she later posted a comment on her page with an apology.  When asked whether he still represents this particular client, Mr. Kessler (to his credit) responded "we represent her, and will not comment on attorney-client relationship beyond that,"

The moral to this story is that you should not write (or especially post online) anything that you would not feel comfortable being read in open Court in front of the trial judge.  Folliwing this "common sense" rule should minimize the chances of embarrassing yourself or even damaging your case.

Sources:  "Client Trashes Her Celebrity Lawyer on Twitter" by Molly McDonough, published at  ABA Journal.comLaw News Now; and "Client Dumps Divorce Lawyer on Twitter" by Carolyn Elefant, published at the Law.comLegal Blog Watch.

South Carolina Man and Woman live together. Woman has a Son. Man acts like any good father would toward Son. Drives him to school. Roots for him at his ball games. Attends parent-teacher conferences. Etc., etc. One thing is missing … A paternity test does not bear out a biological connection between Man and [...]

Husband and Wife have one child together, Son. In 1997, Husband, a police officer at the time, allegedly shot Wife in the hand while they were arguing. In 2001, Wife obtained an injunction for protection against domestic violence, or order of protection, against Husband. Wife alleged that Husband dragged her by her legs, down stairs and [...]

Time.com recently published a list of Five Facebook No-No's for Divorcing Couples.  I have seen all of these in my practice at one time or another.  If you are divorcing, please consider not doing the following (before it's too late):

Showing Off :: Pictures or discussions of new purchases or vacations are fun, but they might color the court's view of your finances and affect your settlement.

Letting It All Hang Out :: If you're in a custody battle, your ex's lawyers would love to present you as the nonnurturing type. Delete all the crazy party photos.

Getting Tagged :: It's not just your page you have to worry about. Make sure your friends' photos of you can't be used against you either.

Venting :: Don't talk smack about the lawyers, the judge and especially your spouse — on your page or anybody else's. (You think your kids never use a computer?)

Cutting Off Everyone at Once :: Don't "defriend" in-laws or your ex's friends right away. People need time to adjust. Unless it's really high-conflict. Then go for it.

The Rosen Law Firm in North Carolina has many great resources on its website.  One of the best is "A Teen Guide to Divorce, Surviving Your Parent's Divorce", a free E-Book that helps teens sort through the issues that they often face in these situations.  

This 24 page E-Book addresses the following topics:

Background Facts About Divorce and Custody

Common Reactions to Divorce

Mistakes Your Parents Make

How To Talk To Your Parents

Examples / Stories from Several Teens

Other Resources

I have read this e-book, and I highly recommend it.  You can download your free copy of "A Teen Guide to Divorce, Surviving Your Parent's Divorce" by clicking HERE.

Arizona Mother has sole custody of nine year old Son. Father takes Son for a week of visitation as per court order. In the past, Father has taken Son to Hawaii, a place that Father has said he would like to live. At the end of the permitted weeklong visitation, Father and Son fail to return … even [...]

I am pleased to bring you the exclusive online presentation of "Empowering Parents" by Rev. Dr. Trey Kuhne, LMFT.  I will publish this seven part series over the next several Wednesdays, and I hope that it is helpful to you.  I want to thank Dr. Kuhne for allowing me to once again present his series to you on my blog.  Here is Part One:

The Great Competition: Mom and Dad versus The Children!

I cannot tell you how many times I meet with parents who are struggling with the management of their children. Whether young, middle, or teen-aged, it seems as if in today’s family the child has more authority and power in the daily life of the family than the parents do.  There are a number of factors which contribute to this phenomenon:

One is the ongoing development of technology and communications. Kids are connected in a way their parents were/are not and with connection comes empowerment.

Secondly, with both parents working, the kids are given more authority at younger ages to care for themselves.

A third and common reason is that parents assume that children have what they need academically, socially, spiritually, and psychologically and thus do not provide adequately for their children’s needs in these areas.

A fourth reason is that parents lose scope of their roles as parents and become disengaged to their responsibilities to age 18 and beyond.

Additionally, it appears that in the competitive struggle for authority that the children are winning!

In the 21st century it is more difficult to be an engaged, intentional, role defined parent than in just about any other time in history. There are more competitions to children today than in the past. Technology and communications have brought the world to the very fingertips of your children. Cell phones, text-messaging, email, online video gaming, MySpace, Facebook, YouTube, and chat rooms have replaced the CB and Ham radios that once kept us connected just a few short years ago. Communication is more intense, personal, and intimate that it has ever been and at the same time it is also vulgar, rude, shallow, and fantastical – it has lost meaning and purpose in the midst of a society that craves relationship.

