Coming up on the end of another year

November 22, 2013 1 comment

As I write this post, Thanksgiving Day is less than a week away. Christmas and New Years Day will be upon us sooner than we would like. For many this is the time of the year when people get together with their families (family of birth, or family by choice) to enjoy the holidays.

For married couples who are separated, this can be a difficult time of year. When there are children involved, there can be squabbles about where the children should be for the holiday. Parents can’t afford to get what they want for their children because they do not have enough money. Children are often caught in the middle as they want to spend time with both parents. The better thing for parents to do is work out as many of these issues in advance and outside of the hearing of the children. Better to work out the pick up/drop off time and place for Thanksgiving a few days before the holiday as opposed to resolving it on Thanksgiving Day.

For divorcing parties who have no children or for whom there are no problems regarding custody, the end of the year can have an important impact for tax purposes. For federal income tax purposes, a person’s filing status is determined by that person’s marital status as of December 31st. If a divorce decree is not entered before 12/31, then the parties can either file jointly or “married filing separate.” For some individuals, they want to rush that divorce decree to make sure it is entered before the end of the year. For others, they prefer to delay the entry of the divorce decree until after December 31st. If you are not sure which way is better for you, you should consult your attorney and/or an accountant.

Learning Lessons

So one of the latest stories that has been circulating the internet concerns the pending divorce of Harold Hamm, the founder and CEO of Continental Resources, a prominent US oil company.   One such article, found here, lists 10 facts that you need to know about the divorce. Really, some of the fact are more about the company and some are about the people involved.  However, there are lessons to be learned by anyone who is involved in a divorce case – even those not worth billions of dollars.  Through this article I want to highlight some of those lessons.

1. Hamm is America’s 32nd Richest Man:  The lesson here is that, rich or poor, people get into relationship and sometimes those relationships end. Being worth millions or billions of dollars does not guarantee happiness.

2. The Couple Didn’t Sign a Prenup: This may be the one fact that can hurt Mr. Hamm and benefit Mrs. Hamm. People enter into prenuptial agreements for many reasons. One reason is to decide, before the parties marry, what will happen in the event of death or divorce.  For reasons probably known only to the parties, their attorneys, and their financial advisors, they decided not to have a prenuptial agreement.  You do not need to be worth millions to have a prenuptial agreement. If two people are planning to get married and the parties have assets they want to protect from distribution in the event of death or divorce,a prenuptial agreement is the best way to proceed.  Without one, however, the law of the state where one of the parties files for divorce (not where the parties married necessarily) will determine what assets are marital property subject to division by the court.

3. This Could be the Most Expensive Divorce Ever: This “fact” remains to be seen.  Mr. Hamm is reported to be worth over 11 billion dollars. That is not the size of the marital estate.  There may be assets that are not part of the marital estate. Under Pennsylvania law, those assets and debts that existed prior to marriage and those that came into being after separation are not marital property subject to equitable distribution.  Only the increase in value of pre-marital assets is subject to division as part of a divorce.  In Pennsylvania, this is true whether or not either party had a hand in the increase in value.  This is not true of every state. Gifts and inheritances to one of the parties would also be excluded from the marital estate and not subject to equitable distribution, except for the increase in value. It is not uncommon for parties, through pre-nuptial agreements, to exclude certain assets from the division as part of a divorce, including the increase in value.

4. Sue Ann Has Been Surveying Harold Since 2007:   The article referenced above indicates that the Daily Mail reported that Sue Ann Hamm has been spying on her husband since 2007 electronic surveillance.  There are several important considerations raised here. First, electronic surveillance is not automatically legal and/or admissible in Court.  Factors that influence this how the surveillance was obtained and whether or not Mr. Hamm had knowledge/had consented to it.   Under federal law, only 1 party to a telephone conversation has to consent for the conversation to be recorded. So, under federal law, whomever Mr. Hamm was talking with can consent to a call being recorded without Mr. Hamm’s knowledge.  Under Pennsylvania law, however, BOTH parties have to consent. Otherwise, the recording of the conversation is illegal.  Since this is a divorce action, state law will control.

5. The Couple Agreed on a ‘No-Fault’ Divorce: So, despite the surveillance, the parties have agreed to a no-fault divorce.  Under Pennsylvania law, there is a preference for a “no-fault” divorce over a fault divorce. A fault divorce can be entered for such reasons as Mr. Hamm having committed adultery.  There are several reasons why, however, parties can agree not to proceed with a fault divorce:

  • Under Pennsylvania law, the person seeking a fault divorce has to be the “innocent and injured spouse”. So, if Mr. Hamm would be able to prove that Mrs. Hamm engaged in conduct which would also give rise to a fault divorce, she could not obtain a fault divorce;
  • Perhaps, Mrs. Hamm did not have enough conclusive evidence to prove Mr. Hamm had engaged in adultery;
  • The parties do not want to “air their dirty laundry”. In many instances, if a party wants to obtain a fault divorce, there will have to be a hearing.
  • The parties do not want to pay for a fault divorce. As will be mentioned again below, under Pennsylvania law, the fault of a party which resulted in the divorce will not entitled the other party to more in the division of assets.

