Pennsylvania Family Law : Pennsylvania Divorce Lawyer & Attorney : PA Family Law Blog : Fox Rothschild Law Firm : Family Law Serving Philadelphia, Pittsburgh, Bucks County, Montgomery County, Chester County

 We live in an age when both people and transactions cross state borders more and more often. Evidence concerning what occurred in Pennsylvania is often located outside of the four corners of the Commonwealth and thus, beyond the subpoena power of Pennsylvania Courts.  This is true for all forms of litigation, not just family law.

In the past, if you needed to secure documents or depose a witness outside our borders, you had to secure something called a foreign commission.  Essentially, one filed a motion in the Pennsylvania case to be permitted to conduct discovery outside of the Commonwealth.  Your opposing parties could contest the motion here, typically on the basis that the evidence was not relevant or a mere fishing expedition.  If your relief was granted, you next hired counsel in the jurisdiction where the evidence or witness was located.  That attorney would file a miscellaneous action in the foreign court (“foreign” meaning outside Pennsylvania) specifying the needed discovery, indicating that Pennsylvania had approved pursuit of it and asking for leave to proceed in the other state.  This action would be served on the witness or records custodian outside Pennsylvania.  That person or entity had its own right to ask that the relief be denied. Again, most often that would be because they denied relevance.

Effective December 24, 2012 Pennsylvania adopted the Uniform Interstate Depositions and Discovery Act (Act No. 183 of 212: SB 79 of the 2011 Session).  This act has been adopted by 28 states (including (DE, MD, NY, VA).  The purpose is to streamline the old cumbersome procedure by making it a one-step process.  If you the litigant in Pennsylvania need evidence in New York, you will need to follow the New York statute and engage counsel in New York to actually take the discovery.  But the “permission” part of the old foreign commission rules has been abandoned as far as the Commonwealth is concerned.  Similarly, if a New York litigant wants to take discovery here the New York litigant issues a New York subpoena to the Prothonotary in the county where the witness or evidence is located.  The Prothonotary is to “promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.” 42 Pa. C.S. 5335(b). The Pennsylvania subpoena is to conform to the foreign subpoena in content and have the identity of all parties and/or counsel, if represented. The statute expressly adopts Pa. R.C.P. 4009.21-.27.

Pennsylvania parties served with such a subpoena must file for a Protective Order under Rule 4012 if they wish to oppose the request discovery.  Otherwise, the re-issued foreign subpoena (now in its Pennsylvania form) is subject to the same powers as any other Pennsylvania subpoena including the right to enforce through contempt. 42 Pa. C.S. 5337.

The statute makes clear that parties in Pennsylvania may informally comply.  The remedy is limited to subpeonae issued by any of the United States, Puerto Rico, the US Virgin Islands and the District of Columbia.

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(Image by Bettman/CORBIS) - Lunch at 800 feet only seems normal if you are used to it.

I recently took a phone call from an individual who wanted to learn about the laws related to the emancipation of a minor.  This person would not identify herself, but described herself as a “case worker” who was calling for a family friend who wished to remain anonymous: a fifteen year old girl who wanted to become emancipated from her parents due to what she described to the case worker as abusive conditions. 

My immediate response was to ask whether the police or Children and Youth Services had been called.  The caller did not know, but did not think so.  Since the caller was a “case worker” who described working with pregnant teens and “at risk” kids, my next question was simple: if there is abuse, don’t you have a duty to report the case to CYS and the police?

Pennsylvania’s laws for mandatory reporting can be found under 23 Pa.C.S.A. § 6311, which is the statute controlling Child Protective Services.  Section 6211(a) broadly states that anyone who comes in contact with children “in the course of their employment, occupation or practice of a profession shall report or cause a report to be made…when the person has reasonable cause to suspect…that the child under the care, supervision, guidance or training of that person is a victim of child abuse.” 

This section identifies the basic procedure for mandatory reporters to bring allegations of abuse to the attention of Child Protective Services.  Not surprisingly, this section of Pennsylvania’s code received quite a lot of attention in the midst of the Jerry Sandusky/Penn State scandal and criminal case.    

The caseworker’s response to my question was slow and contemplative: “Yeah. I guess I do have an obligation to report.”  This was clearly the first time she had put her friend’s situation into the context of her profession.  When it comes to deeply personal issues such as abuse, divorce, or addiction, the personal and professional line can be easily blurred and it made me wonder whether she “missed” connecting her friend's personal experience with her job's duties was due to the context of how it was presented.  Had this situation been presented to her at an intake session with a teen, the case worker would have likely seen the abuse and notified the authorities.  When the facts were taken out of that context and she was addressing them as a friend with personal knowledge of all the people involved, her judgment clouded and her professional instincts were not triggered.

Most any job eventually desensitizes a person to the unusual circumstances of their profession.  What is strange and fascinating to one person is the job description someone else finds routine.  Someone free climbs a tower at 1,700 feet to change a light bulb; the Louisville basketball player who suffered the terrible broken leg last week was a shocking sight, but I bet that was not the first – or worst – open fracture of a leg his orthopedic surgeon has seen in his career.  A client’s divorce will always be the worst one they can experience, but often the attorney has had to deal with even more difficult facts.

In this instance, the social worker who deals with kids in broken homes, addiction, teen pregnancy and bullying may not view her abused friend as being someone to whom she has a duty to report this to the authorities.  She tried to be a friend, instead, and called an attorney.  This is not an excuse for the case worker, but it could indicate a loss of perspective of what is normal and where her duty to report begins and ends under Pennsylvania law.

My call with the case worker was short; perhaps no more than a minute.  I would like to think she hung up with me and immediately called CYS; possibly the police department.  Hopefully not another attorney to ask about Pennsylvania’s emancipation laws.

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It came over the newswires that five people had been shot and three killed in the Court House in Wilmington DE.  As trial attorneys in a field where the Court Houses are part of our daily existence, hearts stopped for a moment.  We have family lawyers in Wilmington and we know they go through security just as we do in Pennsylvania.  We go through security staffed by ladies and gentlemen responsible for making certain that bad things don’t happen on the inside.  But from the reports we have received thus far, a disgruntled Father decided that he wasn’t bothering with security.  He would just start shooting in the lobby.

In thirty minutes I am due in the Chester County Court House to judge a mock trial competition for high school students.  The students will be over prepared, nervous and probably won’t realize just what service the sheriff who pats them down provides to them.

Ordinarily, I don’t stop to think about that service either.  These folks are my friends and I have come to see them as such.  But tonight will be different.  Much as the parents of Sandy Hook awakened to a new reality on December 21, all of us who work in the courts will enter with a new level of respect today.

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(Photo by Indi Samarajiva)

The Pennsylvania Support Rules were recently amended on December 30, 2012.  Rule 1910.29, formalizes the presentation of support evidence for Family Law Cases.  Anecdotally, the Rules of Evidence may not always be strictly adhered to in family law cases due to probative value of some forms of evidence weighed against the cost and difficulty of verifying it or authenticating it at trial. 

Rule 1910.29 attempts to eliminate some of ambiguity about the admissibility of some forms of evidence by providing counsel the opportunity to offer the other side copies of those documents they will be offering into evidence twenty (20) days prior to the hearing.  In doing so, provided the other party does not object to the admission of those documents into evidence, they will be accepted as authentic and admitted into the record.  If an objection is made to the records, then the Pennsylvania Rules of Evidence will apply as to the admissibility of those documents into evidence.

This rule also standardizes the admission of medical evidence in both record and non-record proceedings, (i.e. proceedings which are not recorded by a court reporter).  Whenever a party raises a medical issue as preventing them from earning income, that party will need to obtain a Physician Verification Form and have their physician fill it out and verify its contents as accurate.  This Physician Verification Form will hopefully eliminate some of the ambiguity for those parties who claim a disability, but conveniently have failed to file for Social Security Disability or worker’s compensation benefits. 

If the party who has introduced the Physician Verification Form at the non-record hearing would like to have it entered into the record at the record hearing, then the above rules will apply with giving the other party twenty (20) days notice prior to the hearing and allow the other side the opportunity to file and serve an objection within ten (10) of being served with the document. 

By filing an objection, it is likely that the physician will need to testify since there will not be any medical evidence available for the record and if the court deems that the objection to the entry of the Physician Verification Form was frivolous or unnecessary then it is within the court’s discretion under this rule to allocate the costs of the physician’s testimony between the parties.  This portion of the rule is a not-so-subtle suggestion to attorneys to keep their objections substantive and not use objections as means of delay or obstructing the other side’s case.

This rule update is a significant change in how evidence is admitted in support actions.  This should help streamline litigants’ ability to offer complicated financial evidence and have objections and questions addressed in advance of the trial, rather than bogging down or delaying the substantive hearing by what amounts to a discovery dispute. 

This rule can also have the positive effect of keeping some litigation costs down by allowing a party to produce a non-expert summary and have it pre-approved for admission into evidence, thereby alleviating the need to bring an accountant or other financial expert to court in order to testify as to the information. 

