Be Careful What You Text

A story about a man who dumped his fiancé via text message found its way into my inbox recently. While arguably poor form to end a serious relationship via text message, that wasn’t what caught my attention. It was the fact that the content of the text message ended up costing the man $53,000.00. In ending the relationship, the gentlemen promised to reimburse his fiancé for money she spent on the wedding preparations and added the line “plus you get a $50,000.00 parting ring”. A few weeks later the gentlemen attempted to retrieve the ring from his now former fiancé, claiming by law, she had to return the ring. However, a New York judge ruled differently. While engagement rings have been found to be conditional gifts that do not vest until marriage, the text message stating the ring was a parting gift changed the nature of the ring and it was no longer seen as a conditional gift.  The court ruled that the jilted woman was the rightful owner of the $53,000.00 ring.

Pennsylvania courts have also held that engagement rings are conditional gifts that do not vest until marriage occurs. Generally, that means if the engagement is broken, the ring goes back to the person who purchased it, regardless of fault. Unless of course the nature of the gift is changed, say by a text message. Be careful what you text, you don’t know what it could cost you.

Lindsay Schoeneberger is an attorney at Russell, Krafft and Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Estate Planning and Domestic Relations 

The Impact of Adoption

The other night I found myself sitting with my children watching America’s Got Talent. While America’s Got Talent is clearly a popular show, it is not one which I have seen before. That being said, my children and I became engrossed in the wonder of this all-American talent show where some acts were silly, others dangerous and some downright amazing. What struck me most of all however, was a young man named Jacob, who at just eighteen years old sang a moving rendition of John Mayer’s “Waiting”. It wasn’t so much that he was young, handsome and extremely talented, but it was his back story that touched my heart. You see, Jacob shared with the world that he had been the child of neglectful parents who are addicted to drugs and ultimately, their inability to care for him and his sister caused them to be placed in foster care.  At the time, Jacob was only five years old and spent several years bouncing from foster home to foster home. He described this experience as being like someone’s luggage, never knowing where you would end up. Clearly what he wanted most was a family that loved him and the stability of knowing where he would end up.

Fortunately for Jacob, he and his sister were adopted, and before he took the stage that night his adoptive mother shared words of encouragement and gave him a big hug. Jacob walked confidently out on to the stage and delivered an extraordinary performance. But again, even then, it was not the performance that struck me, but instead, the words of his mother after hearing Jacob’s backstory as portrayed by NBC.  She said without hesitation, “That is my son, and I am his mother.” Those simple but impactful words are the epitome of what adoption means to me and my law practice. The thousands of children that are adopted every day are impacted by the generosity and compassion of the families that add them to their home. That addition is not done for fame or fortune, it is not to gloat or to be perceived as a good person.  Instead, it is a simple, yet profound relationship just as Jacob’s mom suggested, “That is my son, and I am his mother”.

For families who open their homes and their hearts to children awaiting adoption, the impact of the decision to include a child as part of a family will change that child’s life forever. Jacob is a perfect example of that. At five years old he was trapped in a neglectful home and then removed to the instability and uncertainty of the foster care system. Jacob’s parents’ decision to adopt him, changed his life forever and allowed him to be a strong confident eighteen year old, standing on a stage in New York City, singing a song for hundreds of thousands of people in that theater and watching across the country.  How could anyone ever question the impact of adoption?

Holly Filius is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Adoption

You've Got Your Marriage License - Is That All You Need?

In 1996, I was a legislative research analyst in the Pennsylvania House of Representatives when the General Assembly enacted the statute specifically prohibiting the recognition of same sex marriages.  That statute provides as follows: 

It is hereby declared to the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

I recall listening to the floor debate in my office on the day of the Bill’s final passage and discussing it with other staff members.  While I was not involved with the drafting or passage of the Bill, I very clearly recall the urgency among the elected members of the House to move the Bill quickly because there was a great fear that some judge in Hawaii could force the Commonwealth of Pennsylvania to recognize a marriage between same sex couples. And so it passed, unremarkably, and moved to the Senate for final approval before enactment.

But Tuesday was a remarkable day for same sex couples in Pennsylvania who have been governed by that 1996 law.  Pursuant to Whitewood v. Wolf, 2014 WL 2058105 (U.S.M.D., May 20, 2014), the statute has been declared unconstitutional and same sex couples can now marry in Pennsylvania.  There are headlines in every newspaper and on-line media outlets and videos on the internet and the news.  There was a line at the Dauphin County courthouse yesterday morning when it opened of same sex couples wanting to apply for licenses. In Lancaster County, the first same sex couple to apply arrived at the Register of Wills office around 8:45 a.m.  It’s historical, no question, and it is now the law of the Commonwealth.  

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Can There Really be Such a Thing as "Conscious Uncoupling"

I read in a Fox News article a few weeks ago that Gwyneth Paltrow and her husband, Chris Martin, attended a party together, even though they have publicly announced their separation, which they have referred to as “conscious uncoupling”.  When the pair announced that they were “consciously uncoupling”, there seemed to be a lot of public questions (and skepticism) about what this is, and, if it exists, whether it can be accomplished successfully.  I, too, raised an eyebrow, wondering why it is headline news and why any of us care what happens between them in the privacy of their own relationship. In part, the story generated so much interest because of the use of the term uncoupling in place of divorce.

The term and idea of the “uncoupling” of married people is one that I have heard used in collaborative divorce cases.  In my experience, many people are drawn to collaborative law because they desire to end their marriage and resolve their economic issues in a process and a timeframe that they control together. Generally, they value what's left of their relationship with their spouse, namely the joint parenting of children and often, that reason is their primary factor in selecting collaboratively-trained counsel to assist with the divorce. Collaboratively-trained professionals, particularly coaches and therapists, refer to the term “uncoupling”, as a way for both spouses to envision themselves moving forward with their lives, independent of each other.  Because the collaborative process is based on the parties' development of their individual needs, concerns and interests, it necessarily requires them to think about their future and how their financial settlement and parenting plans will be structured to enable them to achieve that.

