17 Million Americans watched the Oprah interview on Sunday night.  That’s six million more than watched the opening of Round 2 of our own President’s impeachment.  The airwaves today are exploding with controversy as various sides line up to condemn the House of Windsor or its recently exiled couple.  This piece is not about who won or lost. It’s pretty clear that there are only losers in this battle.  As I watched the interview what resonated for me was how often I have witnessed this warfare in a lesser form.

The House of Windsor is a family business.  When the Stuart monarchy crapped out in 1714 the Brits had to import a German replacement in King George I.  The Family carried the name of Saxe Coburg and Gotha until the end of World War I when the embarrassment of being attacked by Queen Victoria’s own grandson (Kaiser Wilhelm) prompted a change to the anglicized House of Windsor.  Then the royal family lived through the humiliation of Edward VIII, who quit after a year to marry a Baltimore divorcee.  During World War II, Queen Elizabeth’s parents changed the game by staying in London through the blitz and making their children perform public service.  Yes, they live fabulous in fabulous castles.  But unlike their worst predecessor, George IV, the modern Windsor’s have largely performed admirably as public servants and created a Windsor “brand” that is widely regarded as honorable in spite of the occasional problems created by Princess Margaret, Fergie and now Prince Andrew.

Diana Spencer and now Meghan Markel married into the family business without a clear vision of just how demanding and, to some degree demeaning, that business can be.  There are those who dismiss Spencer and Markel as weaklings or worse; brats, because they could not take the “pressure” of living in castles, riding in limos and sailing on 400’ yachts.

What most of us “commoners” fail to realize is that, while immense wealth does provide every convenience and a host of amenities, it does not spare our “betters” the indignities of communicable disease, infidelity, mental illness, drug addiction or any of the other frailties to which many humans fall prey.  It is easy to fall prey to these problems when living a life of privilege, especially when the family business takes precedence.  Queen Elizabeth II and her late mother set a well-nigh impossible standard.  At age 101 the Queen Mother insisted on standing for the national anthem at a public event even though she had just fractured her pelvis.  Twenty-five days before her death in March 2002, she attended a lawn party for the “Eton Beagles.”  One must concede that she did this out of duty to King and country; not because she missed picnicking with the hounds.

Those who have been born to or married into a family business will fully understand what they saw on television in the Oprah interview.  They may recall the BBC interview of Harry’s mother in 1995, two years before her death.  Last year’s interview with President Trump’s niece recalled how her grandfather (Fred Trump) dismissed his own son as a loser because Fred didn’t have the conviction to make the family business the epicenter of his life.

Lawyers practicing family law see these casualties every day.  Innocent people fall in love with a person who is part of an existing family business or one who decides that their vocation is their reason for being.  The business can be as intoxicating and as addictive as any narcotic.  And, in many cases it produces wealth that seems to compensate for certain types of dysfunctionality.  Nonetheless, wealth and happiness are equivalents right?  Unfortunately, the experience of Diana Spencer, her son Harry and his bride Meghan demonstrate that is not the case.

Like Charles and Diana, Meghan and Harry were to have another fairy tale marriage.  Think what you will of Wallis Simpson, but she persuaded Edward VIII to abdicate and enjoy their marriage for 35 years, until his death.  In a sense, Markel (another American) persuaded another royal that their relationship was more important than the family business known as the House of Windsor.  To family lawyers, the pain of all those involved is clear.  The Windsor’s feel betrayed by the crewmember who has left the ship.  But inwardly they also understand the toll that living in a fishbowl takes on anyone who aspires to a normal life.  Not all of us are equipped at age 102 to answer the call of the Eton Beagles, even if we have a Rolls Royce Phantom to get us there.

A MarketWatch.com web feed on March 7, 2021, brought an article published under The Moneyist.  The format is question and answer and the inquiry was from a woman marrying an older man who approached her three days before the wedding with a prenuptial agreement.  Needless to say she is today married but coping with re-bound anger as she realizes that this was sprung on her just as the table settings and place cards were being set out at the reception hall.

Can something like this happen today?  In Pennsylvania and many other states, the answer is yes.  Some states have statutes stating that a late inning prenup is either invalid out of the box or presumptively invalid.  Here, your spouse can present the prenup as you approach the end of the march down the aisle.  If you sign and if you have a full disclosure of assets or you “waive” the disclosure, the trap has sprung and the agreement binds.

