A few weeks ago I went to the annual Pennsylvania Council on Mediators Conference.  One of the wonderful things about going to a conference is that it gives me time away from the day-to-day practice to refresh and reconsider.  The positive energy in the  seminar rooms reminded me that for many couples there may be a kinder way to dissolve their marriage,  and  I came away with renewed dedication to promoting  the tools in my alternative dispute toolbox  to make the divorce practice less stressful for our clients.

Much of traditional divorce practice  can devolve into a win/lose strategy.   When the Court titles the case  Smith versus Smith or  Jim versus Jane, the matter organically starts out as he against she fight.    So,  when we begin with Jim  fighting Jane, or vice versa,  it seems reasonable for the parties to think they need a “heavyweight” in their corner.    Indeed,   in our office we sometimes field calls from potential  clients asking   if we can fight for them like a bull dog?    We understand that clients may be  hurt and/or angry and think they need  a lawyer  who will  bark and roar and bite if necessary  to win,  but we think this approach to divorce  oftentimes  results in long-term destruction to family good will, and fractured lives– especially if children are  involved.    Alternatively, if the divorce process can be framed not as a one versus the other, but as an action in the best interests of the family  to move forward with the least destruction all the parties (children included) may come out more whole.

Consider Alternatives to the Traditional Process

Traditional divorce often is a closed, rather than an open process.  An adversarial  couple may dispute  sharing  child custody,  schedules,  routines, etc,   child and spousal support may be litigated and  equitable division of assets may be hotly disputed.    Not surprisingly, the more unresolved feelings between the spouses,  usually the more issues  end up  in court rather than worked out through negotiation and settlement.   Custody may end up being decided by a third party who really does not know the child(ren).     Nasty things may be written in  pleadings filed with the court.    A  court appointed Master may determine how much a spouse will pay to support a family.      Parties reluctant to divide assets fairly may try to hide assets.      Costly discovery becomes necessary when there is distrust and fear of hidden assets.   The attorney must do due diligence  to look for the hidden assets.    Parties may return to Court numerous times  for hearings.    The process can drag on,  and costs  will  escalate.    In the end neither side may be happy with the results,  nor with the aggressive attorney that the party wanted so desperately to  hire at the start.  Indeed,  one or both parties  may find that the “bulldog”  chewed up a lot of  assets,  and  tactics employed unintentionally may have destroyed any goodwill that still was  intact  in the family. Continue reading

Divorce if never easy, but if you have children, the issues are complicated in a way that differs from economic issues.   Spousal and child support and division of property involves mostly you and your spouse, if you have children, however, they are affected at every stage of your divorce. And how you deal with your children from the very start of your separation through the children’s adulthood can have profound impact.

Oftentimes parents think they can protect their children from the struggles of their parents. Unhappy couples may stay together for the sake of the children.   Child psychologies differ on whether, in fact, this does children well.   Children are extremely sensitive and pick up upon the tension, anger, and hurt that parents may be experiencing even if parents may be “putting on a good face.”   Thus, the idea of “sticking it out” until the kids are grown, while well intentioned, may not be the best choice—especially if the level of discord between the parents is high.

If you have decided to separate, involving your children in suitably in the separation and divorce process is exceedingly important. Child development experts agree that being upfront with children and telling them what is happening is important.   Edward Kruk, PhD., advises that you should talk with your children about divorce.

Recently, the Superior Court of Pennsylvania provided some helpful clarification for custody litigants. The case, R.L.P. v. R.F.M., involved a custody order which was delivered orally by a Judge sitting in Montgomery County. This means that the Judge explained the Custody Order on the record and subsequently let the transcript of the hearing serve as the order. The Superior Court’s opinion clarified that all custody orders have to be delivered in a separate, written order.

This is important for several reasons. Custody Orders are frequently complex, and rightly so. Parties should walk away from a custody trial with no confusion as to how they are going to co-parent their children. In R.L.P. v. R.F.M, the transcript of the trial (which subsequently became the order) was 46 pages long, and included corrections and confusions. The Superior Court noted that when an order is confusing or contradictory, it is significantly harder to enforce.

When a Judge explains the intricacies of a Custody Order in the courtroom, oftentimes it becomes difficult to then enforce that order. In this case, the Superior Court noted that in order to understand the terms of the order, one had to read the transcript several times. A separate, written order gives both parties a tangible document to look to for guidance if a disagreement regarding the children presents itself. A Custody Order delivered orally on the record is just one example of a very dangerous phenomenon in family law: vague orders.

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ANGRY EMAILS? … HOSTILE TEXTS? … NASTY LETTERS?  