Finally, Pennsylvania Family Law procedure varies from county to county and is reliant upon local practice when dealing with a variety of different issues.  This rule update gives some state-wide uniformity to this form of evidence.

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For Pennsylvanians who live below Interstate 80 and east of the Allegheny Mountains, the Marcellus shale boom is vaguely known to us.  But it is told mostly in the context of cocktail party stories about hunting camps being transformed into huge payments for gas rights. Unless you own a hunting camp these stories are heard with a level of disinterest; much like hearing about the friend of the friend who won it big at the lottery.

Truth be told, oil and gas deposits are consuming the northern and western regions of this state unlike anytime since the discovery of Spindletop moved hydrocarbon exploration in Texas to the forefront and away from Pennsylvania.  That was a century ago and it is ironic that for many Pennsylvania counties, the glamor lost in that era appears to be destined to rise again.

That being said, the purpose of this is to provide divorce lawyers with a very thin view on a very deep and lucrative subject. Until 10 years ago, when a spouse offered up that her husband had a longtime interest in a hunting camp deep in the woodland, most attorneys would glaze over.  The land sold for $50 an acre after the end of World War II and might otherwise command $500 today.  The camp was 300 acres and 30 families owned “interests”. That was $5,000 before we considered minority and marketability discounts. 

Then came Marcellus shale.  More accurately shale has been around for millions of years. It was recognized to have some trapped mineral or gas deposits just about the same time as coal was discovered to be useful (circa 1830).  But until hydraulic fracking (or more accurately “fracturing”) and horizontal drilling came along, this energy was trapped deep in the ground with no commercial means to extract it.

The world has now changed and with it the value of the land on which Marcellus and now Utica shale is found. Beginning roughly seven years ago established exploration companies began to appear throughout the north and western regions of the commonwealth with helicopter operated surveying equipment and miles of orange extension cord as these companies identified where they thought shale gas could be positively identified through seismic testing. They approached families and hunting clubs through “landmen” with offers of sometimes eye-popping payments merely for the right to explore for hydrocarbons.  If they ultimately began to extract gas they would do so for additional royalty payments that are a minimum of 12.5% of the value of the stuff extracted. Typically these leases provide that unless the drillers began to make the land productive by actually drilling and extracting product within a specified time, the landowner can keep the payment and re-let the land to others.

History took a strange turn in this; a kind of deceptive turn, as well.  Until 2000 the wellhead price of a thousand cubic feet of natural gas had been less than $2.00. But beginning in 2000 the price rose precipitously peaking at more than $10.00 per 1000 cubic feet in October, 2005.  It dropped off but then returned to $10.00 in June, 2008. Throughout this entire time leases were being formed and many wells were being drilled. But after reaching a peak of $10.79 in Summer, 2008 prices fell as quickly as they rose. Gas price at the well dropped 70% in the following year and the price was less than $2.00 in May, 2012.  Currently the shift in production is headed toward Southwestern Pennsylvania where the shale deposits contain “wet” gas; methane coupled with propane, butane and ethane.  Theses gasses have not suffered the same decline in price as dry (methane) alone and are therefore, more profitable to extract.

There is no certainty in any market and commodity markets are among the world’s most volatile as this history shows. But folks who invest in these commodities have learned to embrace this risk knowing that Americans are addicted to hydrocarbon energy. Between Labor Day 2008 and President’s Day 2009 the average retail price of gasoline fell by 50%, creeping back to almost $5.00 in Spring, 2012.  The betting is that prices will rise for all of these commodities.  

Marcellus and Utica shale reserves are near the Northeast corridor where most energy is consumed. The Utica shale formations are found even deeper in the ground than their Marcellus cousins.  There is plenty of water in the region to use for the fracturing process. As this is written drilling has tailed off in many areas because it is expensive and gas prices are low.  But anticipating an eventual rise in price, the energy companies have turned to building pipelines and compression stations to regulate gas flow once in the pipes.  Bear in mind that when we say drilling has tailed off, 3,400 wells have been drilled since 2008.  Some of these wells are paying royalties to landowners of tens of thousands of dollars each month despite depressed prices.

"Hunting camps" are no longer an unimportant asset; appraisals of the land and mineral rights thereon are a critical element whenever this type of asset is in the marital estate.  The system of leasing and royalties can make for a complicated analysis and requires the diligence of a family law attorney to ensure the value of the land is properly evaluated and considered at equitable distribution.

(attached is a power point presentation, please view in full screen)

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This is not a real estate blog but many of our clients have a heavy portion of their net worth invested in residential real estate.  So when the Fels Institute of Government at Penn Published a State of the Philadelphia Housing Market in mid November we thought it worthwhile to secure and read a copy.

According to the survey home prices peaked both in the region and the country in the first quarter of 2007.  The last time we had seen a decline was from 1990 to 1994. We tend to forget that prices climbed as an amazing rate from 1998 to 2007 and that prices are currently in the same range as they were circa 2004-05.  Measured against 10 other metropolitan markets over the past 25 years Philadelphia housing grew 25% less in price than the other cities.  But, in typical Quaker style when we did plunge from the high, Philly houses declined by less than one-half of the decline in the 10 composite cities.  Where we feel like today is 2005 in home pricing our ten city neighbors are feeling more like mid-2003 in terms of value. Resorts fared the worst with losses of 61% in Las Vegas 51% in Phoenix and 45-48% on the Florida coasts when measured against the high.  Only Dallas and Denver fared better than Philadelphia.  Even the darling markets of Washington and New York was 26-27% declines from the peak.  Still, we will need to recover an additional 14% to get back to our 2007 peak.  We may not feel happy about what occurred but our house value declined later and was more modest than in our shoulder cities of New York and Washington, both of which will need to see another 25% price rise to recover that old time 2007 feeling.  Meanwhile if you had been in a Dow Jones index fund this entire time you are less than 2% away from the Dow’s all-time high in early October, 2007 of 14,006.

There is another unhappy aspect to consider.  Securities are highly liquid.  And while we are reporting that home prices are recovering, actual home sales remain very sluggish.  From 2002-through the third quarter of 2008 (the Lehman Bros crisis) the Philadelphia market saw pretty steady sales of more than 5,000 houses each quarter, the first quarter of each year excluded.  In 2012 just over 3,000 homes sold and our region has not seen us break 4,000 since second quarter of 2010. The quarterly average since 1995 has been about 4,300 homes per quarter and measured by sales alone in contrast to price, the data look more like 1995 than 2005 when we peaked at 8,000 homes sold each quarter.  Another approach to this is to look at the number of homes on the market.  From 2001 to early 2005 Philadelphia typically had 5,000 6,000 homes for sale each quarter. In 2005 that number began to spike reaching a peak of more than 12,000 homes for sale in late 2006 and again late in 2007. The number has bounced around between 9 and 11,000 homes since late 2007 with the current trend close to 9,000.  But this still means that in times of relatively stagnant growth we have one-third more homes on the market than we did eight to thirteen years ago.  So the lesson is that if you want your price be prepared to wait a long time and if you don’t have time, your price is going to have to be very competitive.

In the end, the news is not gratifying but before we start complaining it might be wise to remind ourselves that in comparison with almost all of the rest of the United States, we were not badly hurt.

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Most domestic relations practitioners have fairly standard agreement clauses which they are comfortable with and use day in and day out in the preparation of property settlement agreements. We have recently encountered two seemingly innocuous “boilerplate” clauses that can come back to bite if the document draftsperson does not consider all of what has transpired during the weeks, months or years culminating in the property settlement agreement.  We offer two examples:

1.             The typical settlement agreement incorporates a mutual release of all claims; whether past, present or future, that the parties may have against one another except for those related to enforcement of the property settlement agreement itself. Often, it makes reference to claims for past, present or future support. Is the intention in this case to release support arrearages that may have accrued prior to the agreement?  Chances are that is not the case but shouldn’t your agreement make that point a clear element of the release.

On a related point, a couple of years ago, we reviewed a case where two spouses became immersed in a fight where the wife was injured severely enough to bring a civil action to recover damages. That case settled quickly and wife’s counsel (not her divorce attorney) had her sign a general release at the time the tort case was settled. The problem was that a divorce case was still pending in which Wife had raised claims for equitable distribution and alimony.  In that instance, the Court permitted parole evidence and used it to decide that the release was not intended to include the pending divorce claims.  But one can just as clearly assert that a general release is not an ambiguous document and that this was a case of unilateral mistake on the part of one spouse.

2.             In many cases where closely held businesses are involved, there are often tax indemnity agreements and/or document confidentiality agreements.  The former provide that the owner of the business will indemnify his/her spouse for tax liabilities imposed on the couple jointly based on problems with the business return. The latter are agreements that state that information or data provided in the divorced valuation process will be kept confidential. 

Many standard property settlement agreements negotiated long after the indemnity or confidentiality agreements are reached contain language stating that the settlement agreement sets forth the “entire understanding of the parties and supersedes any and all prior agreements.”  The practical effect is to dissolve the tax and confidentiality agreements.  One wonders whether one could say that it might also be used to avoid pending court orders in support or custody as well.  We think the latter argument a stretch but if the law of contract states that we are to give life to every word of an agreement according to its plain meaning, the argument could easily roll another way.

