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May 12, 2020

Mediation and Family Law in the time of COVID-19

As you know if you are a regular reader of this blog, I am a big fan of Mediation generally. I favor Mediation in Family Law because it gives parties ownership and control over their destiny. I always believe that Mothers and Fathers, Husbands and Wives know more than a Judge about their own lives and what is best for their families. In the time of COVID-19, I am an even greater proponent of Mediation. Mediation now gives you the opportunity to have a ready forum to resolve your dispute. If you are waiting for a Judge to hear your case- dig in–you may be waiting for months or even a year. If you decide to mediate –you may get the resolution you need before we come out of quarantine.

Why Mediate Now?

I just got off one of the many Zoom calls about Family Law updates that I am on weekly, and the news I have to report is that in our courts family law matters are NOT likely to resume soon. While technically many Philadelphia area courts may be re-opening on June 1st, nothing will be business as usual. The backlog is enormous. All filings continue, but only emergencies are being heard. The four county area of Delaware County, Chester County, Montgomery County and Philadelphia County, each are handling their re-openings differently, but the essential message from family court Judges and administrators is to expect disruption and delays for a long time into the future.

September 20, 2019

Mediating with a Narcissist—Think Again

by Bookspan Family Law, LLC

Mediation is a wonderful tool for resolving disputes. In divorce, especially, it can be an empowering and healing process. However, not all marriages can be dissolved through mediation, and you almost never can successfully mediate with a narcissist. The irony is that living with a true narcissist is a prime cause of divorce.

The shared love, compromise, mutual understanding and support necessary for a marriage to thrive are lacking in a narcissistic relationship. If you are considering a mediated divorce, before proceeding we suggest carefully evaluating your current relationship and your partner to see if mediation really can work for you.

The term narcissism is used with almost abandon in common parlance today to describe people who may be self-absorbed and think highly of themselves. However, a degree of withdrawal into one’s self and having positive feelings about one’s self are not always negative qualities. Such traits are common in many successful people who may be driven to excel. Indeed, they may be essential for certain professions and tasks. Narcissism appears on a spectrum from arrogance and conceit to full blown Narcissistic Personality Disorder (NPD). If you are married to a successful partner who has become aloof, arrogant, and/or checked out of the marriage, that does not mean that your spouse is not a good candidate for mediation. Look closer.

The kind of narcissist not suitable for mediation is one with real NPD. About 8% of men and 5% of women in the United States have NPD. This is a clinical diagnosis for a cluster of traits that define a narcissistic personality. Psychiatrist, Stephen E. Levick, in his book Clone Being says that “people with Narcissistic Personality disorder have a sense of grandiose self -importance and are pre-occupied with grandiose self-fantasies. They believe that they are special and unique, and only want to associate with other special high-status people or institutions and may show arrogant haughtiness in the way they relate to others. Requiring excessive admiration, they have an unreasonable senses of entitlement, lack empathy, and are interpersonally exploitative…. Self-righteous rage, exhilaration and shame associated with anxiety are states of mind associated with Narcissistic Personality Disorder.” The need for admiration, sense of entitlement, lack of empathy, and leanings toward exploitation are what make successful mediation impossible with someone with a narcissistic personality. Continue Reading

December 21, 2017

The new national tax law has immediate impact on families

by Bookspan Family Law, LLC

The Republican Tax Bill brings sweeping changes to the nation’s tax code. As the country adjusts to the revisions and comes to understand the implications, we take some time to highlight the immediate impact this law will have on families –both intact and those who are facing divorce. Follow this blog for more details later.

Revisions in the tax code will affect:

EDUCATION: 529 accounts are expanded to include private school and home schooling.

Currently families can save for children’s college education with the use of tax protected 529 accounts. In a 529 account your money grows free of any capital gains taxes and currently it can be withdrawn without any penalty to pay for higher education expenses. Under the new bill, the use for money in 529 accounts is expanded. You now will be able to withdraw up to $10,000.00 per child, per year, to pay for private school or for educational expenses that are used for home schooling. Money that is in a 529 account also may be rolled over to ABLE accounts, which are used for people with disabilities.

ALIMONY: Alimony is no longer deductible for the payor spouse and no longer taxed to the recipient spouse.