As parents, you are well aware that there is no manual or book that spells out in detail the how- to’s of good parenting. The Bible does properly inform us but it, too, is not a step by step manual. Our only models were our parents (if they were good parents) and perhaps those we watched around us in our families. It is difficult to be a really good parent today. You need more support, more encouragement, and more resources in order to do your calling with efficacy, provision, and joy. It is supposed to be fun and it is supposed to be fulfilling and yet many parents just want to either upgrade their children to version 2.0 or quit. Unfortunately, many do just that. Divorces are at an all time high, some due in part because parents let their children’s needs overtake the needs of the marital relationship.

In this new series, I will address a few of the issues I have commonly seen in my practice in working with families struggling to regain a sense of operational management of the family system. If you have any ideas or struggles you want to share I would welcome them. Send them to: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and as always, I welcome your feedback.

Grace and Peace,
Dr. Trey Kuhne

Dr. Trey Kuhne is a pastoral counselor and licensed marriage and family therapist with Pathways Pastoral Counseling located at St. Christopher’s Episcopal Church, 400 Dupre Drive, Spartanburg, SC 29307. He specializes in working with individuals, couples and families. Call (864) 542-3019 for an appointment. He may be reach via email at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

The Family Law Prof blog reports on an extremely messy case involving dramatically differing stories from the parties and the intersection of four separate statutory provisions governing paternity, the California Court of Appeals held that a voluntary acknowledgment of paternity trumped the presumption created by holding oneself out as a father.While she was pregnant and for a time after the child was born, Mother lived with the petitioner, a man (who happened to be a family law attorney) .? Though he knew he was not the biological father, the petitioner held out the child as his own.? This established petitioner as a presumptive father under the Uniform Parentage Act.? The biological father, as determined by a private pre-birth DNA test, had filed a voluntary acknowledgement of paternity, but, because he had another family, had not publicly acknowledged the child as his own.? The voluntary acknowlegment established the biological father's paternity under the voluntary declaration of paternity act, which states that a volunatry acknowlegment is the equivalent of a judgment of paternity. Thus the court was left with the question, "Does a man's voluntary declaration of paternity?if properly signed and filed after 1996 and never rescinded or set aside?rebut a rebuttable presumption of paternity under [the UPA]?"? The lower court had held both presumptions equal and had found that petitioner's actions outweighed the presumption favoring biological father.? The court of appeals reversed, holding that California's statute clearly establishes that a properly executed and filed voluntary acknowlegment of paternity has the effect of a judment of paternity and that the statute limits judicial discretion to set aside this judgment.? Given that that UPA states that a judgment of paternity outweighs the presumption of paternity created by holding out oneself as a father, the trial court erred in weighing the two presumptions equally.? Rather, the biological father's paternity should have been treated as conclusively presumed.The case presents a fairly rich description on the competing versions of Mother and petitioner and would make a fine starting point for crafting a problem on competing presumptions.Kevin Q. v. Lauren W., (Calif. App. 4th Dist. June 19, 2009)Click here for the original article from Family Law Prof BlogOpinion onlinePlease be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Mentally disabled young Woman lives with her Mother. Twenty year old Man pursues “relationship” with Woman. Mother seeks and obtains an order of protection against Man for benefit of Woman. That reportedly does not stop Man. After being served with the domestic violence restraining order, Man allegedly lures Woman to his parents’ home and sexually assaults her. He also reportedly [...]

To get married in the State of South Carolina, you need to obtain a marriage license. The following requirements apply to both residents and non-residents:

The bride and groom must appear together at the office of a South Carolina county probate judge and file a written application. This application asks for the full name, social security number, age, and place of residence of the bride and the groom. It is a sworn statement that must be signed by the bride and the groom and then notarized in the office of the probate judge.

Some probate judges require both the bride and groom to show their social security cards.

There is a waiting period after the application is filed before the license can be picked up and the marriage can take place. This waiting period varies from county to county, so please contact the appropriate county probate judge at least a week before you plan to get married.

If you are 18 years old or older, you do not need parental consent. But you must provide proof of your age (or simply identification if you're over age 25) by presenting one of the following:

Valid driver's license

Original birth certificate or a certified copy of your birth certificate

Current military identification card

Current passport

If you are under the age of 18, parental consent can be granted for boys and girls who are at least 16 years old. All minor applicants must file an original birth certificate or a certified copy of their birth certificate, which becomes a part of their permanent application record. The parent or legal guardian of a minor applicant must appear at the same time as the minor to present identification and sign a form consenting to the marriage.

No blood test or physical exam is required.

South Carolina residency is not required.

No proof of divorce is required.