Any hope here?  Yes.  Step 1.  Shortly after you accept a proposal of marriage and well before you sign contracts for food and frolic, you need to ask some questions.  It can be an innocent question such as, “Are there any agreements we should put in writing before we marry?”  You may get the ridiculous or the sublime:  “I want at least six kids.” “My mother should live with us.”  We have previously recommended a ceremonial exchange of credit reports so there are no financial surprises.  However, if your intended lies to you and suggests no agreements are needed, you will know what you need to do when he or she reverses course and says a prenuptial is “required.”  If you go through with a marriage where your future spouse lied to you about such an agreement, lawyers won’t be much help.

The reader may realize, as the community learns of an impending marriage; as deposits are made to venues, caterers, photographers and printers, the pressure to “follow through” and execute a prenuptial agreement grows by the day.  Only the bravest individual is content telling a hundred prospective celebrants that there will be no marriage because the love of your life does not want to create any joint assets or has $200,000 of undisclosed premarital debt.  Credit reports are a painless ask, but perhaps it makes sense to ask and provide a balance sheet of what is owned and what is owed.  If your fiancé owes $20,000 in back child support, does that no merit some inquiry before you say “until death do us part?”  We have done several interviews with clients who learn of bad debt, back support arears, wage attachments and tax deficiencies days before their marriage was to be celebrated.

Circling back to the facts in The Moneyist inquiry, the request for the prenuptial came three days before the wedding.  In normal times, three days means friends and family are boarding planes, trains and automobiles headed toward a momentous event.  So, the agreement was signed to avoid the embarrassment of telling the world that this engagement was not an epiphany but a tragedy.  Can we blame the person who buckles and signs rather than risk humiliation by canceling the wedding?

We had a similar, but less draconian experience a couple years ago.  Happy young couple.  Both well educated.  One spouse was a recently minted professional who had a monumental amount of student debt.  The other spouse was the child of an immensely wealthy family and was a multi-millionaire in his own right.  The wealth was not in trust but the groom had essentially no control over the assets.  We advised the client of the dangers.  She responded that she understood but trusted her intended to do the right thing.

As lawyers, this is where the beach touches the ocean.  We are advisers, not managers.  The client said she felt comfortable managing the situation as her marriage evolved.  Our advice was, ok, but realize that for each year you live under the terms of this agreement, your wealth will probably never approach his and your power to eliminate or renegotiate this unfair agreement will decline.  Marrying into a bad prenuptial agreement is problematic.  Moreover, letting years go by where your spouse’s income and assets multiply and you chisel away at reducing your negative net worth will take a toll from which your financial condition may never recover.

Often this discussion ends with the less wealthy future spouse suggesting it won’t matter.  Who cares if my husband or wife is worth 10-20-30x what I have?  At ages 25-30, this seems an entirely fair question.  But if you are 50 with a net worth of $50,000 when your spouse is worth $5,000,000 and you are turned down to rent an apartment because you have no recent credit history, you then realize the damage a seemingly innocent prenuptial can inflict over time.

The Moneyist article on MarketWatch.com is more optimistic than we are about how to set aside these agreements.  They are just as binding if signed the day of the wedding as the month before. They are not subject to be set aside because they are draconian or unfair.  The Pennsylvania Supreme Court ruled 30 years ago that people have the right to make contracts; smart ones and not so smart.  Unfair contracts are no less binding than the fair ones.  So if marriage is in the air, make certain you clear that air by asking whether the marriage is one which will have “conditions.”  And if you are handed an agreement to consider in the days before your wedding, run, do not walk, from a spouse who has so little regard for you.

It is traumatic enough to decide to end a marriage.  Then there is the business of announcing the event to friends and family.  In an ideal world, couples would take the Jeff and McKinsey Bezos approach.  Press release from the couple sprinkled with words of kindness for each other.  While that’s an ideal approach, most of us don’t merit a press release.  In addition, rare are the cases where both spouses want “out” of a marriage at the same time.

Lawyers are often asked how to spread the word.  Truth is that there are many options and they are complicated.  Let’s start with the innermost circle.

Your spouse:  This almost always needs to be in person or at least by phone.  The most direct approach, “I met with a lawyer and I have decided to file for a divorce.”  Two aspects of this are important.  The first is that people rarely consult with attorneys unless something is quite serious and the word “filing” means it will soon become public.  Your attorney can do this for you by writing the vanilla letter saying, “Your spouse has asked me to initiate proceedings to end your marriage.”  That gets the job done, but doing it in person yourself makes it clear that you are very serious and not under the spell of the greedy lawyer.  It also may prompt some of the most honest conversations about marriage you will ever have.

