Family Law Blog
Family Law
Understanding Relocation Custody Cases: Navigating Complex Family Legal Matters
Relocation custody cases, also known as move-away cases, arise when one parent desires to move with their child to a new location, typically a significant distance away from the other parent. These cases present complex legal and emotional challenges that affect the lives of all parties involved. Defining Relocation Custody Cases A relocation custody case is a legal matter that arises when a custodial parent, the one with primary physical custody of the child, wishes to relocate to a different geographic area. This can be within the same state or across state lines. The relocation might be due to various reasons, such as a new job opportunity, family circumstances, or personal reasons. These cases can be contentious because the move often results in a significant disruption of the child's life and the relationship with the non-relocating parent. The non-relocating parent, or the one without primary physical custody, may object to the relocation, fearing that it will limit their ability to spend time with the child. Relocation cases can stem from a variety of factors, including: Employment opportunities: The relocating parent may be offered a job or career advancement in a different location, compelling them to consider the move. Family support: A relocating parent may want to move closer to family members or a support network to help raise the child. Safety concerns: Relocation might be driven by concerns about safety, such as escaping an abusive relationship or moving to a safer neighborhood. Educational opportunities: A relocating parent may want to provide their child with better educational opportunities by moving to a region with superior schools or educational programs. Personal reasons: Sometimes, parents wish to relocate for personal reasons, such as wanting to live in a different environment or to start a new chapter in their lives. Legal Considerations Relocation custody cases are highly sensitive, and the courts take various factors into account to make decisions in the best interests of the child. Some legal considerations include: Best interests of the child: The court's primary concern is the well-being of the child. They consider the child's relationship with each parent, the impact of the move on the child's life, and their emotional and physical needs. Parenting plan modification: If the court approves the relocation, it may need to modify the existing parenting plan to accommodate the new circumstances. This could involve changes to visitation schedules and custody arrangements. Notice and consent: The relocating parent typically needs to provide adequate notice to the non-relocating parent and may require their consent to relocate. If the non-relocating parent objects, a court hearing is usually necessary. Burden of proof: In many cases, the burden of proof falls on the relocating parent to demonstrate that the move is in the child's best interests. They must provide evidence to support their reasons for the relocation. Mediation and negotiation: In some instances, parents can resolve relocation disputes through mediation or negotiation outside of court. This can be a less adversarial way to reach a solution. Relocation custody cases are challenging legal matters that require careful consideration of the child's best interests and the rights of both parents. The courts aim to make decisions that provide stability and well-being for the child, while respecting the rights of both relocating and non-relocating parents. It's essential for all parties involved to seek legal counsel and work towards a solution that prioritizes the child's welfare and emotional needs during these often difficult and emotionally charged situations.
November 14, 2023
Family Law
Protecting Your Business During Divorce: Strategies for Business Owners
Divorce is a challenging and emotional process, and it becomes even more complex when you own a business. Your business is not just a source of income but a significant asset that may be subject to division during divorce proceedings. There are some strategies and tips to help business owners navigate the divorce process while safeguarding their business interests. Prenuptial or Postnuptial Agreements If you're a business owner, one of the most effective ways to protect your business during a divorce is to have a prenuptial or postnuptial agreement in place. These legal documents outline how assets, including your business, will be divided in the event of divorce. By establishing clear terms and agreements in advance, you can minimize disputes and protect your business interests. Keep Business and Personal Finances Separate Maintaining a clear separation between your business and personal finances is vital for protecting your business during a divorce. Make sure your business has its own bank accounts, financial records, and tax documentation. Commingling personal and business finances can make it challenging to prove the business's true value. Accurate Business Valuation Accurate valuation of your business is critical during divorce proceedings. It's advisable to hire a professional business appraiser or a certified public accountant (CPA) with experience in business valuation to determine the fair market value of your business. A well-documented and substantiated valuation can help ensure a fair division of assets. Explore Buy-Sell Agreements A buy-sell agreement is a legal contract that outlines what happens to a business if one of the owners goes through a life-changing event, such as divorce. Having a well-drafted buy-sell agreement in place can allow your business partner or co-owners to buy out your spouse's share, helping to keep the business within the hands of those actively involved. Offer Compensation in Exchange for Business Ownership To protect your business, you might consider offering your spouse other assets or compensation in exchange for relinquishing their claim to the business. This can be a complex negotiation, but it can help keep your business intact and mitigate the need for a forced sale or liquidation. Mediation or Collaborative Divorce Consider alternative dispute resolution methods such as mediation or collaborative divorce, where both parties work together with a neutral mediator or collaboratively trained attorneys to find solutions. These processes often lead to more amicable settlements and can be less disruptive to your business. Protect Intellectual Property If your business involves intellectual property, such as patents, trademarks, or copyrights, make sure it's protected. Clearly delineate ownership of these assets in your business agreements and maintain strong records. This can prevent disputes over intellectual property during divorce. Consult with Legal and Financial Experts Seek the guidance of experienced divorce attorneys and financial advisors who specialize in handling divorce cases involving business owners. They can provide tailored advice and ensure you are aware of all legal options and potential financial implications. Protecting your business during a divorce requires careful planning and a proactive approach. By implementing these strategies and seeking professional guidance, you can navigate the divorce process while safeguarding your business interests. Remember that every divorce case is unique, and it's essential to work with legal and financial experts to create a customized plan that suits your specific situation.
November 14, 2023
Family Law
The Role of Forensics in Child Custody Cases in 2023: Ensuring the Best Interests of the Child
Child custody cases are among the most emotionally charged and complex legal matters. In recent years, the integration of forensic evidence has become increasingly important in determining the best interests of the child involved. This article explores the significance of forensics in child custody cases and how it aids in ensuring the well-being and safety of the child. The Evolving Role of Forensic Evidence: Forensic evidence in child custody cases encompasses a wide range of disciplines, including psychology, social work, and mental health evaluations. These evaluations help assess the child's emotional, mental, and physical well-being, as well as the capabilities and suitability of each parent to provide a nurturing environment. Objectivity and Expertise: Forensic professionals are trained to approach child custody evaluations objectively, utilizing scientifically validated methodologies and standardized assessment tools. Their expertise helps the court make informed decisions, considering factors such as parental abilities, parenting styles, home environments, and relationships with extended family members. Assessing Allegations of Abuse or Neglect: In cases where allegations of abuse or neglect arise, forensic evaluations play a crucial role. Professionals may perform interviews, review medical records, and conduct investigations to determine the veracity of such claims. This evidence-based approach ensures that the child's physical and emotional safety remains Coordinating with Other Professionals: Forensic experts often collaborate with other professionals involved in the case, such as therapists, child protective service workers, and attorneys. This collaboration enables a comprehensive understanding of the child's unique circumstances and facilitates the development of appropriate recommendations for custody arrangements. Issues of Parental Alienation: Forensic evaluations also address concerns related to parental alienation, where one parent attempts to manipulate or undermine the child's relationship with the other parent. These evaluations delve into the dynamics between parents and children to identify signs of alienation and make recommendations for intervention if necessary. Ensuring Ethical Standards: Forensic professionals adhere to ethical guidelines, ensuring impartiality, confidentiality, and respect for the child's rights. They are committed to understanding cultural, ethnic, and religious diversity, which may influence the child's upbringing and well-being. Conclusion In 2023, the integration of forensic evidence in child custody cases continues to play a crucial role in safeguarding the best interests of the child involved. The use of objective, evidence-based assessments allows courts to make informed decisions that prioritize the child's well-being, safety, and long-term development. By relying on forensic evaluations, the legal system strives to ensure fairness, accuracy, and justice for all parties involved in child custody disputes.
October 26, 2023
Family Law
The Child-Parent Security Act and Compensated Surrogacy
Originally posted on 10/23/2020, content updated on 10/25/2023 On February 21, 2021 New York’s long-time ban on compensated gestational surrogacy ended as the New York Child-Parent Security Act (“CPSA” or the “Act”) became effective, providing those New Yorkers who relied upon assisted reproductive technology (“ART”) in order to have children, a far easier path to establishing their legal parental rights.i The Act is detailed and comprehensive, providing clear procedural requirements (which must be followed) to ensure the legality of the gestational surrogacy, and therein secure, in the simplest manner possible, the legal relationship between infant and intended parent. In gestational surrogacy, the gestational carrier cannot be biologically related to the child she is carrying, and, in New York surrogacy arrangements where the surrogate provides/provided the egg, continue to be prohibited. Prior to the passage of the CPSA, future parents needing the assistance of a compensated surrogate to have a child had no choice but to engage a surrogate who resided and gave birth to the child outside of New York. Costly adoption proceedings were thereafter necessary to secure the legal relationship between the new parents and their child. The CPSA replaces all that with a simple procedure to obtain a pre-birth judgment of parentage, thereby establishing and fixing the legal relationship between parent and child from birth. The Act is gender and marriage neutral (closing old gaps in the law), and determines parentage by reference to the intention to parent rather than a genetic connection that may or may not exist. The Act also addresses disputes arising as a result of cryopreserved embryos that remain after the dissolution of a marriage or non-marital relationship and provides a clear means for the couple to address the issue. The Act additionally creates a novel process, wherein a single intended parent conceiving with donor genetic material may obtain a judgment of parentage declaring him or her to be the only legal parent of the child. Last but far from least, the Act protects not only the child and intended parent(s), but importantly creates a “surrogate’s bill of rights,” setting a new standard for the protection of gestational surrogates, giving them: access to their own independent legal counsel; the right to make health and welfare decisions concerning themselves and the pregnancy; the right to health insurance coverage, life insurance, and psychological counseling; and, the right to decide not to proceed with the pregnancy without any penalties. New Yorkers considering the use of a gestational surrogate should be aware of the expansive changes in law provided by the CPSA, and retain Counsel well versed in the new law, its requirements and complications in order to ensure as trouble-free a process as possible. i Until the passage of the CPSA (signed into law on April 2, 2020), gestational surrogacy was illegal in the state, and punishable by criminal penalties.