6. Harold’s Lawyers Want Sue to Turn Over the Recordings:  Supposedly, Mr. Hamm wants the recordings to show that the marriage of the parties was over long before the date of separation claimed by Mrs. Hamm.  If that is proven, then the end point for determining what is part of the marital estate has been shifted possibly 10 years earlier.  As mentioned above, under Pennsylvania law, the court will divide the assets and debts that were acquired prior to separation. The assets that exist after separation are not divided by the Court.

7. Hamm’s Company Has Nearly Quintupled Since 2007: If Mr. Hamm can prove that the parties’ date of separation was 10 years earlier, as he is alleging, then a significant portion of the increase in value of Continental Resources is excluded from division by the Court.  Of course, this can result in Mrs. Hamm getting a greater portion of the marital estate if there is a sizable amount of assets to which Mrs. Hamm has no claim.

8. They Initially Tried to Keep Divorce a Secret:  In many jurisdictions, family court records, like those in divorce cases, are not readily subject to public scrutiny. In Pennsylvania, even in counties where one can free access the docket entries for any case, the general public is not allowed free access to the actual documents filed.   In some situations, where there is a legitimate reason to keep the names of the parties private, especially in cases where children are involved, courts have used the initials of the parties instead of the parties full names.

9. Hamm Could Lose Controlling Stake of His Company:  It is speculated that Mrs. Hamm could receive half of Mr. Hamm’s 68% interest in Continental Resources.  While this is for the judge in the case to decide, if Mrs. Hamm were to receive 50% of the marital estate (which is not automatic under Pennsylvania law), a court could decide that Mrs. Hamm is not going to get any percentage of the business. Mr. Hamm might have to give Mrs. Hamm more of other assets so that she does not end up going into business with him.  Or, Mr. Hamm may have to liquidate some of his shares  of Continental Resources in order pay Mrs. Hamm her share of the marital estate.

10. The Couple Has Two Daughters:  These parties’ daughters are adults. The should not be thrust into the limelight as a result of their parents’ divorce.  Even if the children were minors, the children should not be the focus of any divorce case. A divorce case involves the end of the relationship between a husband and a wife. The relationships between parents and their children should not be legally impacted by the entry of a divorce decree. All too often, parents drag their children into the divorce proceedings telling them the details of the divorce. One does not have to be a mental health professional to know that this is not good for the children – especially for minor children.

There may be many more lessons that one can learn from high-profile divorce cases such as the one between Harold and Sue Ann Hamm.

Parents and Their Children

January 21, 2013 1 comment

Here is a link to a great article entitled, “8 Things You Should Never Say to Your Kid.” These suggestions are applicable to intact families as well as those where the parents of the children are not living together, i.e. divorced, separated, never married, etc.

How to Effectively Co-Parent After Divorce

January 18, 2013 2 comments

The following post was written by guest blogger Scott Morgan, a Texas divorce lawyer with the Morgan Law Firm.

Everybody agrees that children thrive in happy two-parent homes. Unfortunately, divorce is a reality for so many families. If you have children, divorce isn’t just the end of a relationship–it is the beginning of a new relationship as co-parents. In the aftermath of a divorce, ex-spouses need to refocus their energy into creating a new relationship that can help their children adjust to their new family circumstances. After practicing family law for nearly two decades I am convinced that if divorced parents would put their children’s interest first and co-parent with their ex (even if deep down, they really dislike him or her), there would be very little post-divorce litigation. Co-parents need to work together to raise happy, well-adjusted children in a stable environment. So here are my top tips on on how to effectively co-parent after divorce.

Tip #1 Leave the Pain of the Divorce Out Of Your Parenting

Your children did not ask for a divorce. Your children did not cause your divorce. Do not punish your children for the actions (or inaction) of your former spouse. Specifically, you should:

  • If you need to vent about your former spouse, call a friend or a therapist–do not rely on your child to be a sounding board.
  • Avoid taking it personally if (when) your child tells you they prefer something about your former spouse. It is all part of the adjustment.
  • Keep negative feelings and statements about your ex-spouse to yourself. Sharing them with your child will only hurt your child.

