Please see my latest post published on LinkedIn about dividing the marital home in a divorce. Click here to read the post.
Dividing The Marital Home In A Divorce
Posted in Divorce
Repairing The Parent Child Relationship When College Is An Issue
In New Jersey, a parent has an obligation to contribute to his or her child’s college education. There are a number of factors that a Court typically considers when determining the amount of the contribution. The primary consideration is ability to pay. The party’s relationship with the child is also a factor to be considered, but until recently, Courts did not focus on this issue. In other words, even if the parent and the child did not have a good relationship, the Court would require the parent to contribute to college to the extent they had the ability to do so.
A recent decision out of the Ocean County Family Court, Black v. Black, attempts to address the issue of a parent and child having a broken relationship when the child is nevertheless requesting that the parent contribute to college. The Court decided that it would require that the parent and child attend counseling together as a condition for the payment of college.
Hopefully, this decision will have a widespread impact on how Courts deal with the issue with payment of college. In many instances , a parent and a college aged child have a strained relationship and the relationship can reach a breaking point when a parent is ordered to pay for college despite the child refusing to communicate with the parent. Now there is recourse for the parent who would like to repair the relationship, but until now, was powerless to do so.
This decision also makes sense if one looks at how an intact family would address the same situation. If a child and a parent did not have a good relationship, the parent would at least be able to have some leverage in refusing to pay for college to persuade the child to respect the parent and work to repair the relationship. Until now a parent in a family that was not intact did not have this same leverage. Requiring counseling as a condition of continued payment may not force a relationship to be repaired, but at least it starts a dialogue between the parent and child.
Posted in Support
What Parents Can Learn From Casey Kasem
Tonight I appeared on the radio show, “Crime and Justice With Dan Schorr.” One of the topics that we discussed was the ongoing family dispute concerning radio icon, Casey Kasem. For quite some time, Casey’s current wife, Jean and the children from his first marriage have been battling very publicly. A few weeks ago, Jean left with Casey, and the children did not know his whereabouts. His daughter Kerri went to Court in an attempt to find Casey, and a Judge ordered that she be named a temporary conservator and put in charge of his healthcare. Casey is very ill, suffering among other things, from a form of dementia.
A day or so ago, there was another very public battle between Jean and Kerri when Kerri came to the residence where Jean and Casey were staying and attempted to take Casey to the hospital. In Kerri’s opinion, Casey’s medical condition was worsening. One thing led to another, and Jean ended up hurling raw chopped meat at Kerri in a display of anger. Of course, this incident was reported in the media and only added to the circus-like atmosphere surrounding this dispute.
In my interview, I compared the situation concerning Casey Kasem to a child custody battle. In the Kasem matter, like many custody cases, parties are so focused on their own emotions and anger, that they often lose sight of the subject of the dispute, which in this case is Kasem, but in child custody matters is the child or children. In this case if Casey’s wife and children could turn their focus to him instead of each other, they would likely rethink their actions. Similarly, in child custody matters, if parents could simply focus on what is best for the child, there would be a lot less animosity and disputes. Unlike the Kasem matter, parties in a custody dispute can always turn to the Court for guidance on how they should proceed with respect to their children. The Court is guided by best interests of the children, even though parents sometimes cannot see the forest from the trees. While parents’ actions are not typically publicized like those of the parties in the Kasem matter, they can be just as ludicrous and more seriously, detrimental to their children.
In a custody dispute that I recently settled, the Judge after hearing the Agreement placed on the record, commended the parties for their efforts in putting aside their personal feelings and settling the matter for the benefit of their children. She stated that the parties gave their children a valuable lesson by settling. They showed their kids that adults can resolve disputes themselves without a Judge telling them what to do. I will continue to remind future clients about this wisdom. While Judges are present to assist litigants, when it comes to children, it is usually best for all involved that parties maintain some control over the situation.
During my interview tonight, the interviewer asked me if the Kasem matter was too far gone to be remedied. I told him that there was always hope for parties to gain control over their emotions and bad feelings and learn to cooperate for the benefit of their loved one. It is the same in custody disputes. No matter how much anger parties have toward each other, they can always learn to set these feelings aside to be good parents and do what is truly in the best interests of their children.