October 25, 2023
Family Law
New York Law Extends Support for Handicapped Children Beyond Age 21
In a groundbreaking move, the State of New York became the 41st state to enact a progressive law requiring parents to continue supporting their handicapped children beyond the age of 21. This decision showcases New York’s commitment to ensuring the well-being and inclusion of individuals with disabilities, guaranteeing them a stable future filled with opportunities for growth and independence. Background and Rationale The law amends the Domestic Relations Law and the Family Court Act to allow custodial parents or caregivers of children with “developmental disabilities” to petition a Court to receive support payments until the child is age 26. SeeDomestic Relations Law §240-d; Family Court Act § 413-b. The new law builds upon the existing legal framework surrounding disability rights and represents a significant step forward in promoting inclusivity and equity for all members of society. By extending parental support beyond the traditional age of adulthood, New York aims to bridge the gap between education and independent living for handicapped individuals. Recognizing that disabilities may impede self-sufficiency, this legislation seeks to offer a safety net that promotes their long-term welfare. Key Provisions Who May Seek the Relief: A medical professional must have previously diagnosed the child with a “developmental disability.” The custodial parent or caregiver of the “developmentally disabled” child may petition the Court for relief provided that the child is “principally dependent” on the petitioner and resides with the petitioner. What is the Definition of Developmentally Disabled: A developmental disability is as defined by the Mental Health Law, which includes, but is not limited to, cognitive, developmental, and physical disabilities. The disability must (1) have originated before the child became 22 years old, (2) have continued or can be expected to continue indefinitely, and (3) constitute a substantial handicap to the child’s ability to function normally in society. See Mental Health Law §1.03 (22). Extended Financial Support: Under this law, parents are required to continue providing financial support to their handicapped children beyond the age of 21. This provision ensures that individuals with disabilities have access to basic necessities, healthcare, and other essential support services. Education and Vocational Training: The legislation emphasizes the importance of ongoing education and vocational training for handicapped individuals. Parents are encouraged to facilitate their children’s continuing education or skill development to enhance their employment opportunities and improve their overall quality of life. Guardianship and Decision-making: The law provides provisions for parents to retain guardianship over their handicapped children even after they reach adulthood. This empowers parents to make decisions concerning medical care, housing, and other crucial aspects of their child’s life, ensuring their ongoing well-being and security. Housing and Accommodation: The law recognizes the critical role of suitable housing in fostering independence and mandates parental responsibility in securing appropriate living arrangements for their handicapped children. This provision aims to prevent homelessness and promote inclusive communities that cater to the unique needs of individuals with disabilities. Impact and Implications This progressive legislation has far-reaching implications for disabled individuals and their families. It promotes their physical and emotional well-being and strengthens the foundation for a more inclusive society where every person is valued and included. By removing barriers to independence, New York aims to empower handicapped individuals to lead fulfilling lives, contribute to their communities, and achieve their full potential. Conclusion The passage of the New York law requiring parents to support handicapped children beyond the age of 21 is a significant milestone in disability rights and sets an inspiring example for other states to follow. By recognizing the ongoing needs and challenges faced by handicapped individuals, the law acknowledges the importance of parental support in fostering their independence and overall well-being. It is a step towards creating a more inclusive and compassionate society that values and empowers every member, regardless of their abilities.
October 23, 2023
Family Law
New Standard for Child Relocation Applications in New Jersey
Originally posted on 4/20/2018, content updated on 10/20/2023 So you want to move to warm, sunny Florida with the kids, but your ex spouse is saying “no way”…… The Best Interests of the child In Bisbing v. Bisbing, the New Jersey Supreme Court held that the outcome of a contested relocation determination must be made pursuant to the best interests of the child. This replaced the previous case law, which was heavily relied upon in Bauers v. Lewis. In all contested relocation disputes, courts should conduct a best interests analysis to determine “cause.” The best interests of the child standard is the new standard, regardless of the custody arrangement in place. In Bisbing v. Bisbing, pursuant to the terms of a Marital Settlement Agreement, the divorcing parents agreed that the Mother was the primary residential parent with custody of their twin daughters. The MSA also included a relocation provision stating that “[n]either party shall permanently relocate with the children from the State of New Jersey without the prior written consent of the other.” Shortly after the divorce, the mother informed the father that she was planning to remarry and relocate to Utah with her new husband (with whom she had a relationship prior to the Court granting the Final Judgment of Divorce). The father refused to consent to the permanent relocation of the children to Utah. The mother then filed a motion seeking an order permitting her to permanently relocate with the children to the State of Utah. The Father stated that the Mother had negotiated the MSA in bad faith, securing his consent to her designation as the Parent of Primary Residence without informing him that she relocated. Applying the standard established in Baures v. Lewis, the Trial Court granted the Mother’s application for relocation, finding she presented a good-faith reason and that the move would be in the children’s best interest. Thereafter, the Mother relocated to Utah with the children. The Father appealed the Trial Court’s decision. The New Jersey Appellate Division reversed and remanded, finding that there was a genuine issue of material fact as to whether the Mother negotiated the custody provisions of the MSA in good faith. The Mother was then Ordered to return with the children to the State of New Jersey. The Trial Court ordered the parties to then abide by the residency provisions previously entered into in the MSA. Supreme Court finds “Special Justification” to Abandon the Baures Standard. The Supreme Court of New Jersey recognized a “special justification” to abandon the standard it had established in Bauers v. Lewis for determining the outcome of contested relocation matters. In place of the Baures standard, Courts should conduct a best interests analysis to determine “cause” under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody. The Court remanded to the Trial Court for a Plenary Hearing to determine whether the Custody arrangement previously agreed to and as set forth in the parties’ MSA should be modified to permit the relocation of their children to Utah. No Waiver of Interstate Child Relocation The Court declined to agree with the Father’s assertion that by consenting to the Interstate relocation provision of the MSA, the Mother waived her right to a judicial determination of her relocation application under N.J.S.A. 9: 2-2. However, the Mother must demonstrate that there is “cause” for an Order authorizing relocation, which shall be determined by the best interest analysis considering the factors in N.J.S.A. 9:2-4 ( c). Notably, because the best interests standard applies to the determination of “cause” nothwithstanding the designation as the Parent of Primary Residence, the Trial Court need not decide whether the Mother negotiated the parties’ MSA in bad faith. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
October 20, 2023
Family Law
Immunizing Against Anti-Vaxxers
How Courts are Protecting Children from Parents Who Go Against Science and What it Could Mean in the Age of COVID-19 Originally posted 9/10/20, content updated on 10/19/23. Over the past nearly forty years,[1] and with increased fervor over the past twenty years,[2] the United States has seen the birth and exponential growth of the anti-vaccination (“anti-vaxxer”) movement. Spurred by conspiracy theories and junk science, this “movement” has gained traction across the nation and has even garnered protections under the First Amendment. Only five (5) states have laws requiring children in public schools to be vaccinated unless they have a valid medical reason not to be vaccinated.[3] The remaining 44 states allow children to be exempt from vaccinations due to religious concerns. While 15 states also allow exemptions for any type of nonreligious personal belief. The Centers for Disease Control has conclusively stated that “there is no link between vaccines and autism.” Since 2003, there have been nine CDC-funded studies concluding that neither vaccines nor vaccine ingredients cause autism. More recently, a 2011 study by the Institute of Medicine and a 2013 study by the CDC added to the growing body of research debunking this myth. The vaccine debate has also played out in another, less public, arena: family court. When two parents disagree on whether to vaccinate their child, that issue is front and center in any custody case. Until recently, the jurisprudence on this issue did not favor one position over the other. In 2019, the Maryland Court of Special Appeals issued a quiet but ground-breaking ruling in In re: K. Y-B, 242 Md. App. 473. In In re K. Y-B, the mother of an infant objected to the child receiving vaccinations on religious grounds. After the filing of a CINA petition, the Department of Social Services was granted limited guardianship and permission to allow the minor child to receive routine vaccinations. The mother filed an immediate appeal, and the Court of Special Appeals held that a parent is free to believe as they wish but cannot act on their beliefs in such a way as to pose a serious danger to the child’s life or health or impair or endanger the child’s welfare. The Court further held that the significant risks to the child and to the public if he does not receive childhood immunizations outweigh a parent’s right to religious freedom. This ruling creates a precedent in Maryland that failure to vaccinate a child poses a serious danger to the child’s life and health and impairs or endangers the child’s welfare. It reasonably follows that a parent who would make such a decision is not acting in the minor child’s best interest, which is the prevailing standard for determining custody. A look at recent cases across the country on this issue evidences an emerging trend towards a public policy that requires vaccinations. It is also an indication that a