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As we all know sometimes statistics tell a story.  And as we look at the evolving American family the data coming out of Pennsylvania tell an interesting story as the family has evolved over 50 years.  The chart will tell most of the story:

* This data comes from 2002 as the Pa. Dept of Health states it did not preserve data from 1999-2001 on these topics.

Some points we find interesting.  First the state’s population has actually started to experience some growth in the past 20 years after a generation of stagnation. But while the population had grown 11% over half a century the number of marriages has remained fairly static after peaking in 1970.  The number of divorces rose precipitously from 11-14,000 per annum in the 1950s to 22,622 in 1970.  By 1979 it almost doubled again to 39,808.  But since, 2002 it appears to have actually declined by a few percentage points.  The birth rate has plummeted 40% since 1960. In 1960 there was a child born for every 47 residents.  Today one child is born for every 89 residents.  So families are smaller and fewer folks are choosing the formalities of marriage.  But while the population has grown 3.4% in the first decade of the 21^st century, the number of divorces actually declined by almost 10%. It does give one pause to ask: what is the future of marriage where over 40 years the population grew by 7% but the number of marriages performed fell during the same time frame by 28%?

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The stereotype of a family law attorney is that they deal in divorces or are limited to issues between spouses. The reality is that the practice can be far reaching in scope and encompass estate planning issues, business interests, and matters that extend beyond ex-spouses, but that deal with many aspects of a client’s life.  A recent example of how the term “family law” can truly encompass the entire family made news recently in the form of the legal action NFL rookie offensive lineman Tyron Smith had to take against members of his family. Mr. Smith found himself at odds with family members who allegedly had become so aggressive in their demands for money that he had to call the police to intervene. Mr. Smith’s representatives report that about $1 million is missing from him.

Mr. Smith plays tackle for the Dallas Cowboys. While in southeastern Pennsylvania that job description may not get him much sympathy, I think everyone can at least understand and appreciate why a young man who is (allegedly) missing $1,000,000.00 would need to establish some secure boundaries between his family and his money. An NFL player’s career is short; don’t confuse the small number of higher profile long-term players for the general rank-and-file of the NFL. The fortunate ones may play an average of three years; some never make it past their rookie contract or, for that matter, rookie training camp. Mr. Smith, under the NFL’s new collective bargaining agreement, is extremely well-paid, albeit not as well-compensated as his predecessors, many of whom has gone on to financial ruin due to family situations not unlike his.

As reported by Kareem Copeland of www.NFL.com, subsequent reports have come out about the facts behind Mr. Smith’s call to the police and his family disputes there was a disagreement about money (while acknowledging that he has given them a sizable portion of his four-year, $12.5 million contract). Nevertheless, Mr. Smith clearly reached a point where he could not trust those closest to him and had to act out of self-interest to protect himself and his financial stability.

Andrew Brandt, who has the distinction of having served on both sides of the NFL bargaining table as an agent and executive with the Green Bay Packers, wrote an interesting account of his experience with young players in similar situations as Mr. Smith. He has experienced the difficulty of counseling a client to act in a way that may hurt – emotionally or financially – someone they love, but sometimes that is a consequence of protecting the client.

Tyron Smith’s experience is not exclusive to wealthy athletes; many people find themselves in situations of having to seek judicial intervention in the form of Protection from Abuse Petitions, evictions, or needing counsel to resolve a financial issue in Orphan’s Court. Mr. Smith clearly found himself in a situation in which he had to consider what legal protections were available to him in order to secure his future. While Tyron Smith’s athletic career may be long, his post-NFL life will be much longer and – whether his actions prove to have been justified or a misunderstanding – he should commended for not waiting until his playing days and money ran out before doing something to protect both.

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This question is one that financial planners want us to focus upon every day in their quest to increase our savings rates and their assets under management.  We have previously reported on this subject in earlier blogs but one of the leading retirement savings managers, Fidelity Investments, published its findings on this subject last month.  The story was the subject an amusingly contentious video clip posted on October 25 on MSN in its “Money” column.

Fidelity should have some knowledge on this subject.  They manage 12,000,000 retirement accounts.  The average balance is just over $70,000.  But as with any prognostication, estimating costs decades ahead can be a frightening subject for any economist.

Fidelity’s conclusion as to required savings rates are expressed in terms of annual earnings. Their report concludes that by age 35 your savings for retirement should equal your salary at that time. Thus, if you are making $70,000 a year, by your 35^th birthday you should have $75,000 invested.  But the number climbs precipitously after that:  For our discussion let’s keep the salary fixed at $70,000.

Age                         Salary                     Salary multiple     Target Retirement Account Balance

45                           70,000                   3x                                            $210,000

55                           70,000                   5x                                            $350,000

67                           70,000                   8x                                            $560,000

Fidelity assumes that their deposits will grow long term at the rate of 5.5%.  The model is built upon the concept that a 25 year old would invest 6% of his earning and increase it by 1% per year until the rate reaches 12%.  A 3% employer match is also assumed. Of course the 5.5% return is no more guaranteed than the cost of health insurance at age 67 can be estimated.

T. Rowe Price has issued a similar model but it concludes that a retiree at 67 will need 12x final salary or $840,000.

These targets can be helpful as a benchmark.  But as we have stated in the past, retirement is not only a function of saving but formulating what your lifestyle will be once you have retired.

Most financial planners say that your expenses in retirement will be different but only 20% less than they were while you were working.  We have recently seen a spate of clients nearing retirement who have undertaken major debt to help a child through graduate school or some other seemingly worthy enterprise.  This has prevented retirement savings or even worse; resulted in huge obligations that retirees really won’t be able to pay off once they leave the workforce.  It is one thing to profess that you will work until you drop.  But, many of us don’t seem to realize that health problems could force retirement upon us.

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Social Security benefits can be an integral part of a divorce case. The ages of parties when they divorce may create a factual circumstance where the timing of Social Security benefits needs to be considered. Suffice to say, Social Security is a vast and complicated system but, as pointed out in an excellent article by economist Larry Kotlikoff, it is one that can provide some significant benefits if applicants know what they are doing. Mr. Kotlikoff was featured on PBS Newshour’s webpage recently and wrote "34 Social Security 'Secrets' All Baby Boomers and Millions of Current Recipients Need to Know". The article is as informative as it is intimidating as to the variety of options available to retirees and how best to maximize their benefits.

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The Wall Street Journal recently ran an excellent article discussing the expanding use of spy technology in keeping tabs on wandering spouses. “A Spy-Gear Arms Race Transforms Modern Divorce.”

New technology allows folks to place GPS trackers on cars, leave hidden cameras around the house and install internet and e-mail monitoring software all for hardly more than it costs to have a nice night out on the town.  The era of hiring private investigators to snoop is over, now the common man can now play Sherlock Homes just by sitting down at his home PC.

Be careful though. The legality of interspousal spying is still an evolving area of law and could lead to serious criminal charges. In Chester County, Pennsylvania, a father of two is being charged with felony intercept of communications and unlawful use of a computer for allegedly installing a $97 spyware program on the family computer. Though the criminal charges may yet be dismissed, it is a cautionary tale to snooping spouses that a reasonable expectation of privacy exists in a marriage and that you need to respect your spouse’s private e-mail, mail and other communications records. Criminal charges are unlikely to result when the snooping occurs with documents and e-mail accounts that are left open or are in plain view. The danger lies in prying into another’s personal affairs where some sort of security or safekeeping measure has been employed evidencing a desire to keep those matters private.

So the next time you consider opening up your spouse’s private e-mail account or searching for texts on their iphone without their permission, think twice, you may be breaking the law.

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My friend's husband died just over six months ago, and although it was not unexpected, what was unexpected was the state of the finances after he passed.  He had handled the finances during the parties' marriage, and my friend knew little of the parties' finances.  How much do you know about your family's finances?  Do you know who holds your mortgage, if there is a car payment and when it is due?  Do you know the passwords to your on-line accounts - are there on-line accounts?  Do you know where your important financial records are located?

Now is the time to educate yourself.  Look at your tax returns, bank, brokerage and credit card statements, safety deposit boxes, and other important financial documents to get a general understanding of your finances.  Talk to your spouse about the bills, and perhaps offer to help.  

A great way to consolidate your financial holdings is through mint.com.  It's free, and you can even set up a budget for yourself.  You can upload all of your accounts to mint.com, and it will update your accounts every time that you log on.  It will also keep track of big purchases and let you know when you are over your budget. 

Not only are current financials important, but make sure that your estate planning is done, as well.  If it was done a long time ago, take the time to review it with your spouse and/or estate attorney and make any updates that might be needed.

It is important to be aware of your finances in the event that you and your spouse separate and/or divorce.  Knowing your state of financial affairs will make a difficult situation easier and help you make the transition into independently managing your personal finances and estate.