The fee for a marriage license varies from county to county.

Additional Information

A South Carolina marriage license is valid only for marriages performed in South Carolina.

There is no expiration date for a South Carolina marriage license.

South Carolina laws concerning marriage and marriage licenses

Source: "South Carolina – How to Apply for a Marriage License", published as part of SCIway.net's "Guide to Planning Your South Carolina Wedding"

Part of what makes the law fascinating is that there are certain legal issues that have no clear solutions. In many cases, both sides have equal merit. The matter of whether incarceration should reduce or eliminate a support obligation is one such question.

The Supreme Court of Pennsylvania ruled on this question in Yerkes v. Yerkes, 824 A.2d 1169 (Pa. Supreme 2003). In Yerkes, the court found that criminal conduct was a volitional act and that where one acts in a way that results in incarceration, that person should not be able to use his crime as a basis to avoid a support obligation.

Even though the Supreme Court is the state’s highest judicial authority, the controversy has not ended. In 2000, Melissa Plunkard gave birth to a child by John McConnell. She sought and obtained an order of $275 a month in child support. In 2003, Mr. McConnell was convicted of a crime and sentenced to 6-12 years. In February 2007, Mr. McConnell filed to terminate his support obligation premised upon the fact that his incarceration prevented his earning income. He also sought the elimination of support arrearages that had begun to accrue before his incarceration and continued after he was confined in prison. Under Yerkes, the law would have been clear. But, in 2006 the Supreme Court issued a Rule of Civil Procedure (1910.19) that gave courts the authority to modify or suspend support orders where it was found that the person owing the support had no income or ability to pay and that this condition would continue for the foreseeable future.

So what happened to Yerkes and the principles it espoused? In a word, it fell victim to federal laws regulating federal subsidies. As welfare costs skyrocketed in the 1970s and 1980s, the US government decided to get involved in the collection of child support. Beginning in 1984, the US government began to issue regulations to states. The regulations essentially dictated how state child support systems would operate. If the state failed to comply, federal welfare subsidies to the state would be reduced or eliminated.

To encourage states to collect child support, the system is now rigged with incentives for collection and disincentives for states that have large pools of unpaid support arrearages. Needless to say, from 2003 forward, Mr. McConnell’s support account was an expanding pool of unpaid child support. This caused problems for the state when McConnell’s arrearages, and those of the thousands of other Pennsylvania inmates, came under federal scrutiny. It was not enough to tell the US Department of Health and Human Services that these sums were presently uncollectible. Instead they had to be “written off”. Thus, in 2006 Pa. Rule of Civil Procedure 1910.19 was born and the principle of Yerkes (even parents in jail owe support to their children) was subordinated to the demands of the federal bureaucracy.

But wait. At the insistence of the federal government, Pennsylvania had passed another statute that would have “trumped” the 2006 rule in part. Mr. McConnell was jailed in 2003. He did not seek modification until 2007. The Support Law, 23 Pa. C.S. A. 4352(a) states that except where a child is emancipated, there can be no retroactive modification of arrears. The exceptions to this rule are very narrow. They include a physical or mental inability of the petitioner to file the petition; misrepresentation (e.g., failure to disclose facts required to the other party) or other compelling reason. The statute further says that the party seeking retroactive modification must act promptly once the disability is removed or the misrepresentation discovered.

In the McConnell decision, the Superior Court applied several different approaches. The arrears that accrued before McConnell was incarcerated were not remitted, even though it seems clear that he has no present ability to pay them. And even though the Court expressly finds that Father showed no compelling reason for his failure to seek the termination when first incarcerated, it remitted the arrears anyway. The premise for this decision appears to be the fact that the rule allowing termination was issued by the Supreme Court in May, 2006. How the Court had authority to vacate arrearages that accrued before the Supreme Court rule was changed is a question still lingering in this writer’s mind.

The appellate court also emphasizes a part of the 2006 rule that states that these orders are without prejudice. What does that mean in the real world? Can they later be reinstated and, if so, on what basis? All of this remains to be seen. In the meantime, if you find yourself encountering a petition of the kind Ms. Plunkard did, we would probably recommend that you promptly convert all existing arrearages to a judgment recorded with the Prothonotary.

Family law is often narrowly viewed as issues affecting custody, support and divorce. Many families, however, also find themselves in Pennsylvania’s Orphans’ Court grappling with issues concerning adoption and incapacitated persons.

We live in an age when medicine often allows the body to last longer than the brain. Dementia and Alzheimer’s disease is a part of life for many families and it can make for a difficult time. Pennsylvania has adopted a flexible approach toward incapacity. The PA approach is based on the concept that elderly citizens may need help doing some things but not others.