parent’s anti-vaccination stance may be a determinative factor in awarding sole legal custody or tie-breaking authority to the other parent. In 2004, the Texas appellate court upheld the trial court’s decision to give the father sole decision-making over vaccines when the mother was anti-vaccination. See Garcia-Udall v. Udall, 141 S.W.3d 323 (Tex.App. 2004). In 2006, Colorado awarded sole legal custody to the parent who wanted to vaccinate the minor child in accordance with the recommendation of medical professionals. “Citing the special advocate’s finding that providing medical care consistently and under the advice of a qualified physician was in the child’s best interests and that the father was more likely to follow such advice, the court allocated decision-making responsibility for the child’s medical care to father.” In re Marriage of McSoud, 131 P.3d 1208, 1214 (Colo.App. 2006). In 2014, North Carolina joined the trend in a case where the parents had joint decision-making authority, and the father wanted the children vaccinated, and the mother did not. Unbeknownst to the mother, the father had the children vaccinated, and the appellate court upheld the lower court’s finding that the father was not in contempt on the grounds that the vaccines were not harmful to the children. See Meduri v Meduri, 763 S.E.2d 338 (N.C.App. 2014). Pennsylvania followed suit in 2015. In B.C.S. v. T.S.S., 121 A.3d 1137 (Penn. 2015), the mother’s anti-vaccination stance was deemed “unorthodox” and a display of “poor judgment” by the trial court, which awarded the father sole decision-making authority. The Pennsylvania Supreme Court affirmed. The District of Columbia took an unorthodox approach in a 2015 case where the parties had joint legal custody, but the father had tie-breaking authority in the event of an impasse. The father exercised his tie-breaking authority and refused to allow the parties’ daughter to receive the HPV vaccine. The trial court removed the father’s tie-breaking authority and appointed a third party to resolve disputes over vaccines, and the appellate court upheld the lower court’s ruling. See Downing v. Perry, 123 A.3d 474 (D.C.App. 2015). In 2017, three (3) states issued opinions awarding sole legal custody to the parent who supported vaccinations for minor children. Missouri upheld the award of sole medical decision-making to the father, against the mother’s anti-vaccination wishes. See Gammon v. Gammon, 529 S.W.3d 350 (Mo.App. 2017). In Indiana, an award of sole decision-making authority over vaccines for minor children was upheld in a case where the mother was anti-vaccination. See Young v. Young, 95 N.E.3d 218 (Ind.App. 2017). The Tennessee appellate court upheld the award of sole decision-making authority to the mother, where the father was anti-vaccination. See Pankratz v. Pankratz, M2017-00098-COA-R3-CV (Tenn.App. 2017). Also, in 2017, Oregon courts went one step further and upheld the trial court’s order that the parties “ensure that a proper vaccination schedule is in place.” In re: Marriage of Botofan-Miller & Miller, 406 P.3d 175 (Or.App. 2017). Iowa has even linked a parent’s stance on vaccinations to fitness for physical custody/access. “Iowa courts have historically favored a parent who provides immunizations when determining which parent should have physical care of the child.” In re Marriage of Asefi, 838 N.W.2d 869 (Iowa App. 2013). [1] The current anti-vaxxer movement is often traced back to 1982 when NBC aired a documentary called “DPT: Vaccine Roulette” which addressed a purported tie between the vaccine for pertussis and seizures in young children. [2] In 1998, a British gastroenterologist named Andrew Wakefield published a study associating the MMR vaccine with autism. The study has since been discredited and the paper was retracted in 2010. [3] New York, California, Maine, Mississippi, and West Virginia.
October 19, 2023
Family Law
LGBT Common Law Marriage
Originally posted on 2/28/2018, no content changes Pennsylvania was one of the few states that continued to recognize common-law marriage. Although common law marriage in Pennsylvania was abolished in 2005, it continues to be recognized retroactively, meaning that a common law marriage entered into prior to 2005 is still recognized in Pennsylvania. Thus, in the event of a termination of the relationship, parties to a common law marriage may go through the divorce process and are entitled to the same rights and benefits as parties who were formally wed. In 2017, a Pennsylvania Superior Court case confirmed that same-sex couples who entered into a common law marriage prior to 2005 are also entitled to the same rights and benefits accruing as a result of the marriage. This allows same-sex couples to gain rights they would otherwise not have due to the fact that same-sex marriage was not recognized in Pennsylvania until May 20, 2014, when marriage equality was achieved. These rights and benefits include but are not limited to equitable distribution of assets, interim support during the divorce process, alimony, and social security survivor benefits. All of these rights and benefits are fact-sensitive and vary in each case, which is why it is important to seek a family law attorney to discuss whether the facts of a specific case would qualify as common law marriage and/or what rights and benefits are applicable. For more information on this topic, please contact Megan Smith atmsmith@offitkurman.com.
October 18, 2023
Family Law
Market Volatility, Retirement Savings and Divorce: Avoiding the Pitfalls in Present and Post-COVID-19 Times
Originally posted on 04/09/2020, content updated on 10/17/2023 Virtually every state in the union has, upon divorce, some form of retirement asset division based upon coverture.[i] The traditional method divides the retirement asset at its value upon the date of the commencement of the divorce action. Distribution of a portion of the asset to the non-employee spouse,[ii] while maintaining the inherent tax benefits of the resource (i.e., such as a 401(k) Plan, defined contribution plans and profit-sharing plans)[iii], requires the implementation of a Court Order known as a Qualified Domestic Relations Order or QDRO.[1] Drafting the QDRO to comport with the determined division to the non-employee spouse was rather uncomplicated when the financial markets were stable. But today is a new day, and one must ask what should be done in today’s market to both protect the asset’s value, while simultaneously not giving away too much? Let’s start with an example: In November 2019 Spouse A agreed to give Spouse B $500,000 when the profit-sharing plan in issue was valued at $1 million. The QDRO is drafted just so. By the time the QDRO is signed this month by the Court, there has been a downturn in the market and the value of the account has dropped to $750,000. Under the explicit terms of the QDRO Spouse A will still have to pay Spouse B $500,000 even if the account is now worth only $750,000. Spouse B is now very happy. Spouse A is fit to be tied! What to do? Avoid Flat Dollar Amounts; Specifically Address Earnings and Losses Flat dollar amounts payable to non-employee spouses create agonizing results when account values shift into retrograde. This is because no provision has been made to adjust the spouse’s amount to account for earnings or losses. That is not to say that the employee owner should not always agree to a flat dollar amount. If he or she is a gambling type – then such audacity may be a successful strategy. If you negotiate a flat dollar amount, you need to understand this risk. The employee-spouse should only agree to this if he/she is willing to take the risk. And only then, if there are sufficient funds to handle an award even if the account value drops significantly. The better way -- is to fix a percentage of the fund in issue to be distributed, and then add a provision along the lines of “including investment earnings and/or losses on that amount [the percentage amount] from [that date] until the date the funds are completely distributed to the [wife/husband].” Or, consider using the date of issuance of the judgment of divorce as the date to update all retirement account values attributable to post-commencement market forces. Even if the account is not actually divided for several years, each spouse will still get exactly what he or she would have received if the account had been divided on the agreed-upon date of division. It is also good practice (though rarely undertaken), with any retirement account to insist that the employee spouse transfer the funds into a stable value fund (if such is available), while the divorce and QDRO are pending. If this option is available, this is the best way to preserve the amount of the account, at least until the QDRO has been executed. Make Sure the QDRO is Prepared Promptly Each financial company, bank, brokerage house, retirement plan etc., has its own particular QDRO, or at least language that must be present in a QDRO. There is no reason to delay in investigating the form needed or the language necessary to undertake the transfer once the case is settled. In short, the QDRO should be researched long before the settlement agreement is inked. There is nothing stopping the attorney from doing so. In fact, this writer makes it a necessary part of the work undertaken as the case is being prepared for trial or settlement. Once the case resolves and the QDRO is prepared, it is then necessary to obtain the approval of the retirement plan’s administrator, so as to ensure that they will accept the form of QDRO and act upon it once it becomes a Court order. When the work is done in a timely manner, a QDRO can be filed at the same time as the settlement agreement. If that is not possible, it must be filed as soon as possible after the divorce is finalized because with further delay the non-employee spouse is putting themselves at risk to lose his/her benefits in a number of situations: The employee-spouse retires and starts drawing benefits without notifying their former spouse. The employee-spouse dies without a QDRO in place that locks in survivor benefits for the non-employee spouse. The employee-spouse takes a loan out that significantly reduces the account balance available for division pursuant to a QDRO. Conclusion Preparedness and diligent practice are the keys to success in ensuring a QDRO is properly written and ready to go. As we lived through a difficult time, and Courts were closed for all but emergency filings, it was more important than ever to get the QDRO process started for settled cases. Despite COVID-19, legal/QDRO teams for plan administrators moved quickly in their pre-approvals. Although we were not able to file the QDRO, best practices dictated having it ready for filing once the Courts opened, so that you did not end up at the bottom of the pile once normalcy returned. [1] Division of an IRA or a Roth IRA upon divorce does not require the use of a QDRO.[i] Historically defined as the condition or state of a married woman, considered to be under her husband’s protection. Used in modern parlance to mean the marital portion of an asset.[ii] Referred to in the law as the “alternate payee.” [iii] Division of an IRA or a Roth IRA upon divorce does not require the use of a QDRO.
October 14, 2023
Family Law
Deciding Whether to Have a Prenup?