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What Rights Do Grandparents Have Under The Pennsylvania Custody Act?

Most people know that grandparents have some custody rights under Pennsylvania law. What they may not know is what exactly those rights are. What happens when a grandchild is taken out of the grandparents' custody when the parents have already agreed that the child could live with them?  Can grandparents have primary physical custody when there is still one parent in the picture? The Pennsylvania Custody Act answers these questions and gives grandparents rights to intervene in a custody action in certain circumstances.

According to the Pennsylvania custody law, grandparents have standing (the right to legally intervene) in a custody action to ask for periods of partial physical custody or supervised physical custody of their grandchildren if certain criteria are met. These criteria include the death of a parent, separation/divorce proceedings between the parents or a situation where a child has already been living with a grandparent or great-grandparent for over a year. Even if the criteria are met, grandparents should consult a family law attorney when they are seeking custody so that they are aware of their rights and the steps they need to take.

Partial or Supervised Physical Custody

One situation where grandparents are allowed to intervene for partial custody or periods of supervised custody is when a parent of a child is deceased. Grandparents may also seek partial custody when the parents of the children are separated or divorced. If either parent has filed for divorce or if the parents have been separated for at least six months, grandparents have legal standing to seek custody.

Sometimes, grandparents already have had physical custody of a child for a period of time, and suddenly a parent decides to remove the child from their home. There are rights for grandparents in these situations too, as long as the child has been living with the grandparents for a period of at least one year. If that is the case, the grandparents must file an action for custody within six months of when the child was removed from their home.

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Teenagers and Custody Issues

Custody can be a tricky issue no matter what the child’s age. When you add a teenager into the mix, it can be even more difficult to navigate the correct procedures for custodial parents and non-custodial parents to follow. Teens often have strong opinions on which parent they prefer to live with, opinions that can change rather often or unexpectedly. The issue becomes even more clouded when a teen is close to age eighteen. Parents often wonder to what extent they should treat their teens like adults in making major decisions such as which parent to live with.

In my family law practice, I have encountered situations where a non-custodial parent wants to follow the wishes of a teenager and allow him or her to move into their home.  For example, the question may be, “Can my sixteen-year-old daughter just move in with me? Even though the Custody Order gives my ex primary physical custody, isn’t she old enough to decide where she wants to live?”

I always caution parents in this situation. Do not allow your teenager to just move in with you on a whim or because he or she is upset with the other parent. The existing Custody Order is an enforceable legal document and non-compliance could result in contempt proceedings being brought against you. Regardless of the fact that the teen could be only months away from the age of majority, a Custody Order is a directive from the Court, and both parents are obligated to comply with it.

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How Far is Too Far? A Must-Read for Custodial Parents Seeking to Move

As family law attorneys, we often encounter the issue of relocation in custody situations. I previously wrote about the top custody myths in Lancaster County and addressed a common myth that parents have in custody situations -- "I can move wherever I want and take my children with me." This assumption, as I point out and as Holly Filius expands on in her blog post about changes to the Pennsylvania Custody Act, can be hazardous for parents who do not understand or know about the notice requirements of the law. These requirements are discussed frequently in family law sites and blogs, but what many clients wonder is how far a move has to be in order to trigger the notice requirements required by law. Is it okay to move to the next neighborhood? The other side of town? What about 30 miles away?

The Custody Act defines relocation as any move that significantly impairs the non-custodial parent's ability to exercise custodial rights to the children. Any move that falls under this definition requires the custodial parent (the parent who has physical custody of the child or children the majority of the time) to follow the notice procedures of the Act. This begs the question, how far can a move be before it "significantly impairs" the other parent? Here in Lancaster County, a move is usually considered relocation if the custodial parent proposes to move with the children to a different school district. Changing districts could make it difficult for the other parent to complete the necessary custodial exchanges and take the children to any events or appointments they have while under their care. Although there are some Pennsylvania school districts that are geographically small, rural ones can be spaced far apart so that even moving to the "next district over" could create a significant distance to travel. 

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Holiday Custody Schedules Don't Have to Cause Holiday Stress

I once had a client call me on Thanksgiving Day because she had a custody dispute with her ex-husband about who was to pick up their child at 4 p.m. The police were called and actually intervened, their child was distraught and the entire holiday was ruined for everyone, extended families included.

Without fail, every year after the holiday break I receive calls from clients with concerns about problems that arose during a custody exchange or the late arrival of a parent. Folks, juggling holiday activities with children is difficult even for intact families. It only gets more difficult when parents are separated and have their own individual plans for celebrating. My advice for making sure that you and your kids get through the holidays without a lot of aggravation and stress about custody issues is to plan ahead. Know what the holiday schedule will be well in advance of the holidays. If that means hashing it out with your ex weeks or months in advance, then do it.  If you're having difficulty reaching an agreement about a schedule, transportation or exchange times, seek the input of an attorney to clarify what your rights and obligations may be.

Embracing the holiday and focusing on making this a joyous time for your children can help you to successfully make it through the holiday season . 
 
Julie Miller is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Dickinson School of Law and practices in a variety of areas including Family Law.