People will sometimes ask if we can just have their spouse “served” by a process server.  Yes, it can be done and sometimes it must be done when a spouse is avoiding a divorce by trying to hide.  But process servers often create very embarrassing situations without even wanting to and that sends a message that the plan is to make things both public and messy.  If that is the plan, realize that dirt flies in both directions.

Your kids: ideally, both parents do this, although that suggestion is often met with this response: “Well, you’re the one who decided to destroy our family so I guess you can take care of this too.”  Ask your spouse to reconsider and note that you owe it to each other and especially the children to do this right.  However, if rebuffed, go it alone.  Just keep it simple and avoid lengthy justifications for your decision.  Little kids won’t understand and big kids already have their own views of why things have been so bad at home.  Parents are often shocked to hear teenagers respond to the “news” with, “You should have started this two years ago.”

Your parents and close personal friends:  Two schools of thought here.  It would seem the best way would be in person or by phone.  There is merit to that.  But, if this news will come as a shock to the recipient, perhaps the better approach is to make the announcement via email and promise to follow up shortly with a call.  This allows the recipient to absorb the shock of the event and be prepared when your follow up call or visit occurs.  Consider how you would respond if a call from a friend that you would expect to be routine starts with, “Hi, calling to let you know that I filed for divorce.”  Email also allows friends and family to collect their thoughts and then telephone you.  Those calls can be among the best you will get because these people care about you; may also care about your spouse and want to be supportive.  However, you will also learn that for many friends, the breakup of your marriage will be very unsettling for them.  Sometimes that’s because they perceived your marriage to be stronger than it was.  Sometimes it is because it prompts them to evaluate where they are in their relationship.

Ordinary friends and co-workers:  The co-worker aspect of this is more challenging.  It depends on how tight you are with the co-worker.  Ordinary colleagues don’t really need to be informed about this unless it will affect your work schedule.  Regular friends should be informed by email.  Again, in an ideal world, it would be nice if the message were joint but that often causes confusion as well.  The key thing here is to keep the message short and tight.  This should not be your chance to spill all the problems you have encountered that prompted your decision to leave a relationship.  Emails get forwarded and you can end up with an electronic war where you describe all that angers you and your spouse responds in kind.  This puts friends in the middle, and while some friends enjoy the middle, rarely do they like being there for long.  Email and Facebook are not a good place to trade insults or allegations.  It diminishes both you and your spouse.  Take the high road and hope that your kindness is met with kindness.  Nevertheless, if it is not, realize that no one wins a war conducted electronically.

People want to know about a life transition like divorce and separation.  Good friends will want to help you with that process.  Let them volunteer to help rather than be dragged into an acrimonious series of exchanges that make you and your spouse look petty.  Be wary of friends who want to take up the cudgel for you.  All too often, those offers of support are about your friend’s needs and not yours.

Communicate.  But be circumspect in doing so.

If there is physical abuse:  Be very cautious here.  Everything you write to friends and family is admissible in court.  Meanwhile, it may be provident to write something like, “An incident (or series of incidents) have occurred in recent weeks that have prompted me to file for divorce (or court protection).  Again, the emails, electronic or otherwise, are not places to air your grievances no matter how serious.

The county where I do most of my work has been “live” (mostly) since early June 2020.  That presents issues in its own right, but I have avoided the new trend toward “Zoom” proceedings until very recently.  Meanwhile, the legal continuing education community has devoted a lot of time to courses about how “Trial by Zoom” differs from its live equivalent.  I also have traded thoughts with a judge in rural Pennsylvania about his take on this brave new world of remote trial.

First, “Zoom” trial really is different from courtroom experience, in some ways good, most not. There is also change in what I will call “courtroom courtesies.”  I recently had a hearing where the husband issued a notice for my client to appear in court in person with documents he wanted brought to the courtroom.  No problem with that, except the following day he filed a motion saying he was out of state and wanted to appear by videoconference.  I don’t know whether his lawyer thought about it, but the implied message was, “I want my spouse’s butt in the courtroom for this hearing and I want her to bring documents when she arrives.  However, I really can’t get there myself so I would like to appear by video.”

When the hearing came, the big screen was lowered and husband “appeared” on a screen where his face overwhelmed the courtroom.  I can tell you that no one over age 30 looks good when their face is 2 feet wide and 3 feet long.  So there he was, 6 square feet of elderly face.  Husband and I are roughly the same age so I am no one to brag but I can happily report that my face was a mere one-foot square.