Deciding whether to have a prenuptial agreement, often referred to as a "prenup," is a personal choice that should be made after careful consideration. While prenups are not necessary for every couple, there are several reasons why you might want to consider having one: Protection of Assets: Prenups can be a valuable tool for protecting your individual assets acquired before the marriage. This is particularly relevant if you have significant assets, such as property, investments, or a family business, that you want to safeguard in case of divorce. Clarification of Financial Rights and Responsibilities: A prenup allows you and your partner to outline each other's financial rights and responsibilities during the marriage, including how you will handle income, expenses, and debt. It can provide clarity and prevent misunderstandings about financial matters. Alimony and Spousal Support: Prenuptial agreements can specify the terms and conditions for alimony or spousal support in the event of a divorce. This can help avoid contentious disputes over financial support in the future. Protection for Heirs: If you have children from a previous relationship or plan to inherit significant assets, a prenup may ensure that your children's inheritance rights are protected, even if you divorce or pass away. Debt Protection: A prenup can define how pre-existing debts will be handled during the marriage and in the event of a divorce, preventing one spouse from being held responsible for the other's debts. Business Interests: If you own or plan to start a business, a prenup can outline how business assets and interests will be divided or protected in the event of divorce, ensuring the continuity of your business endeavors. Avoiding Lengthy and Costly Legal Battles: Divorce proceedings can be emotionally draining and expensive. A well-crafted prenuptial agreement can streamline the divorce process by clearly defining property division and financial matters, potentially reducing the time and money spent on legal battles. Preservation of Privacy: Divorce proceedings are often public, but prenuptial agreements can help keep sensitive financial details and personal matters private. This can be especially important for public figures or individuals who value their privacy. Open Communication: The process of creating a prenuptial agreement requires open and honest discussions about financial matters and expectations. This can promote healthy communication and a better understanding of each other's financial goals and values. It's important to note that prenuptial agreements are not solely about planning for divorce; they can also serve as a financial planning tool for the duration of your marriage. However, for a prenup to be legally enforceable, it must meet certain legal requirements, such as full financial disclosure, fairness, and voluntary agreement. Before deciding to have a prenup, it's advisable to consult with legal professionals who specialize in family law to ensure that your agreement is legally valid and tailored to your specific circumstances. Ultimately, the decision to have a prenuptial agreement should be made together with your partner, with open communication and mutual understanding as key principles in the process.
October 11, 2023
Family Law
Divorce: It’s Not About Winning or Losing - It’s About How You Play The Game
Originally posted 3/4/2020, no content changes. Legendary football coach Vince Lombardi once said, “Winning isn’t everything...it’s the only thing.”Well when it pertained to his beloved Green Bay Packers, this hall-of-famer might’ve been right. However, when it comes to divorce, what’s more important is “how you play the game.” Getting what you want out of a divorce comes down to not trying to pulverize your opponent (ex-spouse) on every play or argue with the referees (judge/mediator) on every call. It’s about playing smart and managing expectations. Here are some “coaching tips” that should prove helpful. Never expect a complete victory. Divorce law is set up to prevent a final score where there’s a winner and a loser. But yet that’s often easier said than done. That’s because you still feel entitled to everything, considering what your spouse has put you through. You’re 100% certain nobody could ever be so cruel, as much of a deadbeat, as unloving as a potted plant... Well, I can pretty much guarantee you, your judge has heard it all before in hundreds, if not thousands, of other cases. So don’t take it personally when the judge doesn’t admonish your spouse in front of you, or share in your heartache. That’s not their role. You need to realize that divorce cases are first and foremost, fact-intensive. They’re about conflict resolution not about your personal revenge. The court’s there to get you and your spouse separated, your assets allocated, debts squared away and your future support put in place. Most likely your court will go for a 50/50 split as often as possible with both you and your spouse left on equal footing at the end. And if you have children, the court will determine how custody is going to work...in your kids’ best interest and not yours. And while emotional support is crucial for you throughout the process, as Dionne Warwick sang so beautifully, “That’s what friends are for.” Then there’s the notion that you know what you should be awarded because you know of a case where a friend of a friend got everything he or she desired. Well, all cases are different, all lawyers and judges are different in how they present and interpret the law and each partner brings their own backstory to the proceedings. So while on the surface your case may look similar, appearances can be very deceiving. Also never expect a quick and easy resolution. Vince Lombardi knew a football game was won in the trenches, and usually in the fourth quarter. Very few divorces are cut and dry. There’s usually a lot of material for your attorney to get through and plenty of details you couldn’t have anticipated. Perhaps you and your spouse did “talk things out” but once a settlement proposal is drawn up, these issues look very different when they’re in black and white and in a legal document. And know that while you may have a “due date” when you want your divorce to be final, you’ll need to be flexible. Nearly every jurisdiction in the U.S. has a different waiting period, from thirty days to six months and beyond if children are involved. Divorce isn’t about control as much as it is about compromise. So while starting divorce proceedings can feel like you’re suddenly on an unfamiliar and scary playing field, speaking to a family attorney, like Sandy and Cheryl, will make it feel like your end zone is in sight and not twenty miles away in the distance.
October 10, 2023
Family Law
It Took Seven Days To Create The World, And Nearly Fifty Years To Afford Antidiscrimination Protection For All
…the arc of the moral universe is long, but it bends toward justice! [i] Originally posted on 02/25/2021, content updated on 10/06/2023 On May 14, 1974, Bella Abzug, Representative for New York's 20th Congressional District, introduced into Congress the “Equality Act of 1974,” the first piece of federal legislation to address discrimination based on sexual orientation. The act would amend Title VII of the Civil Rights Act of 1964 to prohibit discrimination against gays and lesbians in employment, housing, and public accommodations. Ms. Abzug’s Equality Act, as then presented, failed to pass and was thus relegated to the black hole of unsuccessful legislation and consigned to the annals of LGBTQIA history. Nearly fifty years later, on February 18, 2021, Representative David Cicilline and Senator Jeff Merkley reintroduced the Equality Act,[i] which afforded sweeping, clear, concise, and explicit anti-discrimination protections for all LGBTQIA people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.[ii] The Equality Act[iii] will update existing federal nondiscrimination laws, including the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, and several laws regarding employment with the federal government—to unambiguously incorporate sexual orientation and gender identity as protected characteristics. The legislation also explicitly amends the Civil Rights Act of 1964 to extend sex discrimination protections to public spaces and services, including retail stores, banks, legal services, and transportation services. These changes strengthen existing protections for everyone.[iv] Questioning the need for passage of the Act, some have pointed to the June 2020, groundbreaking Supreme Court ruling in Bostock v. Clayton County[v], which made clear that employment discrimination on the basis of sexual orientation or gender identity violates Title VII, and have argued that the Supreme Court’s decision can be stretched in its interpretation to protect LGBTQIA people from discrimination wherever federal law prohibits sex discrimination. The ruling in Bostock is too narrow though, for such a broad interpretation. The Bostock decision is based solely on the very particular facts and legal issues then present before the Court, and does little but scratch the surface in addressing discrimination against LGBTQIA people. The Equality Act however, in its present state, covers it all. The Legislative Process Care must be given however, before the celebration begins. The excitement of the re-introduction of the Equality Act has distracted many from the fact that its passage is not guaranteed. Our legislative process, embodied in our Congress, provides ample opportunity for consideration and debate on every bill presented for passage into law. The open and full discussion provided under the Constitution can result in the notable improvement of a bill by amendment or the demise of a bill by assault and abatement.[vi] Conclusion The patchwork nature of current sex discrimination laws leaves millions of people subject to uncertainty and potential discrimination that impacts their safety, their families, and their day-to-day lives.[viii] Absent the passage of the Equality Act as it is currently constructed, lesbian, gay, bisexual, transgender, queer, intersex and asexual, Americans will still lack basic legal protections in states across the country. [i] H.R.5 - Equality Act 116th Congress (2019-2020). [ii] House Expected To Vote On Sweeping LGBTQ Rights Bill Next Week, NBC News, 2/18/21. [iii] Originally introduced in 2019, the Equality Act passed the Democrat-controlled House in May 2019, but it stalled in the Republican-controlled Senate. [iv] HRC, Take Action, Pass the Equality Act Now, 2/17/21. [v] 590 U.S. ___ ; 140 S. Ct. 1731; 2020 WL 3146686; 2020 U.S. LEXIS 3252. [vi] Much like what happened to the Equality Act of 1974. See also, Congress.gov, How Our Laws Are Made. [vii] Time Magazine Why Federal Laws Don’t Explicitly Ban Discrimination Against LGBT Americans, 3/19. [viii] Lambda Legal, Lambda Legal Hails Introduction of the Equality Act, 2/18/21.
October 6, 2023
Family Law
How Much Will My Divorce Cost?