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There has been much buzz generated about Anne-Marie Slaughter's article, "Why Women Still Can't Have It All" found at www.theatlantic.com/magazine/print/2012/07/why-women-still-can-8217-t-have-it-all/9020.  And I have been thinking about it a lot lately - for myself personally - and as a family law attorney.  How is a family dynamic affected by a woman who "has it all," or who wants to "have it all" and how does that affect any distribution of a marital estate and custody of the children in the event of divorce? 

In a society where more women are working and gaining financial independence, men are sharing more in the parenting responsibilities of the children then ever before.  That shift in the roles of each spouse has an effect on the family in the event of a divorce.  When men and women have joint child-care responsibilities, they are more likely to agree to a 50-50 custody schedule (and if they cannot agree, the Court is more likely to order a 50-50 custody schedule).  In addition, where both parties are financially independent, the marital estate is more likely to be split equally.  And as for alimony, generally the higher earner has an obligation to the other spouse (regardless of gender), so when a wife is the higher earner she could have an alimony obligation to her husband. 

Each family unit is unique, so the Court will look at the way you cared for your children and earned your incomes during the marriage to determine the "equitable" result in the event of a divorce. 

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When I started to write for this blog a few years ago I promised myself that this was not going to become some kind of personal journal.  I had seen others do it and I did not like what I read; unprofessional.

A month ago I wrote the piece appended to this submission based on a fine article in Newsweek about the Kennedy family and their latest chapter of personal crisis.  I wrote it and then set it aside: too personal, therefore, unprofessional.

Life changes us and in the past 90 days I have learned that this can be good.  When I set aside my piece about the Kennedys I did so because most of us live lives quite apart from anything that family has experienced.  It is easy to dismiss them, for after all, they are not mere mortals but Kennedys.  What life’s experience has taught me in the past 80 days is that we are all mere mortals no matter what our pedigree.

I met Madeline Lamb in 1986 as opposing counsel in a divorce transaction.  She was smart, beautiful and knew how to play her cards at this game even though we were both bagmen for the star attorneys our clients had hired to represent them.  Shortly thereafter we both left work with the stars and went about setting up our own practices.

For the next 25 years we ran up against each other a fair amount.  We also were co-counsel in one of these mega-dollar cases that lawyers love to brag about.  Through that case we both became close with our client and through that client we became social friends.  Perhaps three to four times a year we would all get together and Madeline would arrange for all of us to go to nice restaurants which she was famous for patronizing.  Each time, we would be greeted like pashas because of Madeline but before the night was over Madeline surely had to throw twenty dollar bills at the owner and his staff because we behaved very so badly.

That was three times a year on Saturday night.  On Monday, it would be back in the trenches sort of like the Christmas armistices that took place in the civil war and the first world war.  The layperson reading this might take the cynical view and say we did this for our benefit.  Madeline and I disagreed a lot; in fact, a hell of a lot.  But never, never, never was there an instance where she was not sincerely advocating on behalf of her clients.  And when it came time to draw swords because we couldn’t settle a matter it was strictly lady and gentleman; the way lawyers are taught it should be.

We were not close friends as I would define it.  But even after Madeline gave me an earful about how stupid my client was and how ridiculous I was arguing my client’s position, we would pause to talk about grandkids, Cape May and the injustice of the system.  Lawyers love to talk about the injustice of the system almost as much as they like to brag about their endless victories in important cases.

Our posse of evil dinner guests last convened in February at my home because no reputable restaurant would accept us.  We exchanged gifts that would not be described to polite company.  We talked into the night.  Madeline had just come back from a cruise where some dread outbreak caused everyone to be confined to their staterooms.  She complained of neuropathy in her feet but dismissed it as “being 71”.

On April 19 Madeline went to the family law section meeting and presented her case law update as she had for 25 years.  The following day she was in Court and professing to feel badly, decided to hit the emergency room at Paoli Hospital on her way home.

Life’s rope slipped far too quickly after that.  The diagnosis was a highly virile form of brain cancer.  Her daughter lived in Raleigh near the Duke University Medical Center. Her former husband stepped forward and made certain there was a quick means to get her there.  Thus began the battle to defeat what seemed to be overwhelming odds.  That battle was fully joined for just over two months with daily dispatches from the front reported by a daughter whose bravery was exceeded only by her compassion and her ability to articulate objectively everything that she witnessed to hundred of friends who logged onto the caringbridge website.

By the end of June, it became clear that the war could not be won. Even simple palliatives like platelets were not reviving our friend’s condition.  On June 28 Madeline, her daughter Amanda and the physicians met and decided that the war had to end if life was to end peacefully and at home, surrounded by family.

Madeline Lamb departed this good earth at 1:35am on Sunday, July 8, not even three months after diagnosis. She died peacefully at home as it should be.  She was an outstanding attorney, a leader in her profession and her community.  She was always a “lady” in the finest sense which is to say that she allowed herself a good time but never at the expense of others.

Ironically, I did not learn of her passing until Monday morning. After sending a quick note to her daughter, I found myself back in the cockpit fighting over money and children.  For folks in our trade, it is the daily fare.  But today, late in the afternoon I had a particularly acrimonious conversation with another attorney whom I also consider a friend.  Our fight had to do with parents who had separated a few days before Madeline was forced to accept that her life was at its conclusion. 

 These parents have four young children and, we can hope, a lifetime of parenting ahead of them.  Yet, their personal conflict has resulted in the children not seeing one of them for almost three weeks.  As I put the phone back in the cradle it occurred to me how easy it is to ignore the fragility of life.  When we are healthy it is easy to “go to extremes with impossible schemes.”  If only we could give recognition to how precious life is, perhaps less of it would be squandered on trifling matters.  Family lawyers would make a little less money but this world would be a better place and the children we all profess to love so much, could be spared much of life’s anxiety.

Unlike the Kennedy saga described in Newsweek, Madeline Lamb’s life was not grand.  It was well lived.  And may that be a lesson to us all.

THE MARY KENNEDY TRAGEDY

We write occasionally about celebrity divorces.  We do so because readers find them interesting; a release from the mundane.

This week’s Newsweek features a celebrity divorce but with a very real side.  Mary Kennedy was the beautiful and highly intelligent second wife of Robert Kennedy, Jr.  Kennedy has always been a sort of professional conservationist.  The couple married in 1994 and had four children.  Only 13 when his Father was shot to death, his life has also been marred by some tragic flaws.

In May, 2010 Robert Kennedy filed for divorce.  Within days Mary was arrested not once but twice for driving while intoxicated.  The Newsweek story as reported by Lawrence Leamer describes two years of non-stop domestic warfare with attorneys fees reported to exceed more than $1 million. During this period it would seem that Mary’s life and her talents came apart at the seams. 

 By the Spring of this year Mary saw her children only in a supervised setting.  She continued to live in the “big house” she had helped to design in suburban New York but even friends who profess to have adored her told Leamer that she was disintegrating before their eyes.  Her hatred for her husband, whether justified or not, became a consuming rage.  On May 16 she took a rope, tied it carefully into a noose and threw the rope over a beam in her barn.  It is there that she was found by her husband and a housekeeper.  She was 52 years old.

The Kennedy’s four children, age 10-17 had not suffered enough pain.  The Richardson and Kennedy families decided that there needed to be a fight over where the body would be buried.  The publication of the Newsweek article has revived the fight as the Richardson Family attempts to defend their daughter’s honor against allegations by her husband that she was both violent and alcoholic.

Chances are the death of Mary Kennedy will deprive us of the chance to uncover the whole truth. But there are some remarkable lessons to be taken from his article.  They transcend any importance to deciding whether Mary Kennedy was the victim or the perpetrator of a marriage gone bad.  Among them:

1. As attorneys we are seeing more and more people enmeshed in domestic disputes becoming obsessed and irrational in response to what statistics tells us is a fairly common life event.  When this occurs they engage in behaviors highly destructive to themselves and even more destructive to their young children.  Many times they insinuate their children into their divorce battles under the absurd pretense that children need to know the “truth”. Small children cannot really grasp the truth of adult relationships.  The reality is that many adults don’t seem to be able to grasp the truth.

2. Despite our electronic connectivity, we are more and more isolated from friends and family that could help us.  A keyboard allows me to communicate “to” a huge world.  But it can just as often give me little to no assurance that others are listening, let alone trying to understand my pain.  Everyone today is “busy” in one way or another.  Yet there is no electronic substitute for the look of empathy, the hug or the squeeze of the human hand when a friend or family member is suffering.

3.   An adversarial system that allows humans to spend more than a million dollars and two or more years of precious life in a form of mortal combat is broken.  Children growing up in this kind of conflict cannot help but be damaged by such a process; yet again and again we permit children to spend years in this limbo.

4.   Education, money, magnificent homes and gorgeous offspring have something to do with pride and personal convenience but almost nothing to do with human happiness. This family once had all of these things.  Today, a once vital human is no more and people who professed to love that person have celebrated her life and mourned her death by wrestling over where her corpse is buried.