People on video cameras seem to have no appreciation for how they look on screen.  Most place the camera as if they are visiting with an otolaryngologist; you can see their sinuses. They also don’t appreciate that ceiling fluorescent lights cast a “Jesus like” pall over their appearance.  If you are Zoom candidate, take two minutes and move the camera on your computer to fix that before the lights come up or accept that you will appear either stupid or annoying.

In my first hearing, husband was in sunny Florida.  Despite his advanced age, he favored a shirt unbuttoned to just above the navel.  Once upon a time both witnesses and jurors were expected to wear “coat and tie for men, Sunday best for women” when appearing in court.  We have come a long way during my time at the bar.  Nevertheless, I still cannot reconcile myself to bare midriff witnesses.  It’s distracting at best, disgusting at worst.  I had remonstrated with my client before the hearing that coffee was not permitted in the courtroom.  But, if you appear by Zoom, coffee is the least of your offenses.  Smoke a cigar?  Down a beer?  If a party mouths off to a judge, what’s the remedy when the offender is sitting in his kitchen 1,000 miles away?

In my second Zoom hearing, we were all on camera because of the weather.  It started okay, although my worthy opponent was overwhelmed by the “aura” of the un-curtained window behind her desk chair.  The lawyers were invited to make their pitches and then the clients were invited to amplify and correct what the lawyers said.  If you are invited to such a proceeding, realize that the camera is never “off.”  In a courtroom, eyes have a lot of acreage to take in. Judges tend to focus on the witness in the “box”.  On Zoom, the lawyers, the clients and the jurist are all inside a 3×3 inch Hollywood Squares on the computer screen.  Looks of incredulity or disgust appear an inch away from the visage of the person testifying.  Those expressions can often eclipse what the witness is saying.  Courtroom lawyers are not strangers to hearing a judge say “Counsel your client’s reactions are distracting my ability to focus on the witness.”  That doesn’t happen on Zoom.  It’s not just distracting, it’s annoying and you will pay a price for it.

All drama gets magnified on Zoom.  At one point my client was asked a question.  Her answer was not especially telling.  Husband’s reaction was.  We had already experienced watching him down a cup of coffee in a way that Zoom made quite dramatic.  But when my client began to express her concerns about behaviors related to their child, husband decided it was time to stretch his legs, so we had a close up of his crotch.  In fairness, I don’t think that was intentional but it looked disrespectful.  Then he started to play with the computer camera.  In a way, this was quite effective to interfere with the process, as it’s tough for anyone to focus on what a witness is saying when the next computer screen appears to look like the Mars Rover landing.  You could be presenting the world’s most compelling testimony, but if my client or I decide to adjust the camera or stand up and make another pot of coffee, everyone’s eyes shift to the most unusual activity.

It’s not all bad.  Take the standard courtroom proceeding.  A judge is usually 6-8 feet away from the witnesses and observing them from a 90-degree angle.  On Zoom, it’s all “full frontal” and the opposing party’s visage is a mere inch away on the computer screen from the witness testifying.  In a courtroom, if you are sitting at counsel table your client can act pretty badly before a judge will notice.  On Zoom, your client’s expressions are every bit as apparent as the person testifying.  That can be a real problem for the lawyers, but a true advantage to the jurist.  I have heard fellow attorneys insist that they be with their clients in the same room when the Zoom proceeding occurs.  However, realize that if your client goes off on you at counsel table, the judge has a front row seat and that may be “on mike.”  It also means that you need to bring your best poker face to a Zoom hearing unless you want the court to see your facial views first hand.

So there are many lessons here.  However, in my communication with my friend the judge, we both lamented the fact that Zoom witnesses have no sense of the courtroom and the dignity it is designed to impart.  On the computer screen, the judge is the same size as the counsel and the parties.  There is no walk to the witness box; a walk that many witnesses have told me transformed their testimony because that walk made them realize how important the truth was in court.

Were I putting down odds, Zoom is here to stay.  Yet, it won’t fully replace live court.  Moreover, it has some very real advantages.  My concern is that, unless carefully employed, Zoom will dilute the importance and respect due live courtroom proceedings.  Perhaps the happy medium is for parties to submit video testimony rather than force judges to try to regulate the show “live.”  I see disadvantages in that as well.  But, courts have earned dignity because they demanded it.  In an age of raging incivility, the courthouse needs to remain a place deserving veneration.

These are difficult times.  Some parts of the economy have responded well to the pandemic crisis.  Others, especially those in the travel, leisure, and entertainment industries have experienced enormous financial challenges.  Sadly, this sometimes prompts desperate measures.  You should not become an unwary victim of desperate measures.  You are the best person to protect yourself from that.