One of the first questions a client asks is, “how much will this cost me?” While there is no way to really know how much the process will cost, there are some significant factors that can impact your fees. Opposing Party/Opposing Counsel. Unfortunately, there are some attorneys who are unable or unwilling to provide their clients with reasonable options and steer the case in a direction that will result in a fair and equitable resolution. If the opposing party and/or their counsel is not reasonable or minded in resolutions and problem-solving, the cost will be higher than if reasonable expectations can be set early on. It is helpful if the roadmap to get to a win/win resolution can be the focus of the case. There are several processes that can be utilized to reach an amicable resolution without the need for litigation, which can be emotionally and financially expensive. As a result of anger or vindictiveness, some parties are unwilling to focus on the best interest of the family, especially when children are involved. And unfortunately, there are attorneys who encourage detrimental behavior. The combination of the two can be very expensive. We recommend that clients review their invoices each month. If there are questions regarding any charges, they should be brought to the attorney’s attention before the next billing period. If the attorney does not provide a satisfactory response for the charge, the client should interpret that as a red flag. Certainly, choosing the right attorney to represent you impacts your fees. It is worth spending money on the front end to consult with several attorneys until you find the right fit. Your instinct should never be ignored if you feel that the attorney with whom you are consulting is not responsive to your concerns and needs. Litigation is expensive for clients and profitable for attorneys, so you might question an attorney who pushes litigation from the onset without discussing other options that you might try to utilize to resolve your issues before filing for divorce. Complexity of the issues. If your case involves every issue before the court (e.g., custody, access, child support, division of marital assets, alimony, attorney’s fees), your matter will be more expensive. There are times when one cannot resolve all issues without the court’s intervention. However, the more issues you resolve on your own, the less expensive the process will be. Along with complex issues may come the cost of experts (forensic business valuations, forensic tracing of assets, forensic analysis of income, child custody evaluator, vocational rehabilitation, appraisers, and the list goes on). You can alleviate some expenses by being organized and gathering as much information/documentation as you can for your attorney/experts. Some clients simply do not know or have access to their/their spouse’s asset information, and the process of uncovering any undisclosed, hidden, or unknown assets can be time-consuming and costly. Before you engage an attorney, be sure to have resources available from which to pay your legal fees. This may include credit cards, a home equity line of credit, borrowing from friends/family, or liquidating assets. Your attorney should assist you with a plan as to what option may work best for you.
October 5, 2023
Family Law
Custody and Relocation in Pennsylvania
Originally posted on 3/14/2018, no content changes Relocation with a child in Pennsylvania is a complicated issue involving whether or not the parent who is relocating has primary physical custody and whether the location of his/her new residence will impact the visitation time of the parent who has partial physical custody, or any other party having visitation with the child. The process does not revolve around which parent has legal custody but how the relocation will affect the visitation rights of the other parent (or sometimes other parties, i.e., if a grandparent had partial physical custody/visitation rights). If the parent with primary physical custody wishes to relocate with the child, he or she must provide the other parent a formal notice of relocation, which must outline detailed information regarding the relocation. Following receipt of the Notice of Relocation, the non-relocating parent has thirty (30) days to file an objection to the Notice of Relocation with the Court. If such an objection is filed, the Court will schedule a hearing to determine the merits of relocation and whether same is in the best interest of the child(ren). If no objection is filed, the relocating parent must file a request to have the Court confirm his/her relocation with the child(ren). At that hearing, the Court will likewise make a determination as to whether the relocation is in the best interest of the child(ren), however, if no objection is filed, there is a presumption that the parties’ agree to the relocation and that same is in the child(ren)’s best interest, and thus the relocation is normally granted. If you are thinking of relocating and that relocation may negatively impact the other parent’s visitation schedule, it is imperative that you seek legal advice and ensure the proper notice is given and confirmation is granted by the Court before the move. As this can be a complicated issue and every case is fact-sensitive and unique, be sure to consult with a family law attorney, and sufficient time to obtain the necessary confirmation is allotted to ensure your move goes smoothly and visitation is not disrupted. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
September 21, 2023
Family Law
When an Ordinary Family Lawyer Isn’t Enough
There’s no such thing as an “ordinary” divorce. That being said, it’s fair to call some divorces extraordinary—for the extraordinary legal guidance they require. Imagine that you and your spouse have been together for 25 years. Together during that time, you’ve built a business, amassed a multimillion-dollar fortune, and invested in over a dozen ventures. That’s not all—you and your spouse have three homes, seven cars, a boat, pets, an extensive art collection, several pieces of one-of-a-kind furniture…The list goes on. Now, after one too many disagreements, you’ve both decided it’s best to move on and go your separate ways. Where will all those assets go? Who owns the business? Who controls the investments? Who gets the homes, the cars, the boat, the art, the pets? To determine the answers, you’ll need an uncommonly skilled and experienced legal partner. Many family lawyers lack the knowledge necessary to handle property negotiations and settlements of the size we’re discussing. Keep in mind that asset division is just one piece of the puzzle. In a situation this complex, there may be myriad tax, insurance, and estate matters to consider. Add children into the mix, and you could be dealing with custody arrangements, family business succession plans, wills, trusts, and a whole lot more. At Offit Kurman, we’re able to effectively assist clients with issues like these due to our firm’s unique operational structure and our highly distinguished team. Offit Kurman’s Family Law Practice Group includes multiple American Academy of Matrimonial Lawyers (AAML), International Academy of Matrimonial Lawyers (IAML) Fellows, Super Lawyers honorees, and attorneys named to lists of The Best Lawyers in America. Additionally, we regularly collaborate with our colleagues active in other Offit Kurman Practice Groups, such as Business Law, Education Law, and Estates and Trusts. Learn why Offit Kurman’s Family Law services are anything but ordinary.
September 18, 2023
Family Law
Have You Created Your Post-Divorce Budget?
Money is one of the most common reasons for divorce. It’s also frequently one of the greatest concerns after the divorce has been finalized. Depending on your situation, you may end your marriage with more or less in the bank than you had during the marriage. Perhaps you’ll be the one receiving alimony and/or child support, or the person on the other end writing checks. Maybe you secured more marital property than your ex-spouse—or were forced to give up significant assets such as a house or vehicle. Regardless of the details of your agreement, you’re almost certainly not better off financially now than you were before. Hardly anyone walks away from divorce a “winner.” To ensure your financial stability, you’ll need to carefully create a post-divorce budget and stick to it. This can be challenging for anyone, but especially people whose exes managed household expenses. Here are a few tips for getting started: Calculate your monthly income and expenses. Determine how much money comes in each month. Then, figure out how much you spend on recurring expenses such as housing (e.g. rent or mortgage payments), bills (electricity, phone, water, etc.), groceries, car payments, gas, and so on. Look for ways to save. If your expenses are higher than your income, you need to a) start saving and b) eliminate or reduce as many costs as possible. Transfer a percentage of your income into your savings account each month. Cut down on unnecessary shopping. Cancel subscriptions. Take fewer trips to the supermarket. Wait before making big purchases. There are hundreds of options when it comes to saving money, so pick the strategies that make the most sense to you and your family. Prioritize paying off debt. If you have credit card debt, outstanding student loans, or another form of debt, try to pay back what you owe sooner rather than later. Financial liabilities only compound with time. Track your progress. Once you’ve created a budget, you’ll need to follow it—every day, week, and month. Keep an eye on your income and expenses, and regularly review your plan. If you’re having trouble sticking with it, you may need to revise your budget or change your spending habits accordingly. Finally, don’t hesitate to ask for help. An experienced professional can assist you in developing your budget and keeping your expenses on track. An attorney like the ones at Offit Kurman can provide help or connect you with a financial advisor.
September 16, 2023
Family Law
Whose Case Is It Anyway? – The Risk Of Hiring An Overly Aggressive Divorce Attorney
“Go for the jugular.” “Show no mercy!” “Revenge is a dish best served cold.” Face it, divorce often doesn’t bring out the best in people…and this need for vengeance can cloud a client’s point of view when it comes time to hire an attorney. No client wants a wallflower representing them and there is nothing wrong with an aggressive attorney to work on your behalf. But if you hire a rabid out of control pit bill as your lawyer, someone who tells you they’re out for blood at any cost from the get-go, well that could come back to bite you on the you-know-where. So is there a middle ground where your attorney is “in it to win it” but not to the point where events could spiral out of control to your detriment? Yes, and the first big step is to not make an emotional decision on representation. Often clients come into an initial meeting so riled up, they let their anger get the best of them and some attorneys will seize on this to snag a client, feeding into what a client wants to hear. Instead, try to be rational. Understand that the merits of your case are based on facts and not emotions when you go in front of a judge or mediator. Make sure your attorney wants to take a deep dive into the facts of your case and that’s their sole focus in representing you. Have them come up with an aggressive way to get you a fair but also realistic settlement based on the facts of your case, not what you “feel” you’re entitled to. Also don’t be afraid to discuss your budget and the firm’s costs upfront, so that their strategy works within the confines of what you can afford to pay. And never buy these four words: “don’t worry about it.” Also be wary of an overly aggressive attorney who boasts about wasting the court’s time and the other side’s money in order to get you the biggest and best settlement possible. If they say they’ll “bully” your spouse’s lawyer into submission, think carefully about that as well. Your spouse most likely will have a lawyer who won’t back down to intimidation and this face-off of egos could lead to lengthy delays in the process, costing you valuable time and a considerable amount of money. Once the process begins, stay in communication with your attorney and make sure that you never feel marginalized. You do need to let your attorney do their job, however, that doesn’t mean it’s okay to feel like you’re being left in the dark or that they’re involved in tactics you don’t approve of. The last thing you want is to be a party to an attorney who gets held in contempt of court because you had no idea of what they were doing “on your behalf.” And if you ever feel your attorney is only paying you lip service on any issue, it may be time to kiss them goodbye at any point in the process, because from beginning to end this should always be about working together. The stakes are just too high for you not to be involved and to make sure your hard-working attorney is a good reflection on who you are. Experienced Offit-Kurman family attorneys Sandra Brooks (a member of The American Academy of Matrimonial Lawyers) and Cheryl Hepfer (listed in Best Lawyers in America) will be upfront with you at the beginning and beside you at the middle and at the end of your case. With constant communication, you can feel certain Sandra and Cheryl will never put your case in jeopardy or put their needs in front of yours.