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The allocation of child tax dependency exemptions is a topic of discussion among our clients on a frequent basis. While the guidelines issued by the I.R.S. dictate who is eligible to claim the children, in Pennsylvania the issue may be raised in the context of child support under Pennsylvania Rule of Civil Procedure 1910.16-2(f). The stated purpose of this rule is to "maximize the total income available to the parties and children" and, therefore, the Court has the authority to award the exemption to either party and, when awarding it to the non-custodial parent (i.e. the party who may not be eligible to claim the exemption under the I.R.S. guidelines), order the custodial party to execute the I.R.S. waiver allowing the other parent to claim the exemption.

Leslie Spoltore, a partner in our Wilmington, Delaware office, recently wrote about a Delaware Family Court case which deals with the allocation of the exemption and articulates a much more specific set of criteria for deciding which party should be awarded the exemptions. It is a worthwhile read and gives some insight into a different way to deal with this issue in a family law case.

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Last month we discussed a few issues that couples should consider when they begin to live together, but don't plan to or anticipate getting married very soon.  This month, we will look at some other important life decisions which may have a huge impact on people's lives and relationships:

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As the national divorce rate for new marriages hovers around 50%, couples living together before marriage or in lieu of marriage is an increasingly routine arrangement. Media coverage has played a part by confirming what many people knew anecdotally: that people are choosing to live together as a committed couple without ever getting married.

What is also increasing in frequency and necessity is for cohabitating couples to be proactive in laying the legal groundwork for how they plan to live together, acquire or pay for assets, and how they should disentangle themselves from such arrangements in the event that they break-up. It can be a difficult conversation to have – no less difficult than one party asking the other for a pre-nuptial agreement – and the introduction of real world considerations may burst the romantic bubble for some, but the risks are real and people’s lives change – the boyfriend with a steady paycheck  has gone back to school and is unable to pay half the mortgage; your girlfriend can not afford her to contribute to household expenses when she loses her job; you have a child together.

The ease of cohabitation without the apparent messiness or seemingly permanence of marriage can actually create a larger quagmire of difficulty if the relationship ends. If you are considering cohabitating with your partner, there are a few things worth considering:

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In a case decided late last year the Pennsylvania Supreme Court visited an old and persistently nagging question.  Are personal injury settlements marital property where the injury occurred before separation but the trial or settlement of the claim occurred afterward?

In Focht v. Focht, the husband was injured at a raceway in Leesport, PA in April, 1999.  He and his wife retained counsel shortly after the injury with the wife raising a claim for loss of the consortium of her husband (i.e, his services as a spouse).  A divorce action was initiated in early 2004.  The personal injury cases ultimately settled later that year for a gross value just over $400,000.

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Here's an interesting article that follows up my recent blog on Facebook:

http://allthingsd.com/20120208/you-know-who-really-loves-smartphones-divorce-lawyers/

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In August 2011, an article was published in the New York Times about “decision fatigue.”  John Tierney, a frequent columnist for the Times, describes a series of studies examining the effects of making multiple decisions over a period of time and experiencing what has been coined “ego depletion” whereby as human beings we have finite amount of energy with which to make thoughtful decisions.  This energy gradually depletes as decisions accumulate until the “decider” finally finds themself making snap decisions with considerably less consideration than they had before. Basically, it is possible that a person finally reaches a point where they will make a decision less on their wants and needs and more just to have the question out of the way and to move on. 

As a series of experiments described my Mr. Teirney indicate, people become indecisive because they fear losing options.  The anecdotes provided in the piece demonstrate how mentally fatigued people are less likely to make trade-offs and will, instead, seek to preserve the status quo or eliminate the nuance the decision (i.e. compromise or make trade-offs) and make the decision one dimensional.  The status quo is not always the best decision for the situation, but it has familiarity in its favor.

The article is fascinating for a lawyer because our clients have undoubtedly been through a “Rubicon”-like scenario as described by the scientists Mr. Tierney’s interviews.  After repeated analysis, decision-after-decision, negotiation, explanations, more decision-making, it is not surprising that a client at 4:30 p.m. is more amenable to settlement, than he was at 8:30 a.m.  They can feel worn down.  That is not to say that the decisions are wrong, but the science indicates that the decision-making has changed as the mental fatigue increased.  Lawyers are not immune to this physiological effect, either.

There is no real “cure” to ego depletion, merely a few things to mitigate its effect. Ultimately, when a client is faced with an important decision late in the day, the relationship between the attorney and the client will be a critical element to ensuring the “right” choice is made and not just “a” choice is made.

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As lawyers we are commonly asked to forecast judicial outcomes.  What will a court do given a stated set of facts?  Of course, it is rare for facts to be the same in the eyes of two adverse parties but even when the facts are agreed, lawyers and judges sometimes cannot agree on the law.  Thus begins the story of Carl Barrack and his suit against Sodexho and the hospital that treated him.

This is not a family law case but the November 23 ruling of the Superior Court has implications for family law and all other forms of civil (non criminal litigation).  In this decision the Superior Court reversed itself and a prior ruling by a trial court in Cumberland County.

Carl Barrack sustains injuries when a chair he was sitting in suddenly collapsed.  He sued the business where the chair was located and the physicians who treated him.  Under rules regulating pre-trial discovery it is fairly common and understood that the defendants he sued for his injuries are entitled to secure copies of his medical records.  In this case the defendants did precisely that. The rules allows Mr. Barrack and his attorney to object any subpoena issued by other parties to the case.  In this case the demand was for all records relating to Mr. Barrack.  It was directed to the treating physician’s employer, a hospital.  Because this was fairly routine and otherwise not the subject of objection by Barrack, the hospital produced the records of the treating physicians to the extent they reflected what was Mr. Barrack’s course of treatment from the time of admission.

When it published these records in accordance with the subpoena the hospital noted that Barrack’s physician had been identified as Mr. Barrack’s expert witness concerning his injuries and that records of reports and correspondence generated between the treating physician and Barrack’s lawyer were not being produced because they were not medical records concerning treatment but expert opinions related to either the nature or extent of Barrack’s injuries.

The defendant’s were not content with this answer.  No objection to the subpoena had been filed.  Therefore, they asserted that any objection was waived and that the trial court should compel production of all records including correspondence between the expert and Barrack’s attorney.

The trial court agreed despite the argument made by Barrack’s attorney that communications between a lawyer and his client’s expert were not permitted under the law.  The matter was appealed to the Superior Court which heard the case because it involved an assertion of privilege which, if not heard could forever harm the Plaintiff’s case.

A three judge panel of the Superior Court agreed with the trial court largely on the basis that the interests of justice should permit open discovery of how expert opinions had been formed.  This was contra to wide held understandings in the legal community and certainly many lawyers and experts held candid correspondence in their files concerning how an expert opinion was received.

Because this was so controversial, the parties sought immediate review by a nine judge panel of the Superior Court.  That request was granted in November, 2010 approximately sixty days after the three judge panel of the same court affirmed the trial court.

This panel decision prompted tremendous controversy.  The prevailing view had been that communications between a lawyer and the expert witness were not subject to inspection or inquiry. Many litigation attorneys trembled in fear that communications that they had made in pending cases with experts would now be subject to scrutiny.  These letters had been written before Barrack I was decided.

The case was complicated by the fact that the expert was also the treating physician.  It is clear that the physician’s treatment records are subject to review in a case for personal injuries.  But the use of the same physician as the expert witness is more the exception than the rule in this area of practice.

The decision is Barrack II reversed the panel decision and is a strict construction of Pennsylvania Rule of Civil Procedure 4003.5. That rule strictly limits what access a party to litigation gets to another party’s expert. The entitlement set forth in the rule is to either answers to interrogatories regarding who the expert is and what is the substance of the expert’s findings or a copy of the expert’s report. Anything beyond that is secured either by agreement or through a separate court order based upon cause shown. Pa. R.C.P. 4003.5 (a)(3). Had the Supreme Court intended for litigants to secure more by right, they would have made the rule more permissive.

The argument was asserted by the defense attorneys that the plaintiff’s failure to object to the subpoena was waiver of the rights set forth under the rule. The Superior Court rejected this as well noting that when the subpoena was issued it was not clear to the party issuing it that the physician had a dual role as both treating physician and expert witness. The plaintiff was within his rights to assume that the discovery material would be limited to treatment records.

The decision is in a civil case but it has direct bearing on family law cases involving experts of all stripes. An expert report in family law is governed by the same rule as in personal injury cases.

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We tend to think that the use of computer software available on the internet could not possibly result in criminal charges brought against the party using it.  But on Friday October 7 a Court in Delaware County found a man guilty of using Eblaster “spyware” to intercept his Father’s electronic mail because he did not approve of his father’s social relationship with a woman.

We have noted earlier that Pennsylvania has a highly restrictive wiretapping law. The statute is many years old and as such, has not kept pace with explosion of electronic equipment and software intended to capture written messages whether published as email or text messaging. But, suffice to say that if you are using a device to intercept any form of electronic communication, you are in territory where you may be committing a crime no matter how pure you perceive your motives. I f you feel that you must do this for whatever reason, it would be wise to consult with an attorney familiar with both state and federal laws governing these subjects before you begin your project.