Yesterday, a local attorney in suburban Philadelphia pleaded guilty to falsifying credit applications using the names and personal financial data of his wife and mother-in-law to tap an estimated $85,000 of credit, which he spent for his own amusement.  He had recently been convicted of taking roughly $90,000 in client money for similar purposes.  He will be sentenced for these crimes next month.  The crimes go back several years.  They are not related to the current economic crisis, thereby proving once again that crime can happen in good times.  However, desperate times (and many Americans are in desperate times) often trigger people to resort to desperate measures.  History has taught us that many times, the first draw on another person’s funds or credit is accompanied by the desire, indeed the expectation, that the taker will “make good” on the borrow.

The second lesson here is that certain vital information like birthdates, social security numbers, even telephone numbers and credit card data can permit theft as easily as the proverbial unlocked door.  In this case, the lawyer acted as his spouse and mother-in-law to open new accounts they never knew about at the time.  Yes, they are victims, and probably will secure release from these debts.  But, the stain of bad credit travels faster than a good reputation and it makes future borrowing a steep uphill climb.

A few years ago the judicial system embarked on a program to demand that documents filed in court be cleansed of data that could be used to steal.  The program is reasonably effective, although many attorneys forget to obliterate things like full account statements and social security numbers from documents filed with the court.  You can help with that process as well by taking action to remove/redact that data before you hand it to your attorney.  Realize that some of those digits need to be preserved because you may have four different accounts with a bank or a brokerage and they need to be distinguished.  Nevertheless, with rare exceptions, lawyers, their staff, judicial officers and the like do not need all of the numbers.  On those rare occasions when they are required, consider providing the information in separate communications.

This will be short, for once.  Divorce often involves one spouse buying out another from the marital residence.  Best advice was, and still is, home values are such that paying for an appraisal can be useful.  But of course, then there are all of the computer programs like Zillow that try to do it for you.

If your house is somewhat standard for your neighborhood, e.g., you live in a subdivision, chances are reasonable that you will find a comparable home that sold recently.  Until 18 months ago, the word “recently” would have meant in the prior 12-18 months.  Today, “recently” may mean in the past 12-18 DAYS.

The market appears to be every bit as hot as it was circa 1986, where people camped in yards waiting for the house to open to the market.  We just took on a matter where husband and wife had secured two appraisals in July 2020.  Their house is one of 40 or so in suburban West Chester.  The appraisers came in at $390,000 and $415,000.  When the client came to see us, we just ran what I will call a “Zillow Test” on the house and it came back at $520,000.

Zillow is an algorithm and that can be problematic.  So, we fished around to see if anything had sold in the neighborhood since July.  Indeed, two houses had sold within a quarter mile in the past 90 days.  One at $490,000, the second for $520,000.  All three homes were built circa 1964. All three with 2200-2400 square feet on lots of roughly a half acre give or take.

So look around if you are valuing your shack for sale to the spouse.  Because the market is so hot, a home near you may have sold before the sign got in the ground or you had a chance to see it.

Just about every divorce case involves a house and its corresponding mortgage.  In a small number of cases parties agree that dissolution of the marriage is also an opportune time to downsize the residence, but in most situations, at least one of the parties wants to keep the residence, even if just, “for a while.”

This is where complications can arise.  Certainly one spouse can transfer their interest in the home to the other.  Nevertheless, any such transfer comes “under and subject” to existing liens and encumbrances.  In most instances, when the parties acquired title to their home they did so subject a promissory note payable to the lender secured by a mortgage.  A mortgage is essentially a pledge of the home to secure the money due under the promissory note.

The promissory note is a “joint and several obligation.”  That means both borrowers agree that the lender has recourse against either or both of them.  So if I transfer my interest in my home to my spouse, it does not affect my duty to keep paying the old mortgage even though it’s no longer my house.

Needless to say, that issue needs to be ironed out.  Usually there is a property settlement agreement and it customarily has a clause stating that the spouse in the house will “indemnify and hold the other spouse harmless” from the obligations of that promissory note.  Understand that such a clause does nothing to assist the “out of house” spouse in the event that the spouse in the house stops paying.  That also means that many lenders look askance at borrowers who come knocking to buy a new house while they still owe money on the residence they left when in search of greener pastures.  In practical terms, if I sign an agreement transferring my home to my ex and she later stops paying the mortgage, I can expect the sheriff to come knocking on my door when the lawsuits are filed.  And my dopey “indemnification and hold harmless clause” is of no effect as a defense to the suit demanding that I pay the $200,000 still due on my now former home.  Reason; my old lender is not bound by your later agreement with my wife.