September 15, 2023
Family Law
In A Newly Released Documentary Pope Francis Endorses Same-Sex Unions
Originally posted on 11/03/2020, content updated on 09/15/2023 In the 2018 full-length documentary about the life of Pope Francis entitled Francesco, Pope Francis, for the first time, openly shares his belief that the LGBT community should not only be freely welcomed into the Church, but that the Church needs to embrace, accept and recognize civil unions for same-sex couples. The Pope is clear and unambiguous in his discourse: Homosexuals have a right to be a part of the family… They’re children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it. This was not the first time Pope Francis has addressed the issue of the gay community and its relationship with the Catholic Church. Francis is believed to be the first pope to use the word “gay” publicly. Soon after becoming Pontiff in 2013, he made headlines when questioned about reports of gay clergy in the Church. Francis answered: “If someone is gay and he searches for the Lord and has good will, who am I to judge?” Whether the Church’s hierarchical authorities will change the teachings of the Church to reflect the Pope’s views is yet to be seen. However, Pope Francis’s forthright support for the religious recognition of formal unions for same-sex couples may be the beginning of a cultural shift in the Church’s views regarding the gay community.
September 15, 2023
Family Law
Skin-to-Skin Contact Recap
If there’s one worry every new parent shares, that worry might be sleep—or, rather, the lack of it. When the disturbances are unpredictable, the needs incommunicable, and the stress overwhelming, a baby’s crying drowns out everything else. Forget work, chores, quality time, or your own sleep schedule. Getting your baby to doze off can become a full-time job unto itself. Fortunately for anyone toiling away right now, one of the simplest sleep-inducing solutions is also one of the most effective. Plus, it’s an excellent bonding ritual with benefits for both the baby and parent. David G. Allan, editorial director of CNN Health, Wellness and Parenting, calls it the “100 strokes” method: count to 100 through “slow back-and-forth sways” while holding your baby close, or through “100 calm and steady rubs” of the baby’s back. According to Allan, the method not only frequently puts babies to sleep (well before 100), but also has a calming effect on the parent. He writes: “The number 100 became like breaths in meditation; I couldn’t hold complex thoughts on top of counting, so deeper emotions surfaced, specifically love and appreciation for the small person I was holding and touching. I was less likely to get pulled away by superfluous streams of thought and soon began to deeply enjoy these moments of seemingly forced mindful parenting.” When Allan dug deeper, he found out that science supports this method as well. Physical touch between baby and parent encourages the release of chemicals associated with happiness and relief: oxytocin, serotonin, and dopamine. This can confer all sorts of positive health outcomes: “In one study, daily massage therapy was associated with a 47% weight gain in preterm infants. In another, researchers measured the stress response in the brain when subjects anticipated an electric shock and how that response was tempered if their arm was being stroked by a loved one. There’s even some evidence that touch may reduce anxiety and depression among Alzheimer’s patients. By holding and rubbing our children, we are conveying safety and trust, relieving stress and activating our bodies’ vagus nerves, triggering a compassion response. This is what actual bonding with your child looks like.” Read “Give me some skin: A nighttime ritual to bond parent and child.” A lawyer probably can’t help you calm your baby, but if you’re losing sleep over a legal issue, the attorneys of Offit Kurman’s Family Law Practice Group can help. To learn more about our team the services we provide, click here.
September 14, 2023
Family Law
Understanding the Necessity of a Pre-Nup
Originally posted on 5/21/2018, no content changes In Pennsylvania, pre-nuptial agreements meeting the statutory requirements are generally enforceable and the best way to provide peace of mind prior to a marriage. The main reasons a pre-nuptial agreement may be necessary include: Protecting existing (pre-marital) assets; Protecting against potential future support obligations (spousal support, alimony pendente lite, and alimony); Protecting business interests, most often family or closely held businesses; Protecting assets for children of a prior relationship and Estate planning. Pre-Marital Assets: Under the Pennsylvania Divorce Code, assets that are owned prior to the marriage and are maintained in separate names, continue to belong to the individual owner in the event of divorce. However, if the value of such an asset were to increase during the course of the marriage, the increase in value would be included in the marital estate and subject to equitable distribution. Protecting against the passive increase in value of pre-marital assets becoming part of the marital estate is one of the main reasons pre-nuptial agreements are recommended. Pre-nuptial agreements can also protect against active increases in value, such as ongoing contributions to a pre-marital 401(k) or payment of a mortgage on a pre-marital home. Protecting against future support obligations: Consideration must be given to whether either party may have any support obligations in the future if the parties were to divorce. With the exception of support for children, parties can agree to contract specific provisions as to spousal support, alimony pendente lite, and alimony, or may choose to specifically negate any such obligation from arising by including certain provisions regarding same in a pre-nuptial agreement. Protecting Business Interests: The division of a business or interest in a business can be an extremely litigious and costly exercise that is often required in any divorce involving a closely held or family business. Business appraisals are almost always necessary, and the obligation of one party to buy out the other party’s interest can be onerous. In cases such as these, pre-nuptial agreements can be used to protect against this kind of litigation almost as an insurance policy as the business interest and many other aspects can be exempted from the marital estate. Protecting assets for children and Estate Planning: These two aspects often go hand-in-hand. Certain assets can be exempted from a marital estate and protected for children from a prior relationship under both a will and a pre-nuptial agreement, which provides additional protection for such assets. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
September 12, 2023
Family Law
GPS Surveillance Data in Civil Cases
They show us where we are, get us where we need to go, and prevent us from losing our way. It is hard to imagine modern life without Global Positioning System (GPS) devices. Indeed, many people not only have navigational systems installed in their cars but carry GPS around all day within their phones. As helpful and ubiquitous as the technology is, however, GPS raises complex uncertainties around privacy. Should GPS providers such as Apple and Google be allowed to retain user location data? If so, what kinds of data, and for how long? Can companies share that information? What about law enforcement—can agencies use GPS to track their suspects? Then there are concerns about individuals involved in separations, divorces, and other family law disputes. For instance: What rights does someone have to defend themselves against an ex-spouse using GPS to spy on their movements? Is information that device collects admissible in court? These were precisely the questions facing the United States Supreme Court in United States v. Jones, 565 U.S. 400 (2012), and Carpenter v. United States, 138 S. Ct. 2206 (2018). In the first case, the Supreme Court ruled that a GPS tracing device counts as a “search” under the Fourth Amendment, meaning that data must be collected under a search warrant to be admissible. In the second case, the Supreme Court clarified that the same rules apply to not just GPS data, but all phone data. To learn more, read “Admissibility of GPS Surveillance Data in Civil Cases” at the National Legal Research Group’s Family Law Research Blog. With the emergence of any new technology come new developments in all corners of the law. Family law is no exception. To stay ahead of any legal updates that may affect you and your family, be sure to subscribe to the Offit Kurman blog.
September 7, 2023
Family Law
Maryland Joins the ‘Irreconcilable Differences’ States
Maryland will become a no-fault grounds state for filing for divorce on October 1, 2023. Maryland will be adding irreconcilable differences and six (6) month separation to its rule books while also retaining the ground of mutual consent. This eliminates all fault grounds for divorce in Maryland. What does this mean? Well, back in the day, pre-October 1, 2023, one could file for divorce based on a fault ground like adultery, desertion, conviction of a felony, insanity, cruelty, or excessively vicious conduct. In the past, to obtain an absolute divorce, parties had to live separate and apart before they could even file for divorce. The change permits the court to grant an absolute divorce based on the grounds of a six-month separation for those living separately or together. This is in line with the law in many other states. Grounds for divorce that had to be proven in the past can still be considered when determining issues of custody and/or the division of marital assets. In the past, many residents of Maryland could not live separately from their spouses for the requested 12-month separation period due to limited finances. That is no longer a necessary requirement. This will certainly assist low-income families that could not afford to maintain two separate households while waiting to divide their marital assets. And folks no longer have to allege that the other spouse has been cruel or has committed adultery to get divorced. Beginning October 1, 2023, a Marylander may file for divorce on one of the following grounds: 1) irreconcilable difference, which has not been defined under the new statute, but one can presume it will include any reason the parties want to obtain a divorce; 2) mutual consent, which means the parties have reached and submitted to the court an agreement resolving all issues related to the marriage; or 3) six- month separation, which can be during the period with the parties residing in the same home. Maryland is also completely eliminating the ability to file for a limited divorce, where the parties may live apart but remain legally married on October 1, 2023. This change in the law will make it easier for Marylanders to obtain a divorce.
September 6, 2023
Family Law
What Does "No Fault" Divorce Mean?