Child Custody and Relocation in Pennsylvania

In a recent article about the top 10 custody myths in Lancaster County, Julie Miller touched upon one of the most popular myths - that a parent can relocate without the other parent's permission. In reality, the relocation procedure that was in place for many years in Pennsylvania required any individual who wanted to relocate to meet the legal standard quantified in the case of Gruber v. Gruber. In 2011, the Gruber requirements were superseded by a new statutory provision, 23 Pa. C.S.A. § 5337, which required that no relocation could occur unless every individual who has custody rights to a child consents to the proposed relocation or the court approves the proposed relocation. As a parent, you must take all the proper steps before you may relocate, or conversely, in order to stop a relocation if you disapprove of it.

What do I have to do to relocate?

If you are the moving parent, the statute requires you to give notice to every individual who has custody rights by certified mail, return receipt requested, within 60 days before the proposed moving date. If you do not reasonably know of the relocation in time to comply with the 60-day notice requirement and it is not possible to delay the date, you must provide notice to all parties no later than the tenth day after the date that you know about the relocation. The second scenario would apply in situations such as a short-notice job relocation or an emergency relocation with limited date flexibility.

Whether providing the 60 days' notice or a shorter period of time as allowed by the statute, you must provide the following information to any individual who has custody rights to the child:

1. The address of your intended new residence, including the mailing address if it is different than the physical address;

2. The names and ages of the individuals who will be living with you;

3. The home telephone number of your new residence;

4. The name of the new school district and specific school your child will be attending;

5. The date of the proposed relocation;

6. The reasons for the proposed relocation; and

7. A revised custody schedule.

Counter-affidavit regarding relocation

In addition to the above information, a counter-affidavit must be provided with the notice allowing the other party to indicate their position with regard to your relocation. The counter-affidavit must include a warning that if the other party does not file an objection with the court objecting to the relocation within 30 days of receiving notice of the proposed relocation, the non-relocating party cannot object to the relocation.

If no objection is made to a relocation, you must file an affidavit stating that you have provided notice to every individual entitled to notice of the relocation, that the time to file an objection to the proposed relocation has passed, and that no one entitled to receive notice of the relocation has filed an objection to the relocation. You must also file proof that proper notice of the relocation was given and then file a petition to confirm the relocation and modify any existing custody order, along with a proposed order containing the information delineated by the relocation statute. The court then has the ability to modify the order based on the non-relocating party's lack of objection to the relocation.
 

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Top 10 Custody Myths in Lancaster County

When it comes to child custody, maintaining an accurate understanding of the law can be difficult, as it often varies among the counties in Pennsylvania. Here are the top 10 custody myths I have encountered in my practice in Lancaster County:

1. My kids will get to choose which parent they want to live with when they are 12 years old.

I have had countless clients tell me that they assume their children can decide where they want to live when they are 12 years old. This is not an accurate statement of the law but seems to be a common misconception among the general public. The reality is that as children mature and reach their teenage years, their wishes are more likely to be considered by the court, as the law requires courts to consider "the well-reasoned preference of the child, based on the child's maturity and judgment." However, courts must consider all relevant factors, most importantly what is in the best interest of the child. Simply because a child expresses a desire to live with one parent does not mean that the court will ultimately conclude that the child's best interest will be served by living with that parent. Other factors that the court must consider include which party is more likely to encourage frequent contact with the other parent, the need for continuity and stability, and whether there are other siblings, among others. There is simply no rule that a child, on his or her 12th birthday, gets to make the decision about which parent to live with.

2. I can move wherever I want and take my children with me.

The Pennsylvania Custody Statute was amended last year to include very specific notice requirements in the event a custodial parent seeks to relocate with the children. Any parent proposing to move to a location "which significantly impairs the ability of a non-relocating party to exercise custodial rights" must provide advance written notice of the proposed relocation to the non-custodial parent. In the event the non-custodial parent objects, the court must hold a Gruber hearing in which the court must consider the following three factors:

  • What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children?
  • Is the purpose of the move to interfere with the relationship between the non-custodial parent and the child?
  • Is there a realistic alternative custody schedule so the non-custodial parent can continue a relationship with the children?

It is important for parents to understand their legal obligations regarding relocation because if they move without providing the required notice, they may face litigation and other complications which can be difficult on children.

3. The Court never awards fathers primary physical custody of their children.

Although there was a period of time where our Courts were perceived to routinely grant mothers primary physical custody, there has been a trend to allow more shared custody arrangements between parents. This is especially true when the parents live in relative close proximity to each other, reside in the same school district, and are able to co-parent and communicate. There are also cases in which fathers have been granted primary physical custody of their children. Therefore, the assumption that mothers always have primary physical custody of their children is not accurate. Custody cases are determined based on the best interests of the children, and require the Court to consider work schedules, educational issues and whether one parent has acted as the primary caretaker. Each case is unique and there's no hard and fast rule about mothers being awarded primary physical custody.

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What Happens to the Money in a Joint Account After One Party Dies?

Joint accounts are often meant to make the financial lives of the parties involved easier, such as in the case of marriage or in a caretaker situation. But what happens when one party dies? Does the money automatically belong to the remaining party? For example, let's say that a man dies and leaves $20,000 to his grandson in his will. Prior to the man's death, he added his son to the account to help him pay his bills. All of the cash he had was in that account. Who is legally entitled to the money - the son, who was on the account, or the beneficiary who received the gift from his will?

A few years ago my colleague Jon Gruber wrote an article about risks with joint accounts and the law that was enacted in Pennsylvania called the Multiple Parties Account Act (MPAA). This act sets forth the rights of parties to a joint account and applies when an individual dies owning an account jointly with another person.

Under the MPAA, the law presumes that a joint account owner intends his co-owner to take the money in the joint account upon his death, and this presumption is only overcome by clear and convincing evidence to the contrary.

According to the MPAA definition, an account is "a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, saving account, certificate of deposit, share account and other like arrangements." A joint account is "an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorship." Therefore, unless the grandson initiates a lawsuit and comes up with clear and convincing evidence his grandfather did not intend his father to receive the money in the account upon his death, dad gets the money.