The recent Bucks County ruling, Collins Estate, illustrates the PA model. 82 Bucks Co. L.R. 404 (June, 2009). In August of 2007, the children of David Collins saw their father starting to fail mentally. One child filed a petition to have a guardian appointed of his person (to make decisions affecting his welfare) and of his estate (to manage his assets). At a preliminary hearing in September of 2007, five of his children testified in favor of the appointment of their sibling because their father was becoming forgetful about his personal needs and his financial affairs. Mr. Collins sat quietly through the proceedings. When the Court issued temporary orders for an independent evaluation by a psychologist, however, he appealed to the Superior Court. This appeal was quashed because the proceedings were not complete.

Mr. Collins also resisted the evaluation. He retained a lawyer and demanded a jury trial on the issue of whether a permanent guardian should be appointed. The trial took five days and included testimony by Mr. Collins, his children and by the psychologist who found that he suffered from dementia. The jury found Mr. Collins incapacitated. Incapacity having been found, the Court structured an order seeking to balance the need for supervision against the rights we expect to enjoy to the use of our property. The daughter who had brought the petition was appointed guardian of the person of Mr. Collins. He had asked that his lawyer be given that task.

Mr. Collins was found to have difficulty attending to his day to day finances, his personal care and his medical needs. His daughter’s appointment provided that these decisions were to be made in consultation with her father but with the clear directive that she could rule on these matters if her father’s wishes did not comport with his welfare.

Mr. Collin’s estate consisted of roughly $250,000 in bank deposits and $1.85 million in investment accounts at Boening & Scattergood. The daughter was empowered to manage the bank deposits to manage his needs but Mr. Collins was left in charge of the investment account because he seemed to have some familiarity with the funds and how they should be invested. The Court also saw that he had a longstanding and trusting relationship with his broker. Because the funds were conservatively invested, the broker would know if Mr. Collins would begin to act in ways that seemed inconsistent with his history of managing his wealth.

Mr. Collins appealed the final decree imposing these limitations and challenging the constitutionality of the statute. 20 Pa. C. S. 5501 et seq. He also asserted that the Court exceeded its authority in conducting an inquiry into the nature and extent of his wealth. As this decree is now final, this ruling will be evaluated by the Superior Court.

The statute defines an incapacitated person as one whose ability to receive and evaluate information as well as to communicate decisions effectively is impaired to an extent that renders him unable to manage financial resources or meet essential requirements of health and safety. 20 Pa. C.S. 5501 Once this level of impairment is found a guardian is appointed. Consideration may be given to the preference of the person for whom the guardian has been appointed. But the court may overrule the request of the subject in favor of someone it believes will perform the tasks of guardian and who has no clear conflict of interest. 20 Pa. C.S. 5511(f). In Collins, the Court determined that the daughter who brought the petition was already serving in a similar capacity for her mother and that her siblings approved of her performance. On the other hand, it saw the appointment of Mr. Collin’s attorney as guardian to be potentially divisive.

This case offers a good illustration of how the statute works and the flexibility it can provide where the incapacity is partial. These are difficult cases as many aging parents either cannot sense that their mental abilities are slipping or they are resistant to giving up control of certain aspects of daily life. The litigation can also breed family conflict as children will sometimes disagree on what should occur or side with a parent because they believe it may offer them advantage when the parent does his or her estate planning. These are challenging questions and make for complex and protracted litigation because there is no “bright line” test for mental acuity.

Tennessee has gone one better on a trend toward protecting custodial and visitation rights of parents deployed in the military. Under a brand new law, a parent deployed for at least ninety days can assign his or her visitation rights to a relative, subject to the court’s authority to veto the surrogate’s visitation if it is [...]

As you probably know from reading my blogs, my law practice leverages technology both to help our current and potential clients and also to market our services.  Along those lines, I want to thank the ABA Section of Family Law for mentioning me in its May 2009 E-Newsletter, as follows:

During a recent interview family lawyer and Mac user Ben Stevens of South Carolina advocates "three C's (commitment, content, and consistency) for the blog to be a success."

If your firm doesn't currently use a blog, it may be missing a great opportunity to distinguish itself from its competitors.  I have been blogging for over four years, and my blogs have led to me being asked for interviews, articles, and presentations on both the state and national level. 

Two of the leading blog providers are LexBlog and G2 Web Media.  I know the owners of both companies personally, and I have no hesitation in recommending either of them to attorneys that are interested in blogging.

Seven year old boy (Son) lives with his Grandmother in Alabama. Massachusetts biological Father wants visitation with Son. Father goes to court seeking visitation. Father reportedly wants to build a relationship with Son. It is unclear whether a court ever grants visitation or any custodial rights to Father. But Father apparently convinces Grandmother that it has. Father has Son with him [...]