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A recent Superior Court decision in a criminal law setting may have broad implications for civil cases as well, including those decided in family law settings.  In Commonwealth v, Koch, a man was charged with possession of marijuana with the intent to deliver.  At the time of his arrest he resided in the same household with his sister and another adult. The arrest resulted from a warranted search of the household where the police seized quantities of marijuana and two cellular phones.  Text messages were taken from the phone and transcribed.  The messages on the phone are what formed the basis of the charges relating to distribution of the illicit drugs.

When the cell phone was confiscated the defendant acknowledge the phone to be her device.  The officer then downloaded the text messages, some of which he interpreted to be related to delivery of illegal drugs.

At trial the defendant sought to exclude the text messages because they had not been authenticated as her messages even though downloaded from her cellular phone.  The theory behind this is that it is possible for other individuals to log on to a telephone or computer of another and make use of it for their own purposes.  What gave this theory more strength was the fact in some of the messages recorded on defendant’s phone the defendant was referred to in their third person; something most people don’t do themselves.

The trial court admitted the text messages as properly authenticated and the defendant was convicted.  This appeal followed.  The Superior Court began by noting that text messages are electronic documents and subject to authentication before they may be admitted for the truth of what they contain.  Where no witness can be found to authenticate the document by saying he or she saw it created or published circumstantial evidence may suffice.  Some times documents (electronic or otherwise) can be authenticated by their own content or because the facts related are known only by the sender.

In this case the Court noted that it was not uncommon for people to have access to the electronic transmission devices of others.  The majority of state appellate courts that have examined this issue have decided that the fact a message is identified with a unique email address, does not, without more allow its admission as a statement by the holder of the email account.  Here the court noted that text messages, unlike email, are unique to the cell phone from which they are transmitted.  An email can be published from almost every computer.

The prosecution conceded that not all of the text messages came from the defendant even though it was clear that they did come from the defendant’s phone.  This appears related to the texts referring to defendant in the third person.  In this case while the prosecutor could show that the defendant had physical proximity to the phone at the time the arrest was made, this alone was not sufficient to render the content of the message as authentic.

In most cases parties admit to sending texts or email early on in the proceedings.  But without that admission, the burden appears to fall squarely on the party seeking to put them into evidence to come forth with a solid foundation linking the transmission to the person alleged to have made it. In this case, because that link was not made, the conviction was vacated on the charge of intent to deliver and a new trial ordered.

Although this ruling came about in a criminal case, the rules of evidence and Pa Rule 901 in particular affect all civil cases as well.  If the party confronted with the message acknowledges it as his or hers, authentication is established by the party.  But if the witness is not obliging, it will fall to the attorney to make the electronic transmission of whatever form “stick” to the person who owns the cellular device or electronic address.

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Protection from Abuse (aka “PFA”) Orders are Pennsylvania’s version of what is colloquially known as the “restraining order.” What makes the PFA unusual is that it is a civil action, but has a criminal component to it, namely the punishment for violating the PFA: jail.

One of America’s longest standing legal traditions is that a defendant cannot be tried for the same crime twice. This concept is otherwise known as “double jeopardy.” Recently, a Superior Court decision addressed PFA’s and the application of double jeopardy to a defendant charged with several violations of a PFA during one episode.

The opinion for the case of Hill v. Randolph (707 MDA 2010) was filed on June 1, 2011. In this case, the defendant had physically assaulted the victim after accessing her house and in spite of repeated demands that he leave the premises. Eventually, the police were called and he was charged with two counts of violating the PFA; one count of accessing the residence and a second count for the physical assault. Mr. Randolph was ultimately found in contempt of the PFA and sentenced to six months in jail.

On appeal, Randolph argued that the Court did not follow the legislative intent of the PFA statute by depriving him of a jury trial and convicting him on multiple counts from a single incident.

The Superior Court could not disagree with Randolph more. In striking down his appeal, they found that there is nothing in the PFA statute precluding the trial court from allowing the prosecution of multiple contempt charges or the prosecution of the crimes as contempt rather than a general criminal prosecution.

Moreover, the PFA statute considered the Constitutional rights of defendants and allowed for the prosecutor, in this case the Lancaster County D.A., to utilize the PFA statute to quickly and legally send a violent offender to jail for in excess of six months.   Double jeopardy did not exist where multiple criminal actions occurred in a single episode, while the two crimes were two distinct acts and did not merge together for a single six month sentence, but stood on their own.

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Each year I get phone calls from clients around the tax filing deadline asking for advice regarding tax filings.  First of all, your attorney likely is not an accountant and certain tax issues need to be discussed directly with an accountant.  However, there are some important things to consider when doing your taxes during a separation and/or divorce proceeding.

The first question is how are you going to be filing - married filing jointly, married filing separately, etc.  If you are still married on the last day of the tax year then you can file married filing jointly.  If you are filing separately, the second question becomes, who will be claiming the children?  Typically, the parent who has the children the majority of the time gets to claim the dependency exemption. However, the court has discretion to allocate the dependency exemption to the non-custodial parent wherein it would result in a higher net income to that party.  Of course, the parties can always agree to share the dependency exemption, and to do so, they would have to fill out, sign, and file the appropriate federal tax form.

It is important to note that if one party's income is not documented you should be cautious about signing and filing a tax return with that person.  An attorney can prepare an indemnification form to help prevent financial liability, but the Court could possibly hold your spouse to the income reported on the tax return for purposes of support because you signed off on the "income" - meaning your support award could be less.

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In October, 2010, Governor Rendell signed into law Act No. 85 which amended Title 15 and 20 of the Pennsylvania Code to address the death of a party during divorce proceedings. Previously, the Divorce Code was amended to reflect the fact that if a party to a divorce dies after grounds have been established, then equitable distribution is to proceed as normal with the decedent’s estate stepping into the shoes of the deceased party and that the Court should apply the normal equitable distribution factors in deciding the case.

In updating the Decedent’s Estate and Fiduciary’s Code, not only is this area of law reflective of the current Divorce Code, but it also spells out more specifically for estate purposes the manner in which a divorcing party’s estate is to be distributed during litigation. Specifically, Title 20 was amended to reflect the fact that a spouse will have no right or interest in the real or personal estate of the other spouse if they die during the course of the divorce proceedings and after grounds have been established for the divorce. Furthermore, Section 2507 now reflects that any provision in a party’s Will that favors or relates to that party’s spouse shall “become ineffective for all purposes unless it appears from the Will that the provision was intended to survive a divorce…” This Section goes on to give exceptions to this rule, including situations in which the parties are divorced prior to the creation of the Will (which would reflect specific intent to allow the benefit to pass to the ex-spouse) or if the provision was specifically intended to survive the divorce. 

Furthermore, if there is a conveyance that is revocable by a conveyor at the time of that person’s death that favors or relates to the conveyor’s spouse, this conveyance will become ineffective if the conveyor dies during the course of the divorce proceedings, no Divorce Decree has been entered, and grounds have been established.  In other words, if a spouse dies and has designated the other spouse as the beneficiary of a life insurance policy, retirement plan, or other type of asset, that spouse may not receive the proceeds from those accounts if a Decree of Divorce has been entered or the divorce proceedings are pending. The exception, as with previous sections, is that there must be language to indicate that the payments were intended to survive the divorce. The practical application of this provision is that a codicil to a Will or revised benefit designation form is no longer necessary to preserve this benefit from being distributed to an estranged spouse; the Code now severs the passing of that benefit to the estranged spouse, unless the conveying spouse specifies otherwise. As such, a spouse who has beneficiary designations will find them nullified if the other party dies while the divorce is pending. The beneficiary designation will be declared ineffective unless specifically intended to survive the divorce. 

Though the estate code may offer safeguards against assets being passed to an estranged spouse, it does not diminish the importance of changing the beneficiary designation early in the divorce proceeding, particularly if grounds for divorce – the triggering event for the Divorce and Estate Codes – have not yet been established. Consult with an attorney to determine what can be done to ensure that your benefits pass to those heirs who reflect your present intentions rather than past intentions. 

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In recent weeks we have been confronted with a number of instances where a person has co-opted a spouse’s or a child’s cellular phone or other form of Personal Digital Assistant (PDA). They have done this for the purpose of snooping to find out what the other person is doing. In some instances, the motivation is pure. But purity of motive does not constitute a criminal defense. For under Pennsylvania law it is an offense to obtain access to a wire or electronic communication while it is in electronic storage unless that access is authorized. Doing so has potential criminal and civil violations.

The law is complicated and the case law has set forth some unusual exceptions. But plainly, one tampers with this data at some risk and if it is that important one is best advised to proceed in consultation with an attorney well versed in both the federal and state wiretap statutes and with their associated case law.

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There are two reasons family law will always be a busy area of practice.  The reasons are that there are two subjects we do not teach in school: conflict resolution and money management.  If people could manage their money or the conflict in their lives, the divorce business would be in for a major downturn.

Practical financial advice is hard to come by.  And we say this with some authority because we have been looking for professionals who understand household finance.  Yes, there are thousands of publications out there that will tell you how to ladder certificates of deposit or dollar cost average your way into index funds.  But, how much you spend on a car or an apartment often determines whether you have any money to invest at all.