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What Should I Do Before I Separate From My Spouse?

During my years of practice as a family law attorney, I have met with hundreds of clients who asked me the question, What do I do before I separate from my spouse? In the alternative, I have also been asked, What should I have done? For those clients who have asked me after the fact, close to 50% of them would have fared much better had they come to see me prior to separating from their spouse.

See an attorney first.  My first recommendation to someone who is considering separating from their spouse would be to see an attorney right away. There are many misconceptions about what happens in a divorce matter, and everyone seems to have a friend, relative or co-worker who has had some terrible experience, which most likely was innocently exaggerated for effect. That being said, in order to avoid the fear and speculation of inaccurate, anecdotal advice, it is always best to see an attorney first and learn your true rights and responsibilities in a divorce situation. 

In addition to simply talking to a lawyer before you separate from your spouse, you can also do the following things to save significant attorneys' fees, delay in your divorce proceedings and quite frankly, some emotional distress. 

Make copies of all financial records, including, but not limited to:

  • five years of all personal and business tax returns, supporting schedules and documentation
  • current pay stubs
  • car titles and loan payoffs
  • mortgage statements for all real estate and copies of appraisals if they are less than three years old and settlement sheets for all real estate purchases and refinances
  • three months of bank statements for all checking, savings, money markets, mutual funds, retirement and investment accounts
  • life insurance premium notices and cash value statements
  • certificates of deposit, stocks and bonds, safe deposit entry logs and loan documentation
  • credit card statements for three months and any other financial documentation relating to any asset or debt

Obtaining copies of this information at the outset can save you significant attorneys' fees by possibly avoiding formal discovery and also identifying the assets and debts contained within your marital estate preliminarily.

Take an inventory of your personal property.  You do not need to inventory every fork, spoon or towel, but try to account for all items of furniture and furnishings, as well as household items of value. A written list is helpful, although pictures and/or videotape is better, particularly if they are date-stamped to identify what items of personalty (personal property) existed at a particular time.

Understand your debt position.  You should know what obligations exist at or around separation, including the type of debt, the account number, the contact information for the lender, and most importantly, how the debt is titled. Just because an account is in your spouse's name alone does not mean that you are not obligated to pay for it. Many credit cards that are individually titled include a spouse as an authorized user, which for many creditors is the same as being the account holder. It is important to know how an account is titled so that it may be dealt with post-separation with regard to limiting your liability.

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Can I Claim my Child as a Dependent?

One of the most frequent questions I get during tax season is: who gets to claim the child/children on their taxes when parents are separated, divorced, or have never been married? It also happens to be an area where I see many people make mistakes that cost them on their tax return and in their bank account. The deduction for a child for the tax year 2011 was $3,700, and the IRS has a child tax credit worth up to $1,000 per child for qualifying taxpayers. These two deductions or credits, in addition to other child related expenses or deductions, can make a significant difference in your tax liability.  Therefore, when parents are separated or unmarried it is important to understand your rights when it comes to claiming a child as a dependent.

Generally speaking, the parent who is considered the custodial parent or primary custodian is entitled to claim the child as a dependent for tax purposes. The IRS considers the custodial parent to be the parent who has the greater amount of time with the child during the year. In many cases, it’s clear which parent has the majority of the time. However, many parents have a schedule that intends for parents to share time equally with the child. In these cases, there are specific IRS rules to determine how periods of time with each parent are calculated and who is the custodial parent. In the absence of an agreement to do otherwise, these rules are used to determine who is able to claim the child as a dependent on their tax return.

Often, parents will discuss this issue and reach an agreement on who will claim a child as a dependent. When there are multiple children to the same parents, they may "split" the children, and they each claim one or more. Other parents agree to alternate years so that every other year, each parent gets to take the deduction. Either of these situations are fine, provided that you follow the rules the IRS has set out for a non-custodial parent claiming a child. Those rules provide:

  1. The parents must be divorced or legally separated under a decree of divorce or separate maintenance; separated under a written separation agreement, or lived apart at all times during the last 6 months of the year, whether or not they are or were married;
  2. The child received over half of his or her support for the year from the parents;
  3. The child is in the custody of one or both parents for more than half of the year; and
  4. The custodial parent signs a written declaration that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return.
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Is Collaborative Divorce Right for Me?

It's that day again, one of the most difficult holidays for those facing or going through the process of a divorce: Valentine's Day.

A recent study has revealed a 40% increase in divorce filings around Valentine's Day in the past two years. For those experiencing the season of upheaval of divorce, the holiday has nothing to do with roses and candy.   Most in this situation have gone beyond asking the question "Is my partner right for me?" and are now asking, "What am I going to do next?" Luckily, for some there is another question to be asked, one that can help alleviate some of the stress of the usual divorce process: is collaborative divorce the right choice for me?

Many divorce clients have described feeling trapped in their situations, as if they have lost control. Court dates and conflict become the new norm, and it seems that their lives and those of their children are at the mercy of the system.

The collaborative process can make some of the toughest parts of divorce a little easier. (See Collaborative Divorce: A Different Way to Divorce). The factors below will help determine if you and your spouse are good candidates for divorce using the collaborative model. If you find yourselves in any one or more of the following categories, you may want to consider moving forward collaboratively:

  • You wish to protect your children and your family from the harmful effects of a high-conflict dispute.
  • You and your spouse will be co-parenting together and want to establish the best co-parenting relationship possible for the future.
  • You value privacy in your personal affairs and do not want the details of your family restructuring to be available on the public court docket.
  • You and your spouse have a circle of friends and family in common that you both want to remain connected to.
  • You value control and autonomous decision-making and do not want to hand over decisions about restructuring your financial or child custody arrangements to a judge. 
  • You understand that conflict resolution involves achieving not only your goals, but finding a way to achieve the reasonable goals of the other person.
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Women in Business: Attorneys Christina Hausner, Holly Filius and Julie Miller

Russell, Krafft and Gruber, LLP is excited to be featured in the Women in Business section of the November/December 2011 issue of Susquehanna Style. The feature highlights just some of the great qualities and community work of Christina Hausner, Holly Filius and Julie Miller. If you are interested in viewing the feature, you can purchase a copy at newsstands or view the publication online (page 91-92). Susquehanna Style is a bi-monthly regional lifestyle magazine for the residents of south central Pennsylvania.