Maryland recently added a second facility for children in foster care to have visitation with their biological parents and siblings - under supervision of social workers. The facility is actually a house, minus televisions, computers and similar modern distractions found in most homes. Visitation in this home-like setting aids in the assessment and facilitation of interactions to [...]

Although not unique in this respect, Los Angelenos recognize that too many deaths of children from abandonment, abuse or neglect could have been - but weren’t - avoided, as a result of lack of communication between agencies. Now, county officials are finally calling for sharing of information between county agencies, including potential red flags in criminal, [...]

The recently retired Chief Justice of the Georgia Supreme Court, Leah Ward Sears, wrote a compelling article for CNN.com in which she called for the end of "disposable marriage."  Her brother committed suicide, and she suspected that his bitter divorce at least partially contributed to it.  Some of key quotes from her commentary are listed below, but I highly recommend that everyone read the whole article:

"As a judge I have long held a front row seat to the wreckage left behind by our culture of disposable marriage and casual divorce ...."

"But no-fault divorce's broad acceptance as an unquestioned social good helped usher in an era that fundamentally altered the seriousness with which marriage is viewed. It effectively ended marriage as a legal contract since either party can terminate it, with or without cause. This leaves many people struggling to remake their lives after painful divorces that they do not want. It also left many parents cut off from, or sidelined in, the lives of the children they love."

"Of course, there are occasions when divorce is necessary. And not everyone should marry. But it has become too easy for people to walk away from their families and commitments without a real regard for the gravity of their decision and the consequences for other people, particularly children."

Source:  "Commentary: Let's End Disposable Marriage" by Leah Ward Sears, published at CNN.com.

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STIPP V. CHARLES TO BE PUBLISHED: AFFIRMED PANEL: ACREE PRESIDING; NICKELL AND KNOPF CONCUR COUNTY: JEFFERSON DATE RENDERED: 7/2/2009 Ex-Husband appealed TC?s order finding that he waived his objection to improper venue and dividing marital assets and awarding maintenance, claiming error. FACTS: The parties separated after 20 years of marriage. They had one teenage child. At the time of separation, the parties resided in Oldham County near the Jefferson County line. The most Ex-Husband earned in one year was about $35,000, while Ex-Wife was earning $235,000 at the time of separation in addition to receiving bonuses, stocks, and stock options....
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As part of a series of articles about divorce, the Tampa Bay Examiner takes the opportunity to reprint one version of the Children’s Bill of Rights. There are many versions, that express similar sentiments in somewhat different ways. Any version is worth every separating parent’s review: The right to be treated as important human beings, [...]

This is part two of the exclusive online presentation of "Empowering Parents" by Rev. Dr. Trey Kuhne, LMFT:

Where Does all the Time Go?

Yeah, where does all the time go when you think about raising your child/ children. I bet for some of you it seems like it was just yesterday that they were toddlers and now they are teenagers growing up so fast. Where did the time go?

Time is a concept that your children (in their teenage years and beyond) totally perceive differently than you and your spouse. Remember when you could say that bedtime was at 8pm or homework has to be completed before dinner? Those days are long gone. For the teenager, time is on and in THEIR hands or so they perceive.

Starting somewhere around age 14 (if not before), your teenager begins this “rite of passage” into independence. You, as the parent, are the perceived enemy/adversary to their freedom and time. As a therapist, I hear it all the time. A common phrase I hear is something like this “But, Dr. Trey, Bobby’s parents don’t make him come in at 8pm. He gets to stay out until 10pm. My parents are so mean and strict!”

Though your children honestly think they have a grip on the full understanding of time, in reality we know differently - they DO NOT. They only perceive one thing in their world for the most part and that is him/herself. They are the center of their world and most anything that interferes with that is perceived as an adversary, including the well intentioned parent.

What I am saying is that your responsibility as a Parent is to help your children understand the importance of time management and time utilization. School and socializing is their job until age 18 and they must learn to figure out how to use time in the best way possible. So, though you may have pressure on you from hearing about “Bobby’s parents being so lax,” don’t give in.

Keep your child structured. Keep the rules in play. Keep the learning active. Stay the course with curfews and time management. Though there are opportunities for flexibility as the positive outcomes of good time management are rewarded, do not abandon your children to their own recognizance. They simply cannot handle it on their own as well as you think they can.

Empower yourselves and empower your children by keeping quality management rules and structure in place only until your child at age 18 proves him/herself worthy of handling independence. As your children learn to manage little things, maybe they will be able to handle greater things as they grow!