This change in the tax provision regarding alimony does not go into effect until 2019; however, parties in the midst of divorce must be aware of it now as it may have a significant effect on negotiations in equitable distribution agreements. Understanding the effect of this dramatic change in the tax implications of alimony is important. If you currently are receiving or paying alimony your agreement may be modified with certain specific language to comply with the new tax rule. Your attorney should have access to the modification language. Continue Reading

July 28, 2017

Is Family Law Ready for the Concept of ‘Conscious Uncoupling’?

by Bookspan Family Law, LLC

After Gwyneth Paltrow announced her split from Chris Martin, the actress called the separation “conscious uncoupling.” This introduced couples to a more amicable way of divorcing. But are family lawyers ready for this concept?

We enter a marriage with great home and excitement. Love is over-powering and intoxicating. We plan and pull off beautiful weddings, and build homes, families, and careers. We believe we have found our soul mate and that this is forever. For a host of reasons, many who divorce never come to fully understand why the relationship fell apart. Depending upon who initiates the breakup, or how the marriage comes undone, it may feel like “the end.” Even today, when the divorce rate is close to 50%, divorce may feel shameful or like a personal failure.

There is no denying that going through divorce is one of the most difficult things that one may do in a lifetime. Personal resilience, family dynamics, friendships, finances, and community are challenged and tested. Depression is common. The sense of exposure, the ringless finger, and the fear of being poor or being single again is common. Like all things, however, the closing of one door allows another to open. While not easily visible—especially if the parting is not mutual—opportunity is there.

July 12, 2017

Charging an Ex Spouse Rent in Pennsylvania Divorce

by Bookspan Family Law, LLC

When can rent be charged to a Spouse living in the Marital Home Alone?

Spouses that have been displaced from their marital home during divorce proceedings may find themselves put in the position of paying for a home they have no ability to enjoy. This commonplace situation has led to a general rule in Pennsylvania Courts that a dispossessed party can claim a credit for the fair rental value of marital property which is jointly held against the spouse in possession at the time of equitable distribution. See Middleton v. Middleton. Effectively, they can charge the spouse enjoying the marital home rent for the time that spouse spends in exclusive possession of the property. However, this general rule is firmly within the discretion of the court to award, and is subject to further restrictions in order to adjust to the specific circumstances of the parties.

Factors affecting Rental Credit Awards:

To the extent a rental credit may be awarded, it is limited by the amount in which the dispossessed spouse had a personal or financial interest in the property. In Lee v. Lee, this caveat allowed a Wife who used premarital funds to buy and eventually re-finance the marital home to undermine her Husband’s interest in the home, and therefore whether the amount of rental credit due, if any.

Another central factor in determining the amount of credit is the period of time the spouse was dispossessed and the other spouse was in possession (actual or constructive), of the property.

Additionally, the credit is subject to an allocation for any expenditures made by the possessing spouse in order to maintain the property on behalf of both spouses. This includes repairs or any contributions towards mortgage and tax obligations for the home.

Another crucial factor requires that the party have an actual right to be physically present in the home. Regardless of legal title, if one party has been excluded from the home pursuant to a PFA Order, the court ruled in Lee that they are not entitled to a rental credit for the time the Order has excluded them, regardless of whether or not they were already dispossessed prior to the issuance of the Order.

Again, this is a circumstance-specific analysis, and one party’s superior financial obligations will not necessarily support a rental credit award. In Schneeman v. Schneeman, the court denied a credit notwithstanding that the dispossessed spouse paid the mortgage, insurance, and taxes. This is because the possessive spouse received a deviated amount of spousal support during this period, which the court considered an indirect contribution to the expenses. In Lee, the court viewed the fact that the Wife initially urged the Husband to vacate the premises sooner rather than later weighed in favor of granting the husband a rental credit.

What about other people living in the house with my spouse?

As a rule, no rental credit will be awarded when a minor child is living in the marital home. The general rental credit rule, however, has interesting effects in practice when the court considers the relevance of other solvent adults- typically the parties’ adult children- living in the marital property. Judge will look at the specific facts when considering whether a non-resident party is entitled to a credit for allowing the parties’ adult children to live in marital rental property. The surrounding circumstances of the litigation must support a credit considering the relative economic positions of the parties, and courts may not be inclined to allow the credit absent a showing of need or extenuating circumstances. Continue Reading