In conjunction with the Women in Business feature, Chris, Holly and Julie will be attending the Celebrate Women event held on November 30, 2011, at the Accomac Inn. If you are interested in attending, you can purchase tickets and find out more information on Susquehanna Style's website. The $10 admission donation will benefit the Power Packs Project which is a school hunger initiative.

How a Will Can Help Determine Who Will Care For Your Child if you Die?

Making a will is something that occasionally crosses your mind, it's one of those things you think maybe you need but don't have the time or desire to make it a top priority. In addition, there are many things that can deter you from making a will such as lack of money or property, the unlikelihood that something catastrophic will happen to you or just simply procrastination. However, if you are a parent, one of the most important reasons you should have a will is to appoint a person to care for your child upon your death and the death of the other parent. The care of your child upon an unfortunate event such as death can happen to anyone regardless of the size of your estate. As a parent myself, I believe that one of the most important parts of a will is the section that appoints a guardian for anyone with minor children.

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Holly Filius Receives Letter of Commendation from Lancaster County Commissioners

On April 27, 2011, Holly Filius received a Letter of Commendation from the Lancaster County Commissioners in recognition of the Central Penn Business Journal's Women of Influence Lifetime Achievement Award. She will formally receive her award on May 16 at the Women of Influence Luncheon. Holly was presented with the Letter of Commendation during the Lancaster County Commissioners' Meeting. The letter acknowledged Holly's commitment to her clients and community,

"With respect and appreciation, the Lancaster County Board of Commissioners would like to congratulate you on being named the 2011 Central Penn Business Journal's Women of Influence Lifetime Achievement Award recipient. We are honored to recognize your impressive career, leadership skills and accomplishments in the business community. You have committed your life to making Lancaster County and all of Central Pennsylvania a great place to work and live." 

Holly Filius named the Recipient of the Women of Influence Lifetime Achievement Award

Holly S. Filius, Managing Partner, of Russell, Krafft & Gruber, LLP in Lancaster, PA has recently been named the recipient of the Lifetime Achievement Award in the Central Penn Business Journal’s Women of Influence Awards program.

Filius received her B.A. in Political Science from Villanova University and her J.D. from Widener University School of Law. She concentrates her law practice in Family Law, Adoption and Estate Planning. Filius joined the firm as an associate in 1998 and attributes her early success to hard work, a commitment to client service and integrity, which has earned her a solid reputation among her clients and the legal community. This success led to a partnership offer after only five years in private practice. Six years later in 2009, she was elected Managing Partner of the firm. Filius' commitment to excellence and her leadership skills made her an ideal candidate for the position.

Filius has earned a reputation as one of the best Family Law attorneys in Lancaster. Over the years she has acted as a mentor to all of the young lawyers at Russell, Krafft & Gruber, LLP. In addition to mentoring lawyers in her own firm Filius often makes time for law clerks and even lawyers in other firms who recognize her expertise and appreciate her professional and approachable demeanor.

Currently, Filius serves as President of the Board of Directors of the S. June Smith Center Foundation. She is active in numerous community and professional groups, has served on the Board of Directors of The Pennsylvania State Foster Parent Association and as a member of the Women in Business Committee of the Lancaster County Chamber of Commerce and Industry.

Filius' career achievements are ones that stand out among both the men and women in her field. Under her leadership the firm has been able to successfully balance growth and caution in the midst of a struggling economy and position the firm for the future. As a long time resident of Lancaster County, she feels a commitment to her community and strives to make Lancaster county a better place to live and work.

The Women of Influence awards were created in 2010 to recognize midstate women leaders who are influential in their companies, industries and communities. In total, 28 local women business leaders will receive awards recognizing their outstanding leadership, integrity and accomplishments in the midstate’s business community at the Central Penn Business Journal’sWomen of Influence event on Monday, May 16, 2011 at the Hilton Harrisburg. The award recipients will also be profiled in a special supplement to the May 20, 2011, issue of the Central Penn Business Journal. This list will also appear in the Business Journal’s 2012 Book of Lists publication.

 

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PA State and Local Tax Also Due on April 18 in 2011

A few weeks ago I shared the good news that the IRS extended the tax deadline to April 18 this year.  If you’re like me, you probably thought, “That’s nice, but two days doesn’t make that much difference so I’ll just have my taxes done by April 15.”  Now that the deadline is fast approaching I’ve been asked by a number of friends and clients if the new deadline also applies to state and local taxes.  The PA Department of Revenue announced some time ago it had also extended the deadline for PA personal income tax returns.  However,  if you check out the homepage on the Lancaster County Tax Collection Bureau’s website you will see they have extended hours on Friday, April 15, but return to normal working hours on Monday, April 18.  They did, however, confirm that taxpayers have until Monday to file individual returns. In addition, taxpayers can now file their Lancaster County returns online.

Despite some information online to the contrary, the instructions for IRS Form 1040-ES lists April 18 as the due date for federal estimated payments as well. Filers who have applied for an extension will also receive a reprieve from the normal October 15 deadline which falls on a Saturday in 2011. Final returns are due on Monday, October 17.