Ironically, we found some sensible and practical advice in the September, 2009 issue of Glamour Magazine.  No kidding.  Wedged in between Jessica Simpson’s views on men and three flat belly secrets we found an article by Sophia Banay supported by a woman named Galia Gichon who founded something called “Down to Earth Finance.”  The magazine is worth buying for all of the advice but the segment we particularly liked was the part discussing how to budget a $50,000 income.  Gichon breaks down expenses into four categories. She takes the budget and converts to monthly income of about $4150.  She appears to allow for income taxes although that number is not discussed.  But her breakdown is divided between:

    Fixed expenses that don’t change monthly                         $1665 a month

    Discretionary living expenses                                             $830-970 a month

    Retirement savings                                                            $417 a month minimum

    General Savings                                                                 $140-280 a month

Gichon comments that fixed expenses including rent, utilities and car payments should not consume more than 60% of your net income (gross income less income taxes).  She suggests that rent or mortgage payments should not exceed half of the fixed expense budget, although this can be a tough assignment in many urban parts of this country. But if that is where life takes you, the answer may be that you don’t drive the same car or limit your discretionary expenses.

Obviously, it is also possible to forego general savings, especially in a world where you are already saving for retirement.  The article suggests that discretionary expenses be limited to 30% of net pay.  This is where the weak tend to falter at the altar of clothing stores, restaurants and Starbucks.  Another contributor to the article, Maria Bartiromo of Closing Bell on CNBC sagely offers that you allow yourself a day before making any major discretionary purchase.  Time afford perspective and you may actually discover that television is almost as enjoyable on the 30 inch flat screen even though the 42 inch beckons.

The article also addresses the subject of debt.  In the past the standard advice is that you need to save three to six months income to cover you for the “rainy day” of illness or unemployment.  Today, consumer credit may fill in the gap, but we are finding that many people are already using their cards to fund expenses they can’t afford long before the rain day ever comes.  These are folks who simply cannot survive if a crisis emerges because they are already deep in high rate debt.

The goal is to budget but before you can intelligently budget you must first be thoroughly familiar with what you bring home and what you currently spend.  It is not a pretty task but people who want to have money when they stop working had better address the question sooner rather than later no matter what their marital status.

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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.

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A Client calls you at midnight obviously distressed. It is your observation that the client may have taken prescribed drugs which she has now combined with some alcohol. She claims that she is anxious as a result of Husband’s abusive language and his daily barrage of threats. The parties have one minor child; and Wife is the primary custodian of him. Custody is an issue in the case. What to do? 

A good divorce lawyer is always a legal advisor first; but, at times, may also function as a priest, rabbi or psychologist. In a situation like this where custody is an issue and when the client may do something (potentially) “dramatic”, what is the responsibility of the lawyer? Should he notify the police? Call neighbors? Call the client’s relatives? Do nothing? 

The Cannons of Professional Responsibility state, in part, that a lawyer should not reveal information relating to a client except if he believes to the extent reasonably necessary that it will prevent certain death or substantial bodily harm. In this instance, after speaking to the client for over one hour on the telephone, the lawyer believed that there was no immediate danger and reasonably believed that certain death or substantial bodily harm would not likely occur. 

However, what if it was otherwise? If the lawyer called the police then that might be “the ball game” for the pending custody action (ending negatively for the client). If the lawyer didn’t call the police and misjudged the client’s mental health; and, “substantial bodily harm” resulted, then, everyone, including the lawyer, would be second guessing himself/themselves. Not a good situation! All that one can do is to exercise good judgment in the moment.

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Divorce ("Family") Lawyers are a strange breed.  Usually, they strongly believe in love, marriage, and protecting children in unhappy homes. Yet they spend their day giving advice to angry, sad, depressed or hopelessly in love clients as family ties are unraveling. It has been said that a good divorce lawyer is part lawyer, part psychologist and part clergy. A good divorce lawyer also is indispensable if you are contemplating a divorce (or, for lawyers, if your client is doing so).

Why not a commercial litigator? A personal injury lawyer? A tax and estates lawyer? Not because you will save money—because you will not! An experienced divorce lawyer will already be aware of the issues likely to arise in your case. There is no learning curve. This divorce lawyer knows the court rules and the court personnel. She knows the other practitioners in her area of expertise.  She knows the best appraisers (real estate, jewelry, pensions, etc.), the best therapists, and the best tax lawyers for this case.

Your divorce lawyer also brings certain unique skills to the case. He negotiates in a way that is designed to lessen antagonism with your child’s other parent, while still vigorously protecting your rights. He gives you advice that is geared to your family situation, not just your financial needs. Your divorce lawyer is experienced in custody issues, including counseling, scheduling, abuse and other areas that commercial lawyers do not handle.

If you have a great lawyer who is not a divorce lawyer, she/he can still be involved in your case as an advisor. Good lawyers and good friends should always be part of your team, but the coach needs to be a divorce lawyer.

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Like most litigants, the end result and the cost of legal representation are among the most important concerns of anyone involved in a family law dispute. With these concerns in mind, clients frequently ask me if there is anything they can or should be doing to reduce the time I need to spend on their case or to help move things forward. The answer is a resounding “Yes!”  Here are 14 tips on how to be a good family law client and, at the same time, help your attorney achieve the best possible result without incurring excessive cost:

1. In advance of the first meeting with your attorney, assemble as much relevant documentation as possible. For instance, in a typical divorce case, this would include (at a minimum) complete copies of recent tax returns, pay stubs for both you and your spouse, a detailed list of all assets and liabilities, and any legal paperwork already filed and/or served upon you.
2. Speaking of documentation, organize every piece of paper that you give to your attorney.  Documents should be stapled, labeled and assembled in an orderly fashion.  Keep in mind that your attorney and his/her staff will do whatever is necessary to organize the documentation that you provide to him/her if you don't do so. It will, however, take time and cost money.
3. Keep a detailed diary of all significant events pertaining to your case and make sure to share copies with your attorney. A "Week-at-a-Glance" calendar often serves this purpose well.  This may be especially important in a custody case.  Your memory may fade with time, but a well-kept diary can be used to refresh your recollection prior to and/or during a hearing.  Additionally, your attorney can use your diary to assist in preparing your testimony in advance of a hearing.
4. A picture is worth a thousand words.  Besides documenting things in your diary, document what you can with photographs and/or videos.  For instance, if you decide to move out of the marital residence, take photographs of the condition of the residence and all property that you left behind.
5. Ask questions.  There is no such thing as a stupid question.  More often than not, questions from clients are highly relevant and serve as a basis for helping to frame out the issues and develop strategies.
6. If you need to discuss non-legal issues with someone, you may not want to call your attorney.   His/her hourly rate is probably much higher than a therapist's, and the therapist probably is better equipped to handle the issue.  While your attorney may be a very good listener, it will be to your economic and emotional advantage to discuss non-legal issues with your therapist, family members, friends, priest, rabbi, pastor, etc. 
7. Do your best to pay your attorney’s bills on a timely basis.  If you cannot pay a bill within a reasonable amount of time, call your attorney and ask to work out some payment arrangements.  If you are making a genuine effort, most attorneys will be understanding and work with you.
8. Promptly respond to calls and inquiries from your attorney. If it was not important, your  attorney would not be contacting you. Furthermore, if you are not being responsive to your attorney, he/she will have no choice but to spend his/her time and your money trying to get a response. 
9. When you leave a message for your attorney (either on voicemail or through a secretary) leave your phone number and the time when you will be available to speak. While your attorney likely has your number, it will take less time for your attorney to call you back if he/she does not have to find your number. This is especially true if your attorney is not in his/her office. 
10. If you have left messages for your attorney and have not received a response in a reasonable period of time, realize that there is probably a good reason why he/she has not returned your call (i.e., tied up in court or meetings, or handling an emergency situation). If the reason for your call is of an urgent nature, do not hesitate to explain the situation to your attorney’s secretary and/or ask if you can speak with another attorney in the firm. If your call is not urgent, ask your attorney’s secretary when she expects the attorney to be available so that you can call again or ask if an appointment can be placed in the attorney’s calendar for a phone conference. 
11. Do not believe everything that you hear from your spouse, family and friends as it pertains to your case and the law. Even though your spouse may act like he/she is trying to be accommodating, the reality is that he/she is likely out to get the best possible result for himself/herself. Similarly, realize that every case is different. Just because your friend’s cousin got a particular result does not mean that you will get a similar result. 
12. Do not sign or agree to anything without first speaking with your attorney. Attorneys are usually in favor of parties speaking and trying to reach amicable resolutions between themselves. An attorney, however, can and will help you determine if the terms discussed are in your best interest. There is nothing wrong with telling the opposing party that you need some time to think about it and will get back to them after speaking with your attorney. If the opposing party is pushing you to sign something on the spot, be suspect. 
13. Be discreet and resist the urge to deliberately annoy or antagonize your spouse. If you do or say something that you know will annoy your spouse, be prepared for appropriate retaliation. Also be prepared to pay your attorney who will, no doubt, get a call from the opposing counsel when your spouse calls to complain about your behavior. 
14. Last, but not least, be candid and truthful with your attorney. Attorneys do not like surprises. If your Attorney is well-informed, he/she can be fully prepared to deal with potentially damaging information if and when it is raised by the other side.
    