Grace and Peace,
Dr. Trey Kuhne

Dr. Trey Kuhne is a pastoral counselor and licensed marriage and family therapist with Pathways Pastoral Counseling located at St. Christopher’s Episcopal Church, 400 Dupre Drive, Spartanburg, SC 29307. He specializes in working with individuals, couples and families. Call (864) 542-3019 for an appointment. He may be reach via email at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

No matter what we as a society throw at it, domestic violence remains an intractable problem. Impacting perhaps twenty-five percent of women in the US. So the President is appointing a White House advisor on domestic violence. The appointee is tasked with reaching across agencies to better coordinate governmental action. The appointment comes as domestic violence is, despite our [...]

Jeanne M. Hannah has began a new feature at her Updates in Michigan Family Law blog, called "Jeanne's Toolkit", which aims to help both new and experienced lawyers perform certain tasks.  The first tool helps you get to the right desk with requests in any state and at all federal agencies under the Freedom of Information Act (FOIA).

The fact is that family law attorneys often need copies of public records. These can range from police reports to protective service worker's reports to information about a serviceperson in the armed services. The Freedom of Information Act (FOIA) compels the agency or governmental department holding the records to produce them within ten days of the request.

The fastest, easiest way to generate these requests is the FOIA Letter Generator, from the Reporters Committee for Freedom of the Press.  You simply select the appropriate state or federal agency, specify what type of information you are seeking, and it generates the letter for you!

Source:  "Jeanne's Toolbox - FOIA Requests" by Jeanne M. Hannah, published at her Updates in Michigan Family Law blog.

Adoption can be a complex legal process and a costly social process. It can also be the answer to a couple’s prayers. There are several types of adoptions: domestic private, through an agency or direct domestic foster care international private foreign or domestic special needs Eachy type of adoption typically imposes different costs and expense, offers different potential tax benefits [...]

Wife files a petition for injunction for protection against domestic violence for a restraining order against Husband. Husband is not yet served with order of protection against him. Husband had moved out of marital home. But was there one Saturday evening, trying to break in. He succeeds. Wife calls police. They arrive. Husband locks himself in the house. Husband shoots Wife. Wife [...]

Oregon Wife and Greek immigrant Husband marry. Husband and Wife have Son. Husband and Wife raise Son with awareness of his dual heritage. Husband and Wife travel with Son to Greece for his baptism and when Husband’s father passes away. In September of 2008, when Son is two years old, Husband takes Son to Greece to visit extended family [...]

Lawson v. Lawson, ___S.W.3d __ (Ky.App. 2009); 2008-CA-000824-MR The parties divorced in 2006. The wife sought and received an expedited divorce without conducting discovery into the extent of the marital estate. In the settlement agreement, wife received approximately 4 million dollars of assets and immediately began accepting the benefits of same following the divorce. Eleven months later, wife filed a CR 60.02 motion challenging the separation agreement based on claims of intimidation, overreaching and/or mental incompetence. The trial court denied her motion for three reasons: 1) the claims of intimidation, overreaching and/or mental incompetence were unsupported, 2) even if her...
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Even the most experienced parents can learn something from the following tips from Lucille Zimmerman:

If you’ve messed up, let your kids know and ask for their forgiveness. When you teach them how to forgive, they will know how to ask others for the same.

Removing a positive stimulus works so much better than punishment. The effect of taking toys, cell phones, or fun activities is longer lasting and you don’t create the generalized fear towards you that spanking does.

People always tell you that this time of having little ones will be over sooner than you think. They weren’t kidding. In a blink, your children are raised and you have the rest of your life to do what you want.

Remember that your children aren’t you. Stop living through them vicariously. Don’t make them be the greatest football player or cheerleader if it’s your dream. Allow them to make mistakes. Allow them to differentiate; separate and become their own person.

Even if they act like they don’t need hugs and touch, they do. No matter how old they are.

Don’t make their bodies the battleground. How can we teach them to make decisions regarding sexual purity if we command control over their bodies?

Keep in mind that too much freedom is just as damaging as too much authority. The best children turn out healthy and happy when there are rules, but some flexibility and leeway for rules to be changed along the way.

I don’t believe you can spoil a baby with too much love. Nor do I believe you can harm him by responding to his cries.

Call your own parents and love them the best way you can. Remember, they had their own wounds. No one tries to screw up his or her children.

Source:  "Parenting Tips - A Few Things I've Learned Along The Way" by Lucille Zimmerman, published at Examiner.com.