Here are some parting thoughts as you take on the dreaded task of preparing your 2010 tax return.  It was Benjamin Franklin who said, “The only things certain in life are death and taxes.”  I recently read an anonymous quote in response to Franklin’s famous words, “Death and taxes may be certain, but we don't have to die every year."

**When this article was initially posted I did not include information regarding PA State Estimated Tax payments.  According to the PA Department of Revenue website Pennsylvania 2011 Personal Income Tax Estimated Payments are due on April 15.  Please note this deadline has not been extended until April 18.

Do-it-Yourself Legal

Do-it-yourself projects, like remodeling your bathroom or building a deck, can save money and provide a sense of accomplishment by doing something on your own that you would ordinarily hire another person to do. With any do-it-yourself project there are risks involved, such as increased cost if you have to hire a professional in the end or if your inexperience causes other damage. 

The internet has allowed individuals to perform some legal functions on their own. Many government websites, for example, offer forms with detailed instructions that can be very helpful for people seeking to help themselves with certain issues. There are also websites that offer forms and additional services for a fee. These websites are required to stop short of offering legal advice because they are not law firms, which is made very clear on LegalZoom's website: "LegalZoom is not a law firm, and the employees of LegalZoom are not acting as your attorney….if you need legal advice for your specific problem, or if your specific problem is too complex to be addressed by our tools, you should consult a licensed attorney in your area." Because these sites are not law firms, they are also not subject to the rules that govern lawyers. This is why they are able to do things lawyers can't do, such as use celebrity endorsements. 

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Changes to Pennsylvania Custody Law

Some significant changes and additions to the custody statute in Pennsylvania went into effect recently. The majority of the changes or additions to the custody statute are an attempt to take the factors, standards and practices which have been carved out over the years through Court cases and appellate decisions and consolidate them within the statute. While these may not make a significant substantive change to the custody law, they still have the potential to affect many custody cases filed after the law goes into effect this week. 

One of the most significant additions to the statute is the inclusion of sixteen specific factors which, if applicable, the Court must consider. The overall goal is still to determine what is in the best interest of the child but these specific factors that are now set out in the statute provide some guidance and uniformity for judges, attorneys and parents to specifically consider in evaluating cases and concerns in custody matters. A few examples of these factors are:

  • Which party will encourage and permit continuing contact with the other party
  • Parental duties performed by the parties on behalf of the child
  • Sibling relationships
  • The well-reasoned preference of the child based on the child's age and maturity
  • Proximity of residences of the parties
  • Attempt of one party to turn the child against the other party
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Military Deployments and their Effect on Child Custody

The news each day seems to be filled with headlines about the wars in Iraq and Afghanistan. With the withdrawal of U.S. combat forces in Iraq and the return of many of them to the United States, a recent Amendment to the Pennsylvania Divorce Code is likely to be put into use more frequently. 

At the end of 2008, the Divorce Code was amended to prevent the Court from changing a custody order where a parent is a servicemember and has been deployed, except on a temporary basis. The Court may make a temporary change to the order if it would serve the best interests of the child to do so while the servicemember is deployed. This part of the new law is not that different from all other custody procedures, which look to the best interests of the child as a guide. 

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Making the most of your Initial Consultation with a Divorce Lawyer

Meeting with a lawyer for the first time about a divorce can be overwhelming for a number of reasons. Obviously, clients most likely are experiencing emotional trauma over the loss of their relationship and uncertainty about their future. Navigating the legal intricacies of the divorce process adds yet another element of uncertainty to the situation. For a client who is unfamiliar with the legal process, learning about options and discussing ways in which to proceed during the most stressful  time of their life can be confusing. However, it is a critical meeting — one at which the lawyer can assess the client's situation and priorities, and one at which the client can become comfortable with the lawyer.

Clients often have no idea what to expect from the initial consultation. At the very least, I believe that the client should leave my office that day knowing that he or she has choices, that there is no "one size fits all" method for divorcing, and that I have some understanding of the issues their case will present. In developing an understanding of the issues, it is necessary to have information about the nature of the parties’ marital estate, including their assets and liabilities. It is particularly helpful if clients bring along the following documents when they meet with me for the first time to discuss their divorce:

  • Copies of their most recent Federal Income Tax Return, including W-2s, 1099s and schedules.
  • Copies of recent paystubs.
  • A copy of all recent mortgage and/or home equity loan statements, for all properties owned; if a home is in foreclosure, a copy of the most recent Act 91 Notice.
  • Recent statements for all investment and retirement accounts, including 401(k)s, IRAs and pensions.
  • Recent bank account statements.
  • Annual income statements from the Social Security Administration.
  • Information regarding the value of any business interests.
  • Documentation of loan balances, credit card debts or outstanding medical bills 
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2010 Amendments and Updates to PA Support Calculations and Procedures

The Pennsylvania Supreme Court has recently issued the updates to the Pennsylvania Support Rules and Guidelines, which go into effect on May 12, 2010. The Pennsylvania Support Rules and Guidelines are required to be updated every four years and many times involve only an update to the child support schedule with little or no substantive changes to the rules. This year, however, there are a number of significant changes and in some instances, may have a major effect on the calculation of child or spousal support. Below are some of the more significant changes to the 2010 Amendments to the Pennsylvania Support Guidelines:

1.      The first and potentially most significant change is in the application of the support guidelines to circumstances where the monthly household income is in excess of $20,000. Previously, the child support schedule ended at a combined adjusted net income for the parties at $20,000. The new schedule includes a combined adjusted net income of up to $30,000. Therefore, the basic child support schedule can be used where the parties' income is up to or equal to $30,000 per month. This should provide some much needed uniformity in calculating support for parties who have a substantial monthly income up to $30,000.