The clean solution to this dilemma is for the house to be refinanced.  A re-fi actually terminates the mortgage my spouse and I signed and substitutes a mortgage in my spouse’s name alone.  The promissory note spouse and I used to buy the home long ago is cancelled and the mortgage is recorded as “satisfied.”  My spouse walks away with a clear title (my transfer to her) and a note and mortgage in her name alone.  If she falls off the wagon and stops paying that new loan, I am clear of any suit because I’m not on the new promissory note.

Alas, as Ken Fineman, a mortgage broker with CrossCountry Mortgage noted in a recent Pennsylvania Bar Association seminar, the refinance business can be tricky.  Borrowers tend to think that a refinance is easy if the home has significant equity (market value less mortgage debt), but lenders don’t make money foreclosing on real estate.  They make their money by lending to people who have a history of paying their debts on time.  Home equity is a benefit but the real keys to a refinance are a solid credit history (of paying bills) and regular income.

Fineman discussed those two elements after noting that each lender has its own underwriting rules governing to whom they will lend and how much.  Often the trickier element of the refinance is the income history of the spouse who is getting the home in a divorce transaction.  This is also affected by what kind of loan the borrower is seeking.  FHA loans impose lower lending standards; however, the cost of the loan will be higher.  Non-FHA loans take the opposite approach.  Child support and alimony can be credited as income available to pay for the newly refinanced mortgage, but the lender wants to see not just an agreement but 3-6 months of actual compliance with the support/alimony obligation on the part of the person paying.

Payment history has recently been clouded by forbearances related to COVID-19 relief statutes.  If there has been a default but it fits within COVID-19 protections, lenders are looking for at least three (3) months of resumed payments before a refinance will move forward.  If there has been a bankruptcy, it isn’t usually possible to refinance until four (4) years after the case has closed.  If there was a short sale of property, that typically takes three years to “cleanse.”  Allowing a property to be exposed to foreclosure usually takes seven (7) years to clear for refinance.

Fineman’s takeaway was that the sooner there is contact with a mortgage broker in a divorce finance transaction the easier the process can be.  Mortgage brokers are the “guides” who lead borrowers through the morass of legal and underwriting rules.  He noted that there are times when he refers potential clients to consultants who advise clients on how to cleanse bad credit history and improve credit scores.  His lamentation was that potential clients often come to him too late in the divorce process.  Applicants often arrive with no agreement for support or payment history or with a credit history that could have been repaired but was not.

The truth is that in most cases, it becomes fairly clear early in the divorce whether one party wants the house and whether that aspiration is realistic.  The takeaway from this seminar was that once retention of the home becomes clear, it might be time to identify a mortgage broker or lender even though not all the terms of the overall settlement have been resolved.  The purpose would be so that support payment histories can be established and credit scores cleansed under the guidance of someone who knows what mortgage underwriters want to see.  To do otherwise is to risk that the refinance written so carefully into the property settlement agreement will not “fly” with potential lenders.  Bear in mind that few, if any, lenders are going to go to settlement on a refinance until all the terms of the property settlement are concluded and presented to the refi lender for review.  However, while we are all admonished to not let the cart go before the horse, this is one instance where parties should consult with lenders about whether the horse will be able to pull the cart when the credit and income histories are fully evaluated.

This is a slow news week in the world of domestic relations. For this lawyer only two Christmas crises and those easily resolved. Hollywood is obsessing over whether Jennifer Anniston’s holiday ornament with a Covid theme was insensitive. We know that at least 1,600 people who started the day with the ability to worry about that subject won’t have to grapple with it any longer as they will have died today from the disease.

The interesting subject for me today was at the corner of constitutional rights and adult authority. It is a case decided in Pennsylvania and headed to the Supreme Court of the United States. It ties into a subject we have written about before; that of free speech versus responsible speech in an age where the power to publish is governed only by the “send” button.

Our subject is a high school student we know only as B. Levy. She attends school in central Pennsylvania, not too far from Williamsport. As a freshman she was selected as a junior varsity cheerleader. Nothing unusual there except that in her junior year she did not make the varsity squad.

This did not sit well with Ms. Levy and it was accompanied by other life disappointments related to her softball team and her concerns about how she would do in those nettlesome exams that come about when you are a junior. In my day, these indignities were suffered alone. But, today we live in an age of social media, and Ms. Levy decided she would let the world or at least her 250 closest electronic “friends” have the benefit of her views. So, the social media application called Snapchat received a photo posted by Ms. Levy and a friend in which they are depicted with their middle fingers elevated and a caption that employed the four letter “f” word. The  “f” word was applied  to “school….softball….cheer [and] everything.” She then wrote a sentence of protest, which was as grammatically offensive as the four letter word was to refined sensibilities.