Originally posted on 6/01/2019, no content changes. The Pennsylvania Divorce Code provides two no-fault grounds for divorce: Divorce by Mutual Consent and a Divorce based upon a One Year Separation. In the case of a divorce by mutual consent, the parties often are able to reach an agreement and memorialize the terms in a writing known as Marital Settlement Agreement, in advance or at the same time as the Divorce Complaint is filed. Other times, parties may reach an agreement and memorialize the terms after the Divorce Complaint is filed but before the expiration of the required one-year separation. In such cases, the parties can obtain a divorce decree by mutually consenting to the divorce by filing affidavits no less than ninety (90) days from the service of the Divorce Complaint. For all other cases, to avoid the necessity of requiring parties to meet the proof requirements of the fault-related grounds for divorce, a party can move a divorce matter to conclusion through court intervention following a one-year separation. Parties can be separated and still living in the same household. Proof of separation includes termination of an intimate relationship, separation of finances and representation to the community that the parties are separated. While the service of a Complaint for Divorce is a clear threshold for establishing a date of separation, a party can attempt to establish an earlier date of separation utilizing the applicable factors. The Pennsylvania Divorce Code provides for six (6) fault-related grounds for divorce: Desertion, Adultery, Cruel and Barbarous Treatment, Bigamy, Incarceration, and Indignities. Even if a divorce complaint is filed alleging one or more of the fault-related grounds for divorce, the no-fault grounds are almost always also included in the complaint. For more information on this topic please contact Megan Smith at msmith@offitkurman.com.
September 5, 2023
Family Law
Hotel Travel Tips
Have you ever wondered how you might be able to make the hotel experience more pleasant? Here are some things you may not have thought about. Some hotels send out pre-registration emails, asking for your preference as to pillows and the like. If given that opportunity, respond to the options they make available and others. They may or may not honor them, but it’s worth the effort. You may want to call your hotel to ask about some options that most do not take advantage of. If you want to be close to the elevator, have extra towels in your room, and perhaps even have an early check-in, this is the time to do it. The hotel may have more flexibility to honor your requests before you arrive. The one person who rarely gets a tip is the one checking you in. Interestingly, if you slide a $20 bill to them when you first arrive, you may receive a better room. If you’re staying a week, $20 is a small expense but may be a great incentive for some special treatment. Ask about a concierge floor. It may not be much of an additional expense, and the concierge floor often offers breakfast, afternoon snacks and evening desserts. Tip your maid every morning. If you have to turn down service in the late afternoon, leave a few dollars. The maids can take special care of you, leaving you extra water or shampoo, for example. If you wait to leave the tip until the day you leave, you have missed an opportunity. To avoid confusion, leave the tip on the pillow on a turned-down bed. That way, the maid knows it is there to take. Ask for your bill the night before you check out, so that you have an opportunity to review all of the charges before you are in a rush on the way out the door. Ask for a delayed checkout if that will help you. Generally, if you ask early enough in your stay, you can get a few more hours before you have to leave your room. If you have a late departure for the airport, schedule a spa day at your hotel or the best hotel in the city in advance and spend the afternoon at the spa. If you book just one session, you can spend the entire day in the sauna or steam room. Check carefully before you leave your room. It’s not a bad idea to have a written checklist that you keep in your suitcase so that you remember to check the outlets and the refrigerator before you leave. Ask for bottled water when you check in, when you leave the hotel, when you’re in the gym, and when you check out. Most hotels provide bottled water upon request.
September 5, 2023
Family Law
I Don't Have Many Assets...Do I Need A Pre-Nup In Pennsylvania?
Originally posted on 10/11/2019, no content changes. Regardless of a person’s current assets, a pre-nup is always prudent prior to entering into a marriage because a it can offer so many things other than just protecting the assets you have before your marriage: Pre-Marital Assets:Assets accrued prior to a marriage are largely protected from an equitable distribution (division of assets) incident to a divorce in Pennsylvania. However, the growth of those assets (i.e., increase in value) that occurs during the marriage will be considered part of the marital estate and subject to equitable distribution. Not only can a pre-nup protect the growth on the pre-marital assets during the marriage and ensure this increased value remains separate property (does not get divided incident to a divorce), but it can also take the case law and statutory protections that currently exist and extend those protections. For example, a pre-nup can extend protection in the event that a pre-marital asset is co-mingled or otherwise used for a joint purpose during the marriage. Without a pre-nup, co-mingling of a pre-marital asset often may be considered a gift to the marriage, and the pre-marital status may be lost. Assets Accrued During the Marriage: In Pennsylvania, assets and income accrued/earned during the marriage are largely considered “marital” property and thus subject to equitable distribution (division of assets incident to the divorce). A pre-nuptial agreement is able to exempt assets that may be accrued during the marriage as a party’s separate property, thereby avoiding distribution in the event of a divorce. Real Estate: Whether real estate is acquired before or during the marriage, if there is a mortgage or other maintenance/capital contributions to a home during the course of a marriage, same may give rise to a claim for equitable distribution of this asset. A pre-nup can clearly define what, if any, of a pre-marital residence or a residence purchased using pre-marital funds is or is not subject to division between parties incident to a divorce (example: pre-marital savings used for the down payment on the marital home). A pre-nup can go even further and provide one party the option to purchase the other party’s interest in real estate in the event of a divorce as well as a clause for vacatur of a home following a specified event (i.e., notice of wish for divorce or receipt of the filed Divorce Complaint). A pre-nup can even go so far as to address how bills will be paid and each party’s obligation to contribute, including addressing issues of unemployment, staying home with children, among other possibilities. Retirement Assets: Due to the fact that retirement assets are subject to equitable distribution, this is yet another reason for a pre-nup. If you are a saver and your significant other is not, do you want to give him/her half of your retirement savings in ten (10) years if your marriage ends? Whether retirement savings are accrued before or during a marriage, a pre-nup can address how such assets should be divided, as well as the growth on those accounts during the marriage. Gifts and Inheritances: Similar to pre-marital assets, gifts and inheritances by one party/spouse are largely protected from equitable distribution, however, a pre-nup can provide additional protections, including protection in the event of passive growth and co-mingling. Protections in the Event of Death: A pre-nup can provide protection of assets and elective share rights in the event of death. This allows you to leave your assets to whomever you wish (children, other family members, etc.) and prevents your spouse from taking against your estate under intestacy or elective share unless you specifically leave asset(s) to him/her under a will. For more information on this topic, please contact Megan Smith atmsmith@offitkurman.com.
August 31, 2023
Family Law
Domestic Violence: Now an Enumerated Factor in Determining Equitable Distribution
Originally posted on 12/11/2020, content updated on 08/30/2023 While New York was justifiably preoccupied with the COVID pandemic, its Governor at the time quietly signed into law a groundbreaking amendment to that portion of the state’s divorce law governing the distribution of marital property, directing that the Court, in determining the equitable distribution of property, to consider “whether either party has committed an act or acts of domestic violence … against the other party and the nature, extent, duration, and impact of such act or acts.” (2020 NY Senate-Assembly Bill S-7505-B, A-9505-B; New York Domestic Relations Law §236B(5)(d)(14), (as amended)).In New York, marital property is not automatically divided equally. Rather, the division of property is undertaken so as to ensure that there is an “equitable distribution,” based on an enumerated set of factors.[i] In New York, marital property is not automatically divided equally. Rather, the division of property is undertaken so as to ensure that there is an “equitable distribution,” based on an enumerated set of factors.[i] Equal at times may be equitable, and equitable at times may be equal. But they do not mean the same thing. “Equitable” is a model fixed in fair-mindedness. What is fair in the apportionment of assets fluctuates depending on the circumstances. A Court has great flexibility in fashioning an equitable distribution of marital assets subject to the fourteen (now fifteen) enumerated factors set forth in DRL § 236 (B)(5)(d)[ii], which include the: income and property of each party; length of the marriage; age and health of the parties; (any) support award; contributions, whether good or bad, to the acquisition of marital property; future financial circumstances of each party; and the wasteful dissipation of assets. Prior to the law’s amendment, the 14th and final factor was the universal legal catchall of “any other factor which the Court shall expressly find to be just and proper.” This 14th factor was rarely used by the Courts to include domestic violence in the consideration of the division of marital property. Courts have long been wary, indeed at times dismissive of the existence of domestic violence as a factor to be considered in influencing equitable distribution. This has been especially true since 2010, the year New York became a “No Fault” state – no longer requiring that one of six grounds of fault be proven before a divorce would be granted. As a result of no-fault divorce, the use of the one enumerated ground for divorce which permitted a party to interpose allegations of domestic violence, coercive control, physical and emotional cruelty in all forms, collectively referred to as “cruel and inhuman treatment” [iii] — has virtually vanished.[iv] Cases speaking to and utilizing noneconomic marital fault as a consideration in the division of marital property i.e., cruel and inhuman treatment — have been generally held to a standard wherein the Court determined that the abusive behavior was shocking to the conscience of the Court, i.e., “egregious or outrageous” — though those terms were never defined with any specificity.[v] Essentially, if the act or acts of domestic violence proffered to a Court did not rise to that particular Judge’s individual interpretation of egregious or outrageous conduct, then the act or acts were not considered in the context of DRL §236B. Now, however, with the amendment of Domestic Relations Law §236B(5)(d)(14), judges must include in their determinations of the equitable distribution of marital property all acts of domestic violence, in all of their iterations. Domestic violence as a consideration is no longer “left to the fates.” Rather, its existence is a specific factor that the Courts are required to confront, address and measure in their apportionment of marital assets. [i] K. v B., 13 AD3d 12, 17 (1st Dept 2004). [ii] G.R. v K.R., 2020 NY Slip Op 50976(U). August 21, 2020. Sup.Ct., New York County, Cooper, J. [iii] DRL 170(1): Cruel and inhuman treatment such that the conduct of the defendant so endangers the physical or mental wellbeing of the plaintiff as renders it unsafe or improper to cohabit with the defendant. [iv] Though it remains a viable ground for divorce, as do the other previously existing grounds for divorce. [v] Blickstein v. Blickstein, 99 A.D.2d 287 (2nd Dept. 1984),