Almost twenty years ago I was asked to speak to the State Conference of Trial Judges about what then seemed to be a fairly arcane subject; whether adult children could be sued for support by their parents or by individuals or entities providing their parents with necessities.  Countless pages are written about the subject of parents and their duty to support minor children.  But did the duty run in the other direction?

It turned out then that there is such a responsibility. According to Blackstone, this principle comes from Athenian law. 1 Wm. Blackstone, Commentaries on the Laws of England p. 442 (1765).  As he described it just prior to the American Revolution, “….they who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance.

The address to the judges on this concept seemed of little effect at the time as there was no recent litigation addressing this subject. But approximately two years ago I spoke with a fellow attorney from Bucks County, Maryjo Murphy, who said that nursing homes were starting to initiate suits against children for services rendered to their parents.

Monica Yan Kinney’s article in the July 12,2009 edition of the Philadelphia Inquirer at page B.1. gives life to the Athenian law as applied in 21^st century America.  The article tells the story of a Havertown resident, Don Grant who was sued by his mother’s nursing home for $8,000 for services supplied to her.  The ironic twist is that Mr. Grant’s mother does receive social security and a state pension but neither of these income streams is attachable by creditors. So, the nursing home sued Mr. Grant for his mother’s care. Mr. Grant professes that he is estranged from his mother and that he was raised by his grandparents.  But that does not appear to be a defense today just as it was not in Blackstone’s day.  In fact, as Judge Blackstone put it, the statute passed under Queen Elizabeth I provides that a child is “equally compellable, if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor as for one who has shown the greatest tenderness and parental piety. 1 Blackstone p. 442 (citing Stat. Eliz. C.2.)

The Kinney article notes that Mr. Grant did not act promptly to appeal what was probably a district court judgment.  It thus became final.  But there is a Pennsylvania statute, 23 Pa. C.S. 4603 that provides spouses, children and parents of indigent persons have a duty to care for, maintain or provide financial assistance. Perhaps there is new law to be made here. The statute also states that the obligation is premised upon the payor’s financial ability and the obligation is not enforced where a child was abandoned by a parent for 10 or more years of the child’s minority. 23 Pa. C.S. 4603(a)(2).  But the doctrine of parental responsibility does appear today to be a two way street.  And the statute confers the right of suit on the indigent person and any other person or public agency having an interest in the care of the indigent person.

In Brevard County, Florida, over half of the women killed by intimate partners had in the last three years turned to the police or the domestic violence courts for assistance, in the form of arrests or restraining orders. In many of those cases, the abuse victim did not follow through, recanting or simply not appearing in [...]

I am pleased to continue to present the exclusive online presentation of "Empowering Parents" by Rev. Dr. Trey Kuhne, LMFT.  Here is part three:

Parents Who Indulge Too Much

In a recent continuing education offering for us therapists sponsored by Cross Country Education, I opened the pamphlet to read the following words describing the upcoming conference entitled: Overindulged Children and Conduct Disorder Treating Overindulgent Families:

Overindulgence of children has become a serious issue leading children and teens to conduct disorder symptoms. Overindulged children are creating complex community problems, complications for educators and are clogging our legal system. Bright and loving parents, with intense cognitive distortions, confuse love with overindulgence. Their overindulgences stop them from mentoring their children, leading children to develop what Dr, James Fogarty, EdD (a licensed clinical psychologist) has termed the “lord of the flies” syndrome – a life without boundaries, balance, and conscience. The complications of overindulging children include symptoms of conduct disorder, acute self-centeredness, intense detachment leading to anger and resentment fueling misbehavior, excessive dependency, “it’s-all-about-me” entitlement, manipulation, loss of self-esteem, missing social skills and impulsiveness.

Spartanburg has a problem with parental overindulgence of their children. Maybe you as the parent are doing it out of guilt or shame for how you grew up, vowing to provide for how you were not. Perhaps, you work so much and are not as emotionally involved in the lives of your children so you pacify them with anything they want and more.

Putting your children at emotional risk with overindulgence creates more problems that they cannot handle. And so as parent, you wrongfully confuse love with giving them whatever they want. That is not love. It is indulgence whereby your child learns patterns they can manipulate. When off to college, these overindulged children struggle to manage a life and lifestyle that doesn’t work like it did back at home.

In this Empowering Parenting Series, my goal is to educate and support parents to take back control of the ordering of the family way of life up until your child reaches 18 and goes off to college. That may mean appearing “mean” or being harshly judged as not being as good as “Billy’s” parents. Build systems in the mentoring of your children whereby they actually earn various levels of increase. When they get out of college they will need to know how to earn a living through hard work.

Be intentional in what you display and teach your children. Let them learn authority, respect, and how to handle money, their car, and even the things they buy with their “own” money. Let them learn that they cannot nor will not have everything that they want. Set limits for them so they can learn to appreciate what they do have.