Posted in Custody
George Clooney Is Getting Married And Needs A Prenup
We all heard the news about George Clooney’s engagement. After holding out for so long, he is now finally getting married. However, he has a lot to lose in the event of a divorce. A prenuptial agreement is a must. See my recent article on Yourtango.com discussing a proposed prenup for George.
Posted in Divorce
Taking “Stand By Your Man” To A New Level
I recently commented on CNN about the bizarre headline grabbing case involving LA Clipper’s owner, Donald Sterling (see Clip here). The focus of my interview, however, was not Mr. Sterling himself, but the battle between his wife of more than fifty years, Rochelle, and his friend, former personal assistant and alleged mistress, V. Stiviano.
Prior to the controversy involving Mr. Sterling regarding the alleged racial remarks he made which were recorded by Stiviano, Rochelle Sterling sued Stviano for the return of marital property that was allegedly given to Stiviano by Donald Sterling. This included luxury vehicles and a monthly stipend. The lawsuit is highly unusual and as a practitioner of family law for more than twenty years, I can safely say, I have never seen anything like it.
What is not unusual is for a party to a divorce to claim that their cheating spouse dissipated marital property by lavishing their paramour with gifts. Dissipation of assets by one spouse without the knowledge of the other is a factor that a Court can often consider in dividing up marital property in a divorce. Here, however, Rochelle Sterling is “standing by her man,” and not divorcing him despite knowing full well that he took marital assets, her assets, and spent them on Ms. Stiviano obviously without Rochelle Sterling’s consent. She is trying to get the assets back from Stiviano instead. Whether this strategy is successful remains unclear. It is also interesting that Mr. Sterling is not involved in the lawsuit either as Plaintiff or Defendant. One wonders whether the Court will join him in this case, as he was clearly involved in the transfer of assets.
What is definite is that we have not heard the last of the Sterlings. We will see whether Rochelle takes a more active role of the ownership of the Clippers. And from a legal perspective, we will see whether her unique lawsuit serves as a model for future lawsuits of spouses suiting alleged paramours
Posted in Divorce
A Parent’s Right to College Records
For many parents, the financial support they provide to their children does not end after their children graduate from high school. For divorcing parents in particular, the payment of their children’s future college expenses is often a specific part of their Marital Settlement Agreement. In New Jersey, college costs are generally viewed by the Court as an extension of the parent’s child support obligation. In Pennsylvania, the payment of college expenses is not required by the Court, but many parents still choose to include a provision in their agreement which addresses what proportion each party will contribute to the child’s future college costs.
Consequently, many parents end up with a divorce agreement that addresses college expenses many years before the child is ready to enter college. It is not uncommon for a parent/child relationship to become strained or dissolve entirely by the time the child is college age. This creates a particular challenge for a parent who is required by his/her Property Settlement Agreement to contribute to the child’s college expenses, but has little to no involvement in the child’s academic life. Without having access to a child’s college records, the parent has no way to verify that the child is actually enrolled as a fulltime student or to confirm how the child is performing in his/her classes.
To further complicate matters, the Family Educational Rights and Privacy Act (FERPA) grants college students over the age of eighteen the right to privacy with regard to their educational records. A parent could therefore be obligated to pay tens of thousands of dollars for their child’s education, only to be denied access to any information regarding the child’s performance in college.
This particular scenario played out in the New Jersey Superior Court case of Van Brunt v. Van Brunt. 419 N.J. Super 327 (Ch. Div. 2010). In that case, the student’s father was obligated to support his daughter until she was emancipated. The parties’ Marital Settlement Agreement specified that emancipation would occur after the completion of four academic years of college. The Agreement did not, however, address the father’s access to his daughter’s college records, which she refused to provide to him. The Court in Van Brunt found in favor of the student’s father, holding that a “parent who is required to pay child support and college tuition for an over-eighteen child has a right to verify the child’s ongoing status and performance as a full-time student.” Id. at 333. If the college-aged student refused to provide such documentation to the party contributing to the college costs, the Court held that the student “should not be permitted to simultaneously assert an entitlement to ongoing mandatory child support and/or college contribution from [the parent].” Id. at 334.
As to the type of documentation the college student must provide, the Court in Van Brunt defined this documentation to include proof of enrollment, course credits, and report cards. The Court even went so far as to hold that the payee (the parent receiving the child support payments) was equally responsible for providing this documentation. The Court reasoned that the party receiving the support “has a reciprocal ongoing duty to provide information to [the payor] concerning [the child’s] fulltime collegiate status.” Id.