August 30, 2023
Family Law
Divorce in New Jersey - Gathering Data
Originally posted on 2/21/2019, no content changes. Information is power. In order to be in a position to deal with issues in your divorce case, you must have information concerning assets, debts, income and expenses. No agreement or settlement can be considered fair unless you have full knowledge of the marital finances. Toward that end, you should begin gathering information on income, expenses, an itemization of all accounts, pension information, employment benefits, insurance information and all other financially relevant information at the outset of your case. Do not assume that you know the answers. Do not trust your spouse's verbal representations. Do not be overly suspicious or distrustful. In virtually every case, the basic information which you should begin gathering are copies of: The past three years' personal tax returns. The current year's bank statements. The current year's brokerage account statements. The current year's credit card statements. Any quicken or a similar computer software program itemizing your expenses. The last three years' year-end employment benefit statements for you and your spouse including 401(k) plans, pension, deferred stock, stock options or deferred compensation. Copies of any life insurance policies. Policy numbers, insurance company names and coverage limits for health, auto and homeowners insurance policies. In any case in which one of the spouses is self-employed, owns a small business or is a shareholder in a closely held corporation, you should also try to obtain copies of: The past three years' tax returns for the business. The past three years' financial statements for the business. Any loan applications with supporting financial statements submitted to a lender by the business. Any Buy-Sell Agreements. As you and your attorney begin to see the financial records, you should discuss with your attorney whether you need to employ a forensic accountant. If there are assets which cannot be located or easily defined, if there appears to be unreported or cash income or if there is a professional practice or business to be evaluated you will almost certainly need to engage an accountant. In some cases, we do encounter a spouse who will deliberately attempt to conceal the records, and if that happens in your case, you and your attorney must take a much more aggressive and proactive approach. For example: If you know there is cash in your home, you should take it into your possession and immediately inform your attorney. If you know there is a second set of books or business records, you should copy them, seal the copies in an envelope and mail them to your attorney. The postmark will identify the date in which you obtained and mailed the records, the integrity of them can then be protected by your attorney's office. If you begin to see mail or financial statements that are not familiar to you, make copies. If you have access to your spouse's cell phone records, make copies. Make copies of any credit card statements whether they are your accounts, your spouse's accounts or joint accounts. The more information you can gather, the better informed you and your attorney will be as you begin the formal discovery process discussed later. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 29, 2023
Family Law
Divorce in New Jersey - Discovery
Originally posted on 3/12/2019, no content changes. Discovery is a variety of processes which are designed to accomplish exactly what the word implies: to discover additional information or factual data. The scope of discovery is very broad. Simply stated, the rule is that you can ask for everything which is relevant “or may lead to relevant information.” There are various types of discovery. Some of the most common are: Interrogatories - Interrogatories are written questions which you submit to your spouse, which must be answered in writing and under oath. There is a tendency to ask broad, all-encompassing questions in order to avoid the risk that something may be overlooked. However, many times, such an approach to discovery is ineffective and unproductive. On the contrary, carefully phrased, very specific questions are more likely to produce specific responses which will be helpful to you and your attorney. Notice to Produce Documents - Notice to Produce Documents requires your spouse to produce any documents which are relevant to the case and which are either in their possession or subject to their control, such as employment records, bank or brokerage accounts which are in their name, or pension and IRA account statements. Oral Depositions - In some states, this proceeding is called an Examination Before Trial. That is exactly what it is. It is your attorney’s opportunity to examine or to take testimony from your spouse or any other witness before trial. They are placed under oath so that all of their answers are “sworn testimony.” The proceeding is in the presence of a Court Reporter who records the questions and answers verbatim. The questions and answers of your spouse are evidential and can be submitted directly into evidence at the time of trial. For other witnesses, they can be very valuable tools to confront and contradict statements made at the time of trial. Appraisals - Appraisals are regularly conducted to determine or verify the value of a specific asset for the purpose of dividing the same incident to equitable distribution. Experts are retained and utilized for this purpose. Assets that are often subject to appraisal incident to a divorce include real estate, businesses, pensions, jewelry, artwork, and vehicles. Very often, clients are concerned that their spouse will not respond to interrogatories or notices to produce and/or will stall, delay or refuse to appear for an oral deposition. Those are understandable but not reasonable concerns. The Court will enforce reasonable discovery requests and will be very impatient with a party who has frustrated or unreasonably delayed discovery. The Court may: Limit or bar a person’s trial testimony if they have not cooperated with discovery; Assess counsel fees against the offending party; or In some instances, impose monetary sanctions and penalties against the offending party. Remember, on the other hand, that Discovery is a “two-way street.” While you have every right to require your spouse to participate in Discovery, you, correspondingly, have the obligation to respond to reasonable requests from your spouse. If properly conducted, Discovery will provide both parties with an information base to allow them to negotiate fairly and enter into a Settlement Agreement. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 25, 2023
Family Law
Avoid Future Arguments with Your Ex By Using A Parenting Plan
Divorce can mark the end of a conflict or the beginning of many more. The difference frequently comes down to the parenting plan—whether one exists and, if so, what it does and doesn’t cover. A parenting plan is an agreement between individuals over child custody. Parents undergoing a divorce or separation may decide to use one for numerous reasons: to spell out the terms of a complex custody arrangement, to avoid future litigation, or simply because state law requires them to submit a plan. As with any legal document, the way a parenting plan is written matters. A well-drafted plan eliminates uncertainty over custody matters and safeguards the best interests of the parents—as well as their children—in the event of a dispute. An ambiguous plan, on the other hand, can create friction and stress. And when no plan is in place at all, the parents are setting themselves up for countless future arguments, big and small. Let’s start with the big ones. Without a parenting plan, parties involved in a divorce may clash over child custody and visitation rights, as well as various related personal and financial issues: Will one person be the primary caregiver, or will each parent spend time with the child or children? When, where, and for how long? How will the parents split monetary responsibilities, such as tuition and medical costs? Who gets to decide the cultural, linguistic, and religious environment(s) in which the child or children are raised? What if a new spouse enters the picture? Will that person gain parenting rights? What if a parent moves out of state, or out of the country? As important as those questions are, they shouldn’t entirely eclipse other, smaller matters. Seemingly trivial details can spark major disagreements: Who will be transporting the child or children from one parent’s residence to the other? What happens if a parent can’t visit or take custody of their child or children for a given period? Should they be allowed to schedule additional time or is it forfeited? Should one parent be allowed to significantly alter a child’s appearance, e.g. with a new haircut or piercing, without the other parent’s knowledge? How much control does a parent have over which activities the child or children can engage in while under the other parent’s care? What if a parent becomes seriously ill, or can’t take care of the child or children for another reason? If an unexpected conflict arises, how will the parents resolve the dispute? What’s the best way to avoid a court battle? When determining child custody and visitation, these are only a few of the many questions you need to consider. The sooner you discuss your plans with an attorney, the better your chances. If you have any questions on this topic, please contact Sandra Brooks at sbrooks@offitkurman.com or 240.507.1716.
August 23, 2023
Family Law
Divorce in New Jersey - Filing a Complaint
Originally posted on 2/21/2019, no content changes. Oftentimes, it is difficult to get a client to file the Complaint for Divorce. They may be reluctant to do so for religious or moral reasons or sometimes because they simply do not want to be the person who initiated the divorce. On the other hand, some clients want to prematurely file the Complaint out of anger of resentment. Try to avoid making the decision for such reasons. Discuss with your attorney whether there are any legal issues which may affect the timing of the divorce filing. Sometimes, there are medical insurance issues, sometimes there are pending changes regarding your assets, or sometimes there are significant pending changes in your income of employment status. Any of those could significantly affect the decision as to whether or not a Complaint for Divorce should or should not be filed. Absent such legal considerations, is usually does not make any difference who files first or on what grounds. As to the grounds for divorce, New Jersey has “no fault grounds." Irreconcilable differences is now the most often used no-fault ground. However, notwithstanding the ease of using such ground, you should review with your attorney whether or not a fault ground should be used. In some cases, the fault may be so egregious or may have such a significant impact on the family finances that it should be used. For examples, a history of violence, substance abuse or alcoholism may be very important with regard to parenting issues. Or, a long history of infidelity, particularly when family income or resources have been squandered on extramarital affairs, may be relevant as to how the remaining assets should be distributed. Or, fault which involves or affects the children may be relevant to custody issues. When considering a fault ground, however, a word of caution is appropriate. You should not be over zealous. For examples, you may not want to call instances of marital infidelity with a subordinate to the attention of your spouse’s employer if to do so may result in them losing their job. Similarly, unnecessarily or inappropriately disclosing unreported income may result in IRS liens or penalties, which could be minimized of avoided with a more reasoned approach. If the disclosure of such matters is important to your case, your attorney can discuss with you the use of arbitration or another alternative dispute resolution. The date of the filing of your complaint for divorce is an important date. It will serve as the baseline or starting point for the determination of your financial status relative to your divorce. Therefore, discuss it carefully with your attorney. For more information on this topic, please contact Megan Smith at msmith@offitkurman.com.
August 22, 2023