Consider the BIFF RESPONSE® METHOD

Have you been the recipient of angry tests, nasty emails, and ugly outbursts in public?   Has your ex said nasty things about you on a social media site?   Has the parent of your child said bad things about you?  Have the things said made you angry, embarrassed, humiliated, or infuriated?   Have you reacted and then perhaps regretted your reaction.  Have you found yourself in a hearing with the threat that nasty texts between you and your partner were going to be presented to a judge?      In our family law practice we come across all kinds of situations and people.  The cases that present the most conflict, however,  often involve one party who seems to thrive on hostilities.   Our philosophy is to minimize conflict.    Our goal is to reduce the anger and angst of family matters,  so when a case presents with communication difficulties between the parties—especially  unkind, nasty,  accusatory messages–  we seek out ways to help clients learn skills to deal with  the high conflict people who  engage them and the attendant situations.  Thus, we are sharing the BIFF  Response Method of Conflict Resolution here.

One of the more common questions a client asks when consulting a divorce attorney is “how much will this cost?”  There is no easy answer to this question, as it depends on any number of factors- is the spouse in a fighting mood? Is their attorney not prone to encouraging settlement? Are there complex assets at stake that take time and money to understand?

A lengthy and protracted divorce can cost thousands, and even individuals receiving monetary support from the spouse they are divorcing can run up against mounting bills. If the parties establish separate residences, suddenly both are attempting to sustain a household with only their income, where once they had a partner. This all coincides with a monthly expense few people account for in their personal budgets- attorney’s fees.

These booming expenses may result in parties getting creative about their finances.  Some choose to try and cut down on living expenses, some charge it on a credit card and hope for a favorable payout at the end of the road, and some dip into their retirement just to get by.

Should I Use Retirement Funds?

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If the parties to a divorce own a business, or a share in a business, it is a valuable asset to be considered and should be valued.   In cases where only one spouse works in the business he/she may suggest that they both know its’ value because for years they have lived off the business and there is no reason to spend  money hiring experts.     What a business “throws off,” or what the parties have been taking out of the business, however, even if accurate, is only one aspect of its worth– not its true value.   For example a dentist may bring home a certain amount each month; but the dental practice has value  extrinsic to the dentist’s salary.  There is value in the practice  client base, its equipment, its reputation, its’ location, perhaps its’ building—and a certain amount of the value of the business may be based upon the  personal “good will” and reputation of the dentist.

The Business is a Marital Asset and Gets Divided

The party who has built up the business and worked it day in and day out,  may feel that it is his/her business and the other spouse has no entitlement to it.   He/she may resent having to share the business upon divorce.  Unfortunately, the harsh reality is the business is a marital asset, and just like the marital home, bank accounts, and retirement, etc.,  it is  subject to equitable division.   And, unless the business is being sold,  reasonable and fair division is not possible without a proper assessment of its value.

Hiring a Qualified Business Valuation Expert

Each party has the right to hire a Business Valuation Expert.    When considering whom to hire, the qualifications and background of the expert is important.  While an accountant may be able to review the numbers, it is preferable, especially for in-court testimony, that the expert have a recognized national certification as a CVA (certified valuation analyst).

The  business valuation  report should include an in-depth analysis of numerous factors essential to a final conclusion.   Among those factors should be:  the company background and history;  company financial information and analysis (including historical data and future income stream);   a discussion of personal goodwill (if relevant)  and  the method used for the valuation.   The valuation should include a comparative analysis of similarly situated entities both locally and within a market that is relevant.   Oftentimes when each party has hired well-qualified business valuation experts the valuations come back within amounts close to each other–giving the parties greater comfort in the quality of the valuation.

Should You Stay on As a Partner in a Business Post-Divorce?

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Divorce  never is easy, but if you have children the issues are complicated in a way that differs from the economic issues.   Spousal and child support and division of property involves mostly you and your spouse.   If you have children,  they are affected at every stage of your divorce. ..and how you deal with your children from the very start of your separation through the children’s adulthood can have profound impact.

Oftentimes parents think they can protect their children from the struggles of their parents. Unhappy couples may stay together for the sake of the children.   Child psychologies differ on whether, in fact, this does children well.   Children are extremely sensitive and pick up on the tension, anger, and hurt that parents may be experiencing — even if parents may be “putting on a good face.”   Thus, the idea of “sticking it out” until the kids are grown, while well intentioned, may not be the best choice—especially if the level of discord between the parents is high.

If you have decided to separate, involving your children suitably in the separation and divorce process is exceedingly important.  Child development experts agree that being upfront with children and telling them what is happening should be a  major consideration.   Edward Kruk, PhD., advises that you should talk with your children about divorce.