As you might have suspected, one of her 250 friends decided to dime out Ms. Levy to a coach at school.  The school district has one of those arcane policies that suggest students representing the school on their teams and clubs should have respect for their status as representatives and avoid “foul language and gestures.” The policies even noted that the internet was not an appropriate place to air grievances.

So, the school acted in conformity with its policy. The coaches imposed a one year suspension and the district approved it.  The parents of Ms. Levy, whose names are fully identified although the student is named as B.L., appropriately exhausted their appeals through the school district’s hierarchy. When they did not succeed, they filed suit in the United States District Court. They alleged that conduct of their daughter’s kind, when posted on social media off the school campus and not thereafter brought onto the campus (think protest signs or pamphlets although both are decidedly decadent in this century) is free speech protected by the 1st Amendment of the Constitution. In denying her the right to cheer with the team who had rejected her varsity entitlement and incurred her ire, the school district had deprived her of civil rights she had under the Constitution and the United States Code, 42 U.S.C. 1983.

The case was assigned to Judge A. Richard Caputo.  School speech cases are among the trickiest cases in constitutional law. The state requires students to attend schools, so kids are not there voluntarily. The schools are responsible for educating and to the best of their abilities “regulating” students. Those are incompatible forces from the start. And, case law regulating whether students could be required to wear bras or skirts below the femoral head have floated about since the 1960s. These cases also included speech such as whether one’s tee shirt can demean the President of the United States or the wrestling coach.

Judge Caputo decided that under prevailing law, speech of the kind offered by Ms. Levy to her Snapchat friends was protected because it did not invade school property. Thus, you can attack the character of the coach while wearing your tee-shirt in town but the school had the right to insist you dress “better” once the bus dropped you on school property.  Judge Caputo also observed that while school is mandatory but activities like cheer are not, public authorities couldn’t subvert free speech or other constitutional rights by requiring students to agree to abandon those rights as a condition for participating in extracurricular activities.

The school district appealed to the United States Circuit Court, which ruled in favor of Ms. Levy on June 30, 2020.  No fewer than eleven attorneys participated in the appeal, representing nineteen different constituencies including the American Civil Liberties Union, four school board groups and four groups of school administrators.

In affirming Ms. Levy’s right to her snapchat posting the Circuit Court relied upon a 1969 decision of the Warren Court in Tinker v. DesMoines Independent Community School District, 393 US. 503.  That case held that free speech rights are not lost at the school house door unless they interfere with the rights of other students to be secure or simply left alone. If speech on campus creates a risk of disruption it may be regulated but even then the risk needs to be balanced against the constitutional right. Disruption presents its own sets of problems as shown by the 2007 Supreme Court case, which held that students were not protected when carrying banners promoting drug use. 551 U.S. 393. Note that the 2007 decision in Moore v. Frederick was 5-4 with a very strange set of concurring and dissenting opinions.

Ms. Levy’s attack upon her cheer colleagues, her softball team and her school generally may be evaluated by a still more conservative US Supreme Court next year. The Court has not granted certiorari (appellate review) but the New York Times today reported that this is considered by constitutional scholars as a case of interest to a more conservative court.

In this case, the plaintiff is appearing through her parents because she is a minor. As a person who enjoys constitutional law, cases such as B.L. v. Mahanoy Area School District fascinate me. I am instantly offended by her vulgar behavior and wonder what lesson the child is to learn from a dispute where her offhand snapchat message is now evaluated by the New York Time’s Supreme Court correspondent. Meanwhile, in 1968 I lived through whether “girls” could wear “pants” in school and as a student council president in 1973 I secured the rights of students to smoke cigarettes on school property. (Hmmmm…)

But, suppose Pere et Mere Levy (parents of B.) were separated and did not agree about whether their daughter should be teaming up with the ACLU and the Pennsylvania Center for the First Amendment? Suppose one parent thought a one year suspension was just for a published attack on her coaches and fellow cheerleaders? Suppose the parents agreed that her speech should be protected but one parent saw harm coming to the child from the notoriety associated with a legal attack on the local school district and to some extent, the child’s peers.  Are family court judges supposed to decide these matters.  And, what criteria should they employ?