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I blogged last week about an article in the Philadelphia Inquirer that discussed a study that said it was good for your blood pressure to be in a healthy marriage.

Today CNN reported on a study that shows that one way to reduce your risk of death is to argue with your spouse.  Obviously, I'm being a little facetious, but the study looked at 192 couples over a period of more than 15 years, and concluded that spouses "who kept their anger in when unfairly attacked did not live as long as those who expressed their anger". 

The key is communication.  I am often asked what I believe is the main cause for couples divorcing, and the expected answer always is adultery.  But having practiced for 20 years, I really believe that the most common cause for divorce is a lack of communication.  People just don't talk about the issues, let them fester, and then spiral downward into divorce. 

Now there's a study that says divorce may not be the worst thing that happens to you if you don't express your feelings to your spouse.

The full article can be found if you click here.

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Although not really related to the practice of domestic relations law, I read an article in the Philadelphia Inquirer on March 21, 2008 that reported on a study  conducted with respect to the effect of a good marriage on blood pressure.  The results were that happily married people had the lowest blood pressure, followed by single people.  However, those in a stressful marriage brought up the rear.  It was not a huge study (204 married people and 99 single adults), but interesting nonetheless.

Click here to read the full article in the Philadelphia Inquirer.

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I work very closely with my secretary.  She is my “left and right hand”.  I could not be the attorney I am without her.  And I know, because there was a period of time when she was not with me.  In any event, I asked her to take a shot at a blog regarding the misunderstandings clients may have when it comes to her duties and responsibilities. In the spirit of the New Year, and as a type of New Year's Resolution, here is her “partially tongue in cheek” response:

1. Clients should not ask me to answer legal questions. I will relay all of your messages to my boss, but I can’t answer legal questions. The title “Legal Secretary” does not mean I can offer advice.
2. I give my boss all of the clients’ messages. Clients will not get a faster response if they leave 50 “Call me back” messages as opposed to one. If he hasn’t called you back, it means he’s in court or a meeting.
3. Please don’t ask me to take down a two page message. While I am sympathetic to what all of our clients are going through, I cannot possibly relate to my boss the detail of an incident. Another option would be to leave him a detailed voicemail.
4. Please do not state to me that you think the attorney is not getting his messages. I give him every message. If you think he is not getting the messages, you think I am not giving the messages to him. I really do.
5. Thank you for being polite. I know this is an emotional time for you and speaking with your attorney probably brings up a lot of emotional issues, but I appreciate that you take the time to be polite, as I will take the time to be polite to you also.
6. Call me by my name and let me know if I can do the same. I usually get introduced to our clients at their first meeting with my attorney, but I do not always feel comfortable calling people by their first names. If you feel it is appropriate, please feel free to tell me that I may call you by your first name. And it makes me feel good when you remember my name.
7. Leave your phone number. I know I may ask for your number over and over and over.  I am not trying to hassle you. We have your number in the computer, but we get very busy and, especially if the attorney is returning your call from out of the office, it helps to have the number with the message.
8. Last, but not least, don’t hesitate to send me flowers. Only kidding!!! But, if you think I did a great job, please tell me so. If you think I messed up, please tell me that also so it never happens again.

I hope that none of my clients are offended by this list.  But I think that the purpose of a blog is to offer different perspectives, and who has a better perspective on the relationship I have with my clients than my secretary.

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I have been practicing family law for over 26 years.  To ease the pressure of this practice, I resort to making rhymes about my work.  Here is one dealing with Prenuptial Agreements.

I DO

Come live with me and be my bride

To acquire an estate, to equitably divide.

Without regard to marital fault,

As well as those trinkets stashed away in the vault.

Custody of the children is our paramount concern,

For what is in their best interests we must discern

‘Cause in our state of holy matrimony,

One is also entitled to an award of alimony.

Perhaps for life, or for limited duration,

What is fair and reasonable requires explanation.

A mutual compromise is the best solution,

If not, our lawyers will guide us in the dissolution.

With endless anger, grief and fees,

The cure for this illness is worse than the disease.

So, now my love, be not remiss,

In this your opportunity for wedded bliss.

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In a recent decision, the Superior Court of Pennsylvania found that siblings not just spouses may be subject to abuse and, therefore, afforded the protections set forth in the Protection From Abuse Act in Pennsylvania (the “PFA Act”). 

In Custer v. Cochrane, 207 Pa. Super. 290 (filed September 25, 2007), the parties were siblings who were both employed in the family business and worked together for over 35 years. One sibling was the Office Manager and served as Secretary/Treasurer of the corporation, and the other sibling was the President of the corporation.  The allegations made by the sister were that her brother made verbal and physical threats, and that there actually were incidents of physical violence at the business.

In ruling that there was abuse and that the sister was entitled to protection under the PFA Act, the Superior Court rejected a prior line of cases which held that abusive behavior between siblings related to business was not subject to the PFA Act, as the parties did not reside in the same household.  The Superior Court noted that the definition of those entitled to protection under the PFA Act had been expanded by the legislature and that even though these parties were not members of the same household, they were related by “consanguinity” and that the PFA Act now encompasses relationships outside the strictly domestic sphere.  The parties were more than simply feuding business partners.  They were siblings linked by a biological relationship; and, that, a sibling seeking protection from the other because of physical violence (if justified) would be protected pursuant to the PFA statute. 

This case is striking in that it expands the protections afforded by the Act.  It also amplifies the fundamentals of the Act in that individuals are not allowed to redress their wrongs by threats, abusive conduct, or other actions (threatened or actual).

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Couples planning to marry often want to know if they need a Pre-Nuptial Agreement (also known as an Antenuptial Agreement). One may ask their estate or corporate lawyer what he or she thinks and the answer may be "yes" in many situations, but three very common ones are if:

1. It is a second marriage for at least one of the spouses and there are children of one or both people who will inherit instead of the spouse, 
2. If there is an existing business to be kept out of the marriage, or 
3. If the parties about to marry do not want to share their assets or the increases in value of those assets after they marry. Frequently, people want to protect their homes or their retirement accounts for themselves or their children.

If the parties fit into these general categories, they may benefit from such a Pre-Nuptial Agreement.

For such an agreement to be valid in Pennsylvania, there must be full and fair disclosure of all of the assets and liabilities owned by each party and a knowing waiver of rights without undue duress. Duress in Pennsylvania is the threat of physical force, not one party saying to cancel the wedding unless the document is signed. Although not required, the best way to ensure that these requirements are met is for each person to have their own lawyer, to sign such an agreement at least 30 days before the wedding, and to have all the assets, their values, and the basis for the valuations, listed in the document. Once properly executed, the document is a contract, the same as if you were buying a house - and its enforceable.

If all of this sounds too expensive or too complicated, the chances are the parties do not need the Pre-Nup!

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Prior to today, all of the posts on the Fox Rothschild Family Law Blog have been authored by me.  But as of today, I am proud to welcome many of the other fine lawyers in our group as bloggers.  The posts will be insightful, intelligent and will provide a resource for clients, practitioners, and anyone else interested in family law issues.  Check back often - and if you have any questions, or would like to see blogs on a specific subject, send me an email.  No guarantees, but with the breadth of experience in the Fox Rothschild Family Law Group, we will be able to address many interesting issues.

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Today was the first Executive Committee meeting of the Nicholas A. Cipriani Family Law American Inn of Court.  The Inn is being named in honor of Judge Cipriani, one of the most respected jurists in the history of the Philadelphia Family Court.

The purpose of the Inn is to promote professionalism, ethics, camaraderie and education among the bench and bar.  There are various categories of membership, and the Inn is seeking members at all levels of experience. 

If you are interested in reading more about the American Inns of Court, the website is www.innsofcourt.org. 

Or email me directly, and I'll be happy to answer any questions.  If I can't, I'll forward your email to the right person so that you can get the information you need.

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The new client walks in the door, obviously nervous about his or her case being the subject of a public trial in the county courthouse.

The first thing I tell them is that most third parties are not interested in their divorce case.

The second thing I say is that most of the cases I handle resolve without the need for substantial litigation, although there may be a hearing or two along the way.

However, most recently I have found that I am trying a few more cases than usual, and I'm winning.  I'm not saying that so that readers will think: I've got to have Charlie Meyer as my lawyer.  My real point is that, while I have written in the past on the importance of professionalism and civility in the practice of law, especially in domestic relations practice, I now am finding that lawyers are taking positions they cannot possibly defend and upon which they cannot prevail.

I am reminded of the time when, as a young lawyer, I met with an "experienced" (read "older") lawyer in his storefront office to discuss a support matter.  It obviously was a case which would be decided under the Guidelines.  But to my surprise, his position was that "he didn't use 'those' guidelines".  Needless to say, we went to court, and the guidelines were applied.

This story is illustrative of what I am finding more and more in my practice.

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