  • Provide facts about what is happening between mommy and daddy without going into the reasons.   You can let your children know that their parents have differences and will no longer be living together, but you do not have to give the reasons why.
  • Allow children their questions, and answer them honestly. This is essential. Your children may want to know what will happen to them; where they will sleep, will they still see their friends and family, whether they will have to move. Be clear about what will happen in your children’s lives.
  • Remind the children that both parents love them and that the cause of the parent’s split has nothing to do with the children this is critical.

Children may fantasize that parents will get back together.   It is best to not let them indulge this fantasy to excess.

Dr. Fran Walfish a family and relationship psychotherapist and the author of The Self-Aware Parent: Resolving Conflict and Building a Better Bond with Your Child adds the following tips for the newly divorced or divorcing parents: Continue reading

In today’s day and age,  more commonly grandparents are playing a direct role in raising their grandchildren.  Whether this occurs as simply a child care option during the parent’s work day or a permanent solution to an absentee or even deceased parent, often grandparents find themselves being significantly involved in their grandchildren’s everyday lives.

Too often, however, a contentious custody battle may arise leaving grandparents cut off from access to the grandchildren.    As a result of  changes in custody law in Pennsylvania, Grandparents  (and certain other interested adults)  seeking legally enforceable ways to see their grandchildren  no have more avenues through which they can proceed depending on the type of custody they wish to establish.

Standing and In Loco Parentis

To seek custody in a courtroom setting, an individual must have “standing,” or meet certain requirements to sue.  In the custody setting this requires that the individual have a pre-existing history of parenting the child in question, or stand in loco parentis to the child.   Grandparents and great-grandparents are the only type of relative (other than a biological parent) who are explicitly given the right to sue under state law for custody or visitation.

Amendment to  the PA Custody Law 

Recently, the Pennsylvania legislature amended Sections 5324 and 5325 of the Custody Act to expand the definition of individuals qualified to sue for custody of a child. This expansion occurred in large part due to the enormous impact that opioid addiction has had on children’s lives in homes across the state, and the desire of the state to allow family members to intervene for the children’s better interests.

Looking to the Needs of the Children Continue reading

TO MOVE OR NOT TO MOVE …

One of the more frequent questions that come up in our practice is whether a party can or should move out of the marital home before or during a divorce proceeding. The answer, unfortunately, is not a simple yes or no. And often it comes up after someone already has moved out!

Reasons why one might want to leave a marital home before or during a divorce are: physical and/or emotional abuse; infidelity; new employment; the emotional need to get away, etc.   The are equally compelling reasons to stay in the home during divorce proceedings   and perhaps live separately under the same roof, such as the financial considerations –savings offered by not having two residences, convenience; parental obligations or concerns about parenting. Each situation is different.      It is wise not to be impulsive about the decision of whether to leave or stay.   Consultation with an attorney is best, to learn fully what your rights and responsibilities are.   At a minimum there are certain items, which must be considered,

 Custody, In Loco Parentis and Reproductive Assistive Technology

With more couples building families through reproductive assistive technology, custody questions  may become an issue  if the original family is no longer is intact, if the parents never married, and/or if the non-biological parent did not adopt the child.   More and more courts are being asked to determine custody in these cases.   There are steps that couples can take to help avoid or minimize this intervention.   The  facts and result in a recent Pennsylvania case are instructive.

In the  case of C. G. v. J.H.,  J.H. conceived a child by artificial insemination.    C.G. and J.H. were not married and Florida (where they resided)  did not recognize same sex marriage at that time.   J.H. was the biological mother.   The child, J.W.H. , was born in Florida in October 2006, while C.G. and J.H. were living together as a same-sex couple.   C.G. and J.H. continued to live together for about five more years.   The relationship, however,  began to wane and J.H. moved with the child to a separate residence in Florida and then moved to Pennsylvania in July 2012.

About three years later, in 2015, C.G. petitioned the Pennsylvania Court for shared legal and partial physical custody, alleging that she, C.G. “also acted (and acts) as a mother to the minor child …[and] the minor child was conceived by mutual consent of the parties with the intent that both parties would co-parent and act as mothers to the minor child.”    Since C.G, was not the biological parent,  J.H. alleged that she did not have  “standing” to bring the matter at all.    Because the parties were not married at the time of conception, and because C.G. did not adopt the child,   the trial court held extensive hearings looking into the roles of each party to determine whether there was sufficient status for C.G, to raise the claim for custody.   iStock-517851326-300x220

As might be expected, the testimony conflicted.   Just as in a traditional custody case, the parties presented extensive evidence including  who attended to the child’s “[p]hysical, [e]motional, and [s]ocial needs.”   Testimony including facts of  day-to-day life was considered by the judge, as were facts regarding  decision-making about the child’s medical and educational needs, child care, financial support and other items.
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