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Child Custody and Relocation

One of the most hotly-contested issues facing Judges in custody cases is whether to allow a custodial parent to relocate to another state with the children. This has become quite common, particularly as people have made and developed relationships through the internet. Relocation cases are difficult for all parties involved: the non-custodial parent is shocked and horrified at the prospect of losing regular contact with his or her children and the prospect of not being able to move to a perceived better opportunity is equally difficult for the custodial parent. Often, these cases are not able to be resolved through the custody conciliation process and they end up at a hearing before a Judge.

My practice is to remind clients involved in all custody litigation, including relocation cases, that the Judge deciding the case is a stranger making decisions about what is in the best interest of your family. He or she has no prior knowledge of your family, you and your ex-partner's history, your children's behaviors, likes and dislikes. Depending on your case, it can be helpful or can add to your burden.

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2009 Home Buyer Credit Extension and Related Divorce Issues

Back in July I wrote about the first-time homebuyer tax credit that applies to home sales occurring before December 1, 2009. However, there is some great news for prospective homeowners unable to squeeze in a purchase in that timeframe: Reuters is reporting that the credit may be extended for another six months. With bipartisan support in Congress and recent hints that President Obama will back such an extension, the amendment is likely to pass.

Also, we have received queries from readers regarding the effects of divorce on the credit. A common occurrence in divorces is that an ex-spouse's name continues to remain on a deed while he or she no longer lives in the residence. As long as the ex-spouse has not lived in the house at all over the past three years, and as long as the divorce was finalized three or more years ago, the ex-spouse will qualify as a first-time homebuyer because the house is not his or her primary residence. Of course, this assumes that the ex-spouse does not reside in other real property that he or she owns.

 
The situation is different when a married couple is separated and the divorce has not been finalized. Under the rules governing the credit, ownership of a primary residence by one spouse imputes ownership onto the other spouse even if they are legally separated. In such a case, it does not matter if the other spouse's name is on the deed or not both spouses will be disqualified as first-time homebuyers.

Domestic Issues for Business Owners, Part 3: Support

The conclusion to my three part series on domestic issues and business owners will focus on support. Previously in parts one and two I discussed marital property, separation, divorce and equitable distribution

Support is divided into three general categories: child support, spousal support/alimony pendente lite (APL) and alimony.

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Domestic Issues for Business Owners, Part 2: Separation, Divorce and Equitable Distribution

In Part One of Domestic Issues for Business Owners, I discussed the definition and value of marital property. In this post I will be highlighting how separation, divorce and equitable distribution can affect your business.

Separation

Separation is an important aspect in valuation of marital property, including business interests, because the date of separation identifies the ending date for assets to be included in the marital estate.

Divorce

There are two types of divorce, fault and no-fault. Even if you have established grounds for divorce under the fault or no-fault provisions of the Divorce Code, a divorce will not be granted until all economic issues are resolved.

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Domestic Issues for Business Owners, Part 1: Marital Property

Starting and running a small business is tough enough. The domestic issue in the forefront of your mind is how the stress of running a business will affect the relationship of your marriage. However, you might want to consider how your marriage affects the assets of your business and understand how a divorce could affect the future of your business.

In this three part post, I highlight some of the issues that arise in a divorce which includes a business owned by one or both parties. Because of the complex nature of this type of divorce, it is difficult to cover all of the issues involved. However, these posts will help to provide some understanding of the basic considerations.

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Managing Your Support Order in the Face of Decreased Earnings

No one is immune from the realties of today’s economy. Since the economic downturn I have had a number of inquiries from clients regarding their Child Support Order if they are laid off or are receiving support payments from a payor who has been laid off.

First, if you pay support and you experience a decrease in your income due to a layoff, a decrease in the number of hours you are able to work, or a reduction in your salary and/or bonuses, your monthly child support obligation could be reduced. Under the Pennsylvania Support Guidelines, a payor's support obligation is based on the parties' combined monthly net incomes. If your monthly net income decreases, it is likely that your support obligation will decrease as well, provided that the payee has not had a decrease in his/her income and child care expenses have not changed. It's advisable to contact an attorney to assist and advise you about recalculating your support obligation using your most recent paystubs, unemployment statements or 2008 W-2’s.

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Location, Location, Location

Location isn't just important when you're looking to buy a home, but also when you may be thinking about a divorce. The practice of one party filing a divorce in a far removed county from the residence of either party, which could be the result of low filing fees or the desire to place the divorce action in an inconvenient forum for the other party was dealt a lethal blow by a recent Pennsylvania Superior Court decision. The court established that venue, or the proper court in which you must file for divorce, must be established in court and "on the record" and it is the obligation of the trial court to do so. Venue can be established by residence, written agreement of both parties attached to the Complaint or otherwise made a part of the record, or through participation of both parties in the divorce action as required by other Pennsylvania Rules. Strict compliance is required to establish proper venue and a Divorce Decree issued not in compliance with the above rules can be vacated.

Divorces can not be filed in non-residence counties except with the consent of both parties. While there are occasions where parties may desire to have the divorce action conducted in a county not of their residence, perhaps for privacy reasons, the consent of both parties is required. It is advisable for both attorneys and parties filing for divorce to carefully consider whether it is appropriate to bring an action for divorce in a county where neither party resides. 

 

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Fault vs. No Fault Divorce

There are essentially two types of divorce in Pennsylvania, fault and no fault. A fault divorce requires one spouse to prove the other has done one of the following:

  • Deserted him or her without a reasonable cause for at least one year;
  • Committed adultery;
  • Entered into the marriage while he or she was married to another;
  • Endangered the life of the other spouse;
  • Sentenced to a term of imprisonment for two or more years; or
  • Committed indignities to the other spouse such that his or her life is intolerable and burdensome.