While the case law supports a parent’s right to a student’s college information, it does not guarantee that this information will be easily accessible to the parent. The best way to minimize future conflict over access to this information is to include language in a Property Settlement Agreement which specifically grants both parties the right to access the student’s college grades, courses, and proof of enrollment, and which also defines when and how this information shall be conveyed from the child or payee to the payor.
Putting A Ring On It (And Not Getting It Back)
State rules vary governing what happens to an engagement ring if the marriage fails to occur. There are even different rules from state to state determining whether the ring becomes marital property subject to division after marriage.
This week, I had the chance to comment on the recent New York case where a restauranteur proposed to his girlfriend sealing the deal with a $53,000 sparkler. When the girlfriend (now fiancee) refused to sign a prenuptial agreement, the restaurateur broke off the engagement. See clip here.
If the story ended here, under New York law, the ring would have to be returned to the restauranteur. In New York, an engagement ring is a gift conditioned upon marriage. Thus, if the marriage does not occur, despite who breaks it off, the ring must be returned to the donor.
In this unusual case, however, after breaking off the marriage via text message, the restauranteur, being a generous guy, decided to send a subsequent text to his former fiancee stating that he would let her keep the ring as a “parting gift,” and that she could use it to make a down payment on a home. Later, he recanted this message, saying he was only joking and requested the ring be returned.
The Court decided that the ring did not have to be returned despite the existing law. It was determined that the second text message sent indicating that the ring was a “parting gift,” was essentially regifting the ring and thus, it became an irrevocable present to the donee. While this case is highly unusual and very fact specific, it does teach an important lesson: parties need to be mindful of what they put in writing, whether by text, email, social media posting or otherwise.
Do you think that the Court made the right decision? Please feel free to leave a comment.
Posted in Uncategorized
Conscious Uncoupling Is Just A Fancy Term For Divorce
There is a popular children’s book series where the main character (who is very fancy) frequently speaks in sophisticated phrases and then informs the reader, usually in parenthesis, the common definition of the phrase. This book series came to mind when I heard the term “conscious uncoupling” bantered about in the news recently. For those of you unfamiliar with the term, it was used by actress Gwyneth Paltrow to describe the breakup of her ten-year marriage with Coldplay frontman, Chris Martin.
Basically, the premise behind “conscious uncoupling” is that each party takes responsibility for their own actions in the demise of the marriage and does not assign blame to the other. In practice, this idea allows the parties to amicably resolve their differences for the benefit of their family, especially their children. While Ms. Paltrow is using this phrase, she did not coin it. In fact, it was first used by a therapist in or about 2010. See more information about the concept by clicking here.
Unbeknownst to me, as a family law attorney, I have been “consciously uncoupling” couples for years. I just call it divorce. After all, in most jurisdictions including Pennsylvania and New Jersey, where I practice, the Courts discourage parties from assigning blame in divorce. I consistently advise clients to look beyond the wrongs they believe they have suffered in the marriage because Courts do not allow for revenge or retribution. Instead, the focus is usually on the basic economics of the matter and the best interests of the children.
Moreover, Ms. Paltrow in her need to “consciously uncouple” is no different than the average person getting divorced. Parties usually have the best of intentions at the outset of the matter. They don’t want their children to be harmed in divorce, and they usually want only what is fair in terms of a financial outcome. Nevertheless, there is usually a reason why parties divorce, and if they were able to agree on everything, then they would stay married. These differences in opinion and outlook often cause the animosity and fighting that make divorce a dirty word.
While it is unfortunate that Ms. Paltrow and Mr. Martin’s marriage has reached the breaking point, there is always a lesson to be learned from the celebrity divorce, or “uncoupling.” In this case, we can understand that celebrity couples, like average couples, no matter how fancy they phrase it, want nothing more than an amicable parting of ways and the best outcome for their children.
Posted in Divorce
The Marriage Diet
Did you know that marriage can keep you thin? I call it the marriage diet. For if you have a lifestyle clause in your prenuptial or postnuptial agreement, you may have contracted to keep your weight at a certain level, refrain from cheating, or engage in sexual relations with a certain frequency, for example. If you don’t do what you agreed to do, your spouse could have the right to divorce you and perhaps even withhold payments to you.