Tip #2 Communicate with the Other Parent

There is never a circumstance where it is okay to use your child as a messenger or bearer of bad news. Act like an adult and find a way to communicate with your co-parent. See if any of the following ideas can make this easier:

  • If you can’t effectively speak to each other, use email or a shared journal to write notes back and forth.
  • Technology can help you keep shared calendars up to date. Put important dates on this calendar, and update as soon as you become aware of changes.
  • Make sure your co-parent has up to date contact information, including cell phone and email, whenever possible.
  • Be sure to share information about school events, birthday parties, and sporting events. Give your co-parent enough notice that they can make make proper arrangements.

Tip #3 Treat the Other Parent With Respect, Whether Deserved or Not

If you are going to have an effective co-parenting relationship with your ex it is crucial that you treat that person with respect. As soon as they feel disrespected by you they are much less likely to be reasonable, to communicate with you, or to do any of the other things necessary for an effective relationship. Then you will be less likely to communicate with them and a vicious cycle has begun. Avoid this negative process by treating the other parent with respect. If it helps, try to deal with them as you would a difficult co-worker.

Co-parenting is not always easy, but it is much easier than the alternative of constantly fighting with your former spouse. The more you can work with your ex to establish an effective co-parenting relationship, the happier your children will be. I’m sure your children’s happiness is something you can both agree on.

You can see more divorce articles and videos on the Morgan Law Firm’s Austin divorce blog.

Just How Long Does it Take to Get Divorced?

December 28, 2012 Leave a comment

As evidenced by this article about the dissolution of Kim Kardashian’s brief marriage to Kris Humphries, Ms. Kardashian did not think her divorce case was proceeding fast enough. Two of the more popular questions that I get asked by clients are “How much does it cost to get a divorce?” and “How long does it take to get a divorce?” The answer to each of these questions is the same, “It depends”. It depends on the actual facts and circumstances of the case and it depends on the jurisdiction where the case is filed. States vary in their practices and procedures. Individual counties can vary their procedures as well.

Some jurisdictions are more pro-active with the processing of divorce cases with the Court setting the schedule for the proceedings of the case. Some are more driven by the parties to the divorce case. If the parties file the appropriate paperwork, the case moves forward; if neither party files the paperwork, the case can languish.

Let’s use a divorce filed in Philadelphia, Pennsylvania for example. A divorce complaint must first be filed to initiate the divorce proceedings. The divorce complaint will set forth the grounds for divorce. Those grounds are frequently requests for divorce on the basis of mutual consent and/or separation in excess of two years. Pennsylvania law does not require the parties to be separated for more than 2 years at the time they file for divorce. Rather, once the parties have been separated for 2 years, then the remaining paperwork can be filed for the entry of a divorce decree. However, if the parties have been separated for more than 2 years at the time the complaint is filed, the appropriate affidavit can be filed at the same time as the complaint.

After the complaint has been filed, the plaintiff has 30 days to serve the other party with the divorce complaint, if the defendant lives in Pennsylvania. If the defendant lives outside Pennsylvania, there is more time to serve. If the defendant is not served within the required period of time, the plaintiff has to reinstate the divorce complaint. Once reinstated, the plaintiff has more time to serve the defendant. It’s it like re-setting the shot clock for the sports fans who read this blog.

Both parties can sign their Affidavits of Consent 90 days after the complaint has been served – Not any time earlier. Some attorneys send the document to clients or unrepresented parties before they can sign the document. Frequently, those attorneys ask the party to sign the document and return it to the attorney undated. Once the 90 days period has elapsed, the attorney would date and file the document. I question the ethics of such practice. A party need not sign an Affidavit of Consent; therefore, if the Affidavit has not been filed, the party has the right to revoke the Affidavit. If there are economic issues to resolve, it is not uncommon for parties to engage in discovery and/or settlement discussions during these 90 days. According to the article about the Kardashian/Humphries divorce, the parties are supposed to be engaging in their discovery process.

Once both parties have signed and filed their Affidavits of Consent, the parties are not magically divorced. There is additional paperwork that must be filed with the Court either to get the grounds approved, so the Court can then decide the economic issues, or for the entry of the divorce decree, if there are no economic issues or if they have were resolved during that 90 day waiting period. The procedure is the same whether one is trying to get the grounds approved or seeking the entry of a decree. An initial set of documents are prepared and then sent to the other side. That paperwork advises the other side that this same paperwork is going to be filed with the Court 20 days later. Once that paperwork is filed with the Court, the Court holds it for another 10 days. That is the party’s last time to object to the entry of either the grounds order or the divorce decree. After those 10 days have elapsed, the file is submitted to a Judge for entry of the order requested. There is way of knowing how long a case can sit on a judge’s desk. Most of the judges in Family Court in Philadelphia have over-booked dockets.