I also have concerns about the practical aspects of what our society now wants judges to do to remedy these situations. I have not seen the specific order entered by the trial court, but put yourself in Judge Caputo’s position. You order the child to be re-instated to the cheerleading squad.  If the coach does not permit Ms. Levy to participate in the half –time festivities; is this a contempt of your order? Should you direct the school district to re-form its squad and eliminate a person to create an opening for this child. A three or four person cheerleading pyramid does not work better or at all simply because the federal courts order more personnel to participate. I get the constitutional principles involved and realize that people like Rosa Parks or John Lewis did not win many friends in their broader community by advancing constitutional principles. But teenagers are poor cannon fodder in constitutional warfare and I wonder whether all the lawyers, judges and scholars can ever provide Ms. Levy with the relief she was seeking when she posted her intemperate message. In the end, she just wanted to be varsity and not a famous relic of constitutional law.  Parents and adults sometimes forget that message when they take matters to court.

We have heard about the data.  In 2015, the Labor Department’s Bureau of Labor Statistics published a study indicating that the average worker could expect to hold 12 jobs during his/her career.  More recently, another study indicates that among younger workers (ages 25-35), job changes are occurring once every 2.8 years.

Many of these jobs are temporary or independent contractor arrangements.  Those folks are typically not eligible to participate in qualified retirement plans under the Employee Retirement Income Security Act (ERISA).  Nevertheless, many people are eligible, and many do participate, sometimes without realizing that they are participants.  That may seem improbable, but we have run into a broad range of clients from CEO’s to hourly employees who cannot decipher their own paystubs.  Bear in mind that if the employee is enrolled in a defined benefit retirement plan, the paystub is not going to reflect participation.

Let us suppose the employee is in the 25-35 age range and leaves after this reported 2.8-year period.  He or she may have put away $9,000 in contributions and seen it matched by the employer with another $4,500.  The employee leaves and takes on new employment.  Then, after several moves, the retirement administrator could lose track of the participant’s address.  The employee in most instances could, in fact, should, roll the defined contribution benefits to an IRA or a subsequent plan.  However, that’s something that is often ignored or forgotten.

This problem is so common that the Pension Benefit Guaranty Corporation has done something to try to remedy the problem.  Their approach actually comes at it from a different angle.  Many businesses close, merge or are acquired by others.  Their employee retirement benefits are separately held and the company the employee worked for may no longer exist even though the retirement benefits are still there.

I have not experimented with the website but it is there online if you click here.  Another resource they offer on their site is a page to contact them about unclaimed pensions.  Click here to be transferred to that page.

In prior postings, we have suggested that attorneys recommend to clients that they secure their own credit reports so that they can make certain they know all of their marital debt and to assure themselves that their spouse has not fraudulently applied for credit using their identity.  We have also observed situations where an adult has secured credit in the names of their parents; even their in-laws, because that person has access to data related to social security or bank accounts of those people.

Needless to say, some parties to divorce are knowingly guilty of allowing benefit plans to be undisclosed.  It can and should be embarrassing for a person to be confronted with an undisclosed benefit he or she otherwise had a duty to disclose.  In most instances, the amount may be trivial, but Pennsylvania law more or less defines trivial as “less than $500.”  Clients need to investigate their own financial houses on both the asset and liability side before casting stones at others in the divorce process.

Divorce Complaints come in a variety of ways.  Most lawsuits require delivery by people in patrol cars and uniforms. In the divorce world, things are a bit more “loose.”  Your complaint can come by sheriff, or a constable without uniform, or by another adult.  It can be sent by mail if a return receipt is involved.

The complaint itself is innocuous.  It says that a divorce is sought and specifies if economic claims for alimony, property division, counsel fees and other relief is sought.  But the package may also contains an affidavit of separation.  This sets forth if and when the parties separated.  Separation is a complex topic.  Today people rarely just “walk out.”  However, the affidavit specifies a date and it says you have 20 days to file a pleading if you want to dispute that date.  Otherwise, that date is the date.  It defines how long the divorce may take and what property is marital and what is not.  So you ignore a date of separation affidavit at your peril.  Perhaps you and your spouse started disliking each other in 2016.  Perhaps you stopped having “relations” in 2018.  But, your spouse didn’t actually leave until 2020.  If the affidavit served on you says that you separated in 2016 and you don’t contest that with a court filing within 20 days of service, 2016 will be the date of separation, even if you had a wedding anniversary with 200 guests in 2019, or if your spouse was in a car accident or hit the lottery after 2016.  The recovery on the accident or the ticket will not be marital property.

So if you want to delay conferring with a lawyer, you can do so, but read your mail carefully in the meantime.  There could a be a lot of money at stake.