This type of divorce generally requires a hearing and the presentation of evidence by the “innocent” spouse in order to prove that one of these things has occurred.

By contrast, a no fault divorce can be granted in the following situations:

  • Where one spouse has been institutionalized for the 18 months before the divorce is sought and where there is no prospect of that spouse being released from the institution for an additional 18 months;
  • Where both Parties agree that the marriage is irretrievably broken and 90 days have passed since the start of the divorce action; or
  • Where one Party believes that the marriage is irretrievably broken and the parties have lived apart for at least 2 years.

A no fault divorce does not necessarily require either of the Parties to prove why the marriage has failed, only that the Parties have no real possibility of reconciliation. Most divorces in Pennsylvania are no fault divorces.

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Consider a Prenuptial Agreement to Protect Your Assets

Traditionally, you may have thought that a prenuptial agreement is common only among the rich and famous. However, a prenuptial agreement can be beneficial to any person considering marriage, regardless of the size of your personal wealth. Here are some reasons why you should consider having a prenuptial agreement in place prior to tying the knot.

1. You have children from a prior marriage whose financial interests you wish to protect.

Under Pennsylvania law, all property acquired during a marriage is marital property, including the increase in value of assets owned by a spouse prior to the marriage. Failure to protect non-marital assets could jeopardize your children's financial interest or future in the event of your death or divorce.

2. You have an inheritance in your name or expect to receive one during your marriage.

Your inheritance could become a marital asset subject to equitable distribution if you do not protect it in a prenuptial agreement.

3. You want to protect your family business or other assets you acquired prior to marriage.

All assets are subject to valuation during a divorce. Failure to protect your interest in the family business could lead to a complicated business valuation as part of an equitable distribution proceeding, and could open up a claim that it is a marital asset.

For similar reasons as stated above, you should consider a prenuptial agreement if any of the following are present in your case:

  • You are the beneficiary of a trust,
  • You earn significantly more than your partner,
  • You have more income or assets than your partner
  • Your partner has a tendency to "overspend" and has incurred significant premarital debt,
  • You want to decrease your financial exposure for your partner's financial liabilities.
If you are considering a prenuptial agreement, you should contact an attorney to discuss your options and which provisions are appropriate to include given your circumstances. Your fiance may decide to obtain his or her own attorney to review the agreement once it is prepared. If you seek legal representation, you should prepare a list of your assets and debts before the initial meeting.

It Isn't Over

The day finally arrives. Your attorney calls you or perhaps notifies you in writing that the Divorce Decree has been handed down. At long last (maybe six months, maybe a year, maybe even three or four years) it is finally over.

Not true! In the famous words of the "political philosopher" Yogi Berra, “it ain’t over till it’s over”. The Divorce Decree (assuming no appeal) in many cases is not the end, and many important matters may still require attention before that Postnuptial Agreement or that decision obtained after a Hearing with blood, sweat and tears - the result you worked so hard to achieve - materializes.

Like many other things, the devil is in the details and taking care of the details is still required. For example, the failure to remove the ex-spouse as a primary beneficiary of life insurance issued through an employer may negate the provisions of a Postnuptial Agreement which provides that the ex-spouse should have no interest in life insurance proceeds or other property of the spouse at death. 

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Lancaster County Domestic Relations Office Moves

There is an adage that "change does not necessarily assure progress but progress requires change". In the case of the Lancaster County Domestic Relations Office, the change in office location assures progress. The office recently moved from its previous location on East King Street to a new location on the second floor of 150 North Queen Street, Lancaster, the former Armstrong building. Parking on that block of Queen Street is prohibited so be sure to park in either the Prince Street or Duke Street garage.

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Is Divorce Really On The Rise?

I believe there is a general assumption that the divorce rate in Pennsylvania and around the country is continually rising. It seems we are constantly bombarded with the statement that "half of all marriages end in divorce." But is that really the case? A recent examination of the marriage and divorce statistics released by the Pennsylvania Department Health indicates otherwise. The marriage and divorce statistics for Pennsylvania go back as far as 1950. Some of the more interesting statistics indicate that the number of marriages in Pennsylvania peaked in 1973 at 101,076 and has been steadily decreasing. The most recent year for which data was available was 2006, when there were 71,511 marriages in Pennsylvania. Along with the decrease in the number of marriages, there has been a similar decrease in the number of divorces, with the number of divorces peaking in 1991 at 41,321 and has been continually decreasing to 34,894 in 2006. Divorce rates seem to be declining, although not nearly as quickly. The divorce rate is calculated as the number of divorces per 1,000 people. In 1990, the divorce rate in Pennsylvania was 3.3. Then in 1995, it declined to 3.1 and has remained steady through 2004 (last year statistics were available).The good news for Pennsylvania residents is that our divorce rate is well below the national rate of 3.6. 

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New Child Support Guidelines Proposed

Pursuant to federal law, the statewide support guidelines must be reviewed at least once every four (4) years. The support guidelines currently in place were adopted in September 2005 and became effective in January 2006. Recently, the Pennsylvania Supreme Court Domestic Relations Procedural Rules Committee published for comment new child support guidelines. The public comment period ends on October 31, 2008.

The most significant change to the guidelines relates to the maximum monthly net income included in the guidelines. Under the proposal, the support guidelines would apply to all cases in which the parties' combined monthly net income falls below $30,000. Under the current guidelines, cases in which the parties' combined monthly net incomes exceed $20,000 are governed by Melzer v. Witsberger. Raising the maximum income permitted under the guideline formula will provide consistency and predictability in child support cases for clients in higher income brackets.

The guidelines are in circulation for comment only and may be revised by the Domestic Relations Rules Committee prior to adoption. As the recommended guidelines make their way through the process, we will keep you updated about changes that may affect you.