Recently, I was asked to contribute to an article on Forbes.com concerning lifestyle clauses in prenuptial and postnuptial agreements. See article by clicking here. The article focused more specifically on infidelity clauses in agreements. However, as mentioned, parties can include a variety of clauses in an agreement in an attempt to control their partner’s behavior. The big question is whether these clauses are enforceable.
As I commented, lifestyle clauses are very difficult to enforce. No judge is going to require you to step on a scale, hire a private eye to follow you or monitor your sexual activity. And if your spouse has the evidence to prove that you broke the promise that you made to control your weight or other behaviors, whether you will suffer the consequences set forth in your agreement remains a question for the presiding court.
Nonetheless, lifestyle clauses like all other aspects of a prenuptial or postnuptial agreement, force parties to discuss difficult issues that they otherwise would avoid. More important than discussing the behaviors that constitute these lifestyle clauses, parties are forced to discuss financial issues, such as what will happen to their property in the event of a divorce or even death. How will they manage their finances? Will they have joint accounts or separate accounts? Will one spouse forfeit his or her career and rely on the other for financial support? Discussion and agreement on these issues are crucial not only for the purposes of these agreements, but also for a strong marriage.
So even if the marriage diet is not in the cards for you, discussing the issues that your partner deems important before you get married or before you head for divorce, just might save your relationship.
Posted in Divorce
Parents Beware! Your Teenager Could Sue You
Today on Good Day Philadelphia on Fox 29, I spoke about the New Jersey teen who is suing her parents for support. She believes that they should pay for her parochial high school education as well as her future college education. See details of the story here.
While the Court initially rejected her claim regarding payment of high school tuition as well as reimbursement of attorney’s fees that her friend’s father has been paying on her behalf, a hearing is scheduled in April on the issue of payment for college.
In New Jersey, divorced parents usually have to contribute to their child’s college education based on the theory that children of divorced parents should be treated the same as children of intact families. Since, most parents do their best to send their children to college these days, children of divorced parents should have the same opportunity. When determining how much a divorced or non-married parent has to pay for college, the Court can consider a number of factors including the child’s aptitude, cost of the proposed college, the parent’s ability to pay, the child’s ability to help mitigate the cost, and the level of communication between the parent and child, that is, was the parent involved in the college decision making process.
The case at hand is so interesting and has so many people talking because it involves a child suing her parents (who are not divorced) to obtain the same benefits as the child of a divorced couple could otherwise receive in New Jersey. If the Court here decides in favor of the child, it will go against one of the most basic tenets of our society — that parental decision making should not typically be disturbed and that parents’ generally have the right to raise their children as they see fit.
Moreover, there is a question here as to whether this child is emancipated or should be emancipated such that the parents will have no further obligation to financially support her. In New Jersey, emancipation does not usually occur until age 18 or graduation from high school unless the child furthers his or her education through college. Emancipation then occurs when that education is complete. Once a child is emancipated, they are no longer within the sphere of parental influence.
Here, this child moved out of her parent’s home and went to live with a friend. She claims her parent’s were mean and abusive to her. The parents’ deny these allegations and are begging this child to return home. Given that this child certainly acted outside of the sphere of her parents’ influence, why should her parents be obligated to continue to support her? This is a question that the Court will undoubtedly answer.
Most parents are outraged by this case. They cannot believe that their own child can turn around and sue them. But this is not so unusual — cases of this nature do occur from time to time. It remains to be seen how the Court decides this. Certainly, if the Court finds in favor of the child, the floodgates of litigation will open and we will see many more instances of parents having to defend their decisions in a legal forum.
Posted in Support
Attorney Jennifer A. Brandt, chair of Cozen O'Connor's Family Law practice, has represented a wide variety of clients in hundreds of family law cases in Pennsylvania and New Jersey. Jennifer is a regular legal commentator on national and local television outlets such as CNN, Fox New Network, HLN, MSNBC, Fox29, ABC News, NBC and CBS and frequently writes and contributes to articles in numerous publications, including the Huffington Post, Fox Business.com, The PhiIly Post, Avvo.com, Allparenting.com, The Philadelphia Inquirer, The Philadelphia Business Journal, the National Law Journal, and Main Line Today magazine.