If the request was made for an Order approving grounds for divorce, then once that order has been entered, either party can file the paperwork for the appointment of a Master to address the outstanding economic issues. If the request was for the entry of a divorce decree, the case is concluded once that decree is entered.

My point in explaining this process was to point out that the vast majority of the process to obtain a divorce in Pennsylvania is driven by the filings of the parties. They have some control over how fast or how slow a case proceeds.

I Guess There is an App for That

October 17, 2011 3 comments

According to this article, an app for the new iPhone 4s has enable a husband to ascertain the location of his wife through her iPhone. The app at issue is called “Find my Friends” and it lets people find out where people they know are through the location of their iPhones. Of course, there are probably security settings that turn off “Find my Friends”. I would suspect that, had the wife known that her husband had innocently installed the app on her new iPhone, she probably would have turned off “Find My Friends”.

People should be conscious of programs that indicate where they are (Find My Friends, FourSquare, “Check In” on Facebook, etc.) If you really do not want people to know where you are, then you should make sure these programs are closed.

A PACA for Puck and Quinn?

October 7, 2011 5 comments

For those of you who follow the television show Glee, you may be familiar with the story line by which the biological child of Quinn and Puck was given up for adoption and adopted by Rachel’s biological mother, Shelby, who had placed Rachel for adoption 16 or so years earlier. In a recent episode, Shelby indicated that she wanted Quinn and Puck to be a part of the child’s life. Later in that same episode, Quinn indicated that she was going to get her child back. This episode raised several interesting issues from the perspective of current Pennsylvania law.

When a child is adopted, unless it is a step-parent adoption, the rights of the biological parents are terminated. That would mean that Puck and Quinn, in the eyes of the Court, are no longer the parents of baby Elizabeth. In most instances, this is a two (2) step process. First, the parental rights of the child are terminated. Those rights can be terminated voluntarily or involuntarily. I would suspect that the biological parents’ rights would have been terminated by agreement, i.e. Quinn and Puck had each voluntarily agreed to have his or her parental rights terminated. Under Pennsylvania law, each parent would have to sign his or her own consent to termination of rights. After the hearing on the termination of parental rights, then there would be a hearing when Shelby would have adopted the child. As part of the adoption process, the Court’s order provides for the modification of the child’s birth certificate to reflect the adoptive parents as the child’s birth parents.

In some instances, the adoptive parents and the biological parents have what is sometimes referred to as an “open adoption.” In an open adoption, there is an agreement among the parties that the biological parents will continue to have contact with the child after the adoption. The frequency and nature of the contact is determined by the parties. It can run the gamut from an annual holiday card with a picture to actual partial physical custody. Such agreements were not always legally recognized by the courts in Pennsylvania. However, with the implementation of Act 101, which became effective on April 27, 2011, such agreements, now called “Post Adoption Contact Agreements” or PACAs, are enforceable and even modifiable by the Court.

The provisions of Act 101 include who can be a party to a PACA, how and when it can be enforced, and how and when it can be modified. Most importantly, it provides who is to be given notice of the right to enter into a PACA. So there is no misunderstanding, there is no right to enter into a Post Adoption Contact Agreement. However, the parties are to be given notice of their right to enter into a PACA. The adoptive parents can decide they do not want the child to have further contact with the birth parents. In turn, the birth parents can decide to withhold their consents to terminate rights. Whether or not there will be a PACA enabling the birth parents to have some contact with the child after the adoption will be the result of negotiation and/or mediation by the parties involved.

So, if this situation with Quinn, Puck, Shelby and the baby Elizabeth took place in Pennsylvania after the effective date of Act 101, unless there was a Post Adoptive Contact Agreement, Puck and Quinn would see the baby if and only if Shelby wanted such contact to take place. At any time, however, without a PACA, Shelby could decide that she no longer wants Puck or Quinn to see the child – and there would be nothing that they could do about it. If there were a PACA, if Shelby were not complying with the PACA, they could petition the Court to enforce the PACA. All they could get in seeking to enforce the PACA is an order directing Shelby to comply. They could not recover any monetary damages. They could not overturn the adoption. The question remains open, however, as to what the sanctions could be if Shelby failed to comply with the Court order directing her to comply with a PACA. If she could be held in contempt of court which could result in a fine or imprisonment. Still, the adoption would not be set aside.

In conclusion, while it makes for interesting television drama, despite her best intentions, Quinn is not going to be able to get her child back. Her rights have been terminated. Of course, I am not going to be the one to tell her. I don’t want to get slushied.

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