Grace and Peace,
Dr. Trey Kuhne

Dr. Trey Kuhne is a pastoral counselor and licensed marriage and family therapist with Pathways Pastoral Counseling located at St. Christopher’s Episcopal Church, 400 Dupre Drive, Spartanburg, SC 29307. He specializes in working with individuals, couples and families. Call (864) 542-3019 for an appointment. He may be reach via email at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

As Congress finally tackles the larger issue of health care reform, many Americans are struggling with a small but vital issue; their own health insurance.  This has become a tough commodity to find at any price and each change in coverage offers the risk that existing illnesses or conditions may be excluded from coverage.  For some time now, federal law governing employers with 20 or more employees required that continuation coverage be afforded for 18-36 months to any employee or eligible dependent who would otherwise lose insurance coverage by reason of a job termination or divorce.

Problems emerged if the business had fewer than 20 employees, the federal law (known by the acronym COBRA) did not apply. So, employees who worked for small businesses often found that they would not be able to continue their health insurance coverage.

Earlier this Summer, the Pennsylvania General Assembly sought to address the problem with a “mini-COBRA” bill directed to insurance providers.  A summary of the bill was prepared by our Labor and Employment Law Department members Erin Fitzgerald and Steven Ludwig.

Effective July 10, 2009 Pennsylvania’s new state law requires that the opportunity to continue group health coverage be provided to employees of small employers with 2 to 19 employees.

The law requires insurers to provide the opportunity to continue group health coverage to certain employees and eligible dependents who would otherwise lose coverage.  An employer is required to notify former employees and others of their right to continue group health coverage.

The motivation for the legislation was the federal stimulus bill which provides certain employees who are involuntarily terminated from employment on or before December 31, 2009, and their dependents, with a COBRA subsidy.  The subsidy allows the employee to pay only 35% of the health insurance premium with taxpayers picking up 65%.  The Pennsylvania legislation will extend the subsidy to reach eligible employees and their dependents at employers with fewer than 20 employees.  Although the federal subsidy is scheduled to end, the Pennsylvania law has no sunset provision.

Under the new law, a covered employee or eligible dependent who suffers a “qualifying event” causing the loss of health coverage is eligible to elect continued coverage for up to nine additional months.  However, the employee or eligible dependent may only elect continued coverage if he or she was covered under the group health plan for the entire three-month period preceding the “qualifying event.”  Qualifying events include, but are not limited to, the death of the employee, termination of employment for reasons other than gross misconduct, and divorce.  Employees who are eligible for Medicare or who are eligible for or covered by other group health insurance are not eligible to extend benefits or to receive the federal subsidy.

After electing continued coverage, premiums (which can be increased to 105% of the cost of group health coverage) must be remitted monthly.  If the cause of the loss in coverage is involuntary termination of employment between July 10, 2009 and December 31, 2009, the 65% federal subsidy is available for up to nine months for eligible participants.  Involuntary termination generally means severance from employment because of the unilateral decision of the employer to terminate the employee.

Employers have several obligations under the new law.  Employers must notify the administrator of the group health plan, the covered employee and the insurer of any qualifying event, within thirty days of the qualifying event.  The notice given to the covered employee must include notice of the employee’s right to continue group health benefits.  This notice should be given in writing and should include contact information for the health insurer.  The U.S. Department of Labor has provided a “Model Alternative Notice” to provide to employees eligible for state continuation coverage.  However, the model notice will need to be modified to conform to Pennsylvania law and a different notice will need to be used after the subsidy is no longer available.  That model notice can be found at: http://www.dol.gov/ebsa/COBRAmodelnotice.html.  Employers will need to closely coordinate with their health insurer so that proper notice is provided to covered employees.

After the covered employee has been properly notified, he or she has 30 days to notify the Plan Administrator of the decision to elect continuation coverage.  Within 14 days of receiving the employee’s decision, the Plan Administrator must notify the insurer of the employee’s decision.

Do You Know the Answers to
These Important Questions?

Do you need an attorney? What should you consider when hiring a family law attorney? What are the most common mistakes spouses make when divorcing? What can you do to increase your chances of getting custody? How can you help your children during a Family Court case?

What mistakes can cost you a fortune? How can you protect yourself before filing for divorce? What steps can you take to reduce the pain and expense of divorce? How can you protect your assets during a divorce? How can you protect yourself when being accused of child abuse or neglect

Find out the answers in our free special report
“Guide to Family Law Cases in South Carolina”.
Request a copy by calling (864) 598-9172
or completing the form below.

 

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