Can My Former Lawyer Represent My Spouse in Our Divorce?

While it is common and even preferable for a divorcing couple to utilize the same attorney in mediation, there are clear guidelines that generally prevent one spouse from hiring the other spouse’s former attorney in a trial divorce case.

The american Bar Association (ABA) Rules of Professional Conduct (RPC) rule 1.7 states: 

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (RPC rule 1.7: Conflict of Interest: Current Clients) 

Rule 1.9 of the same code states the following:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. (RPC rule 1.9: Duties to Former Clients)

Therefore, the RPC code of the ABA clearly lays out that a lawyer cannot represent your spouse in your divorce case, not only if he or she has represented you, but also if the lawyer’s current or previous firm has represented you in this case.

Further, a lawyer who has represented you or whose firm has represented you in the past in any way cannot represent your spouse in other matters, without your written consent, and may not use any information collected during your representation to your detriment.

Changing divorce lawyers is not uncommon. Often, in a time of great stress, a person chooses a divorce lawyer hastily or at the recommendation of another person without doing thorough review. Sometimes it’s just a matter of personalities not clicking. Whatever your reason for changing your lawyer, be sure to retain a new lawyer first, so that you are not without representation for a moment. Once you’ve signed the agreement with your new lawyer, inform the other in writing and request your file be sent to the new attorney by a given date.

If you have any questions, contact us here at Ulmer Legal and Mediation Services to see how we can help you.

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Dividing the Family Cars in a Divorce

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When couples begin the divorce process, all assets and liabilities need to be listed and valued in order to determine division between the spouses. Negotiation often involves one spouse being given certain assets in exchange for other assets of the same value – and greater need or emotional attachment are values along with cost that can be weighed in the negotiation process.

If a couple can settle out of court with the help of qualified divorce lawyers to ensure a fair and satisfying distribution between both parties, the couple maintains control over their own assets and their own preferences. However, if they cannot come to an agreement, the divorce must go to court and the division of assets is put into the hands of a judge.

Pennsylvania is an Equitable Distribution state, which means the judge does not necessarily divide property 50/50 but rather in a manner that seems fair. Therefore, when determining who gets what, including the vehicles, the judge will consider many factors.

Was the car owned and paid for completely before marriage by one spouse? It is almost assured that the owner will be awarded the car. Was the car purchased after marriage, but it’s in one spouse’s name and that spouse’s money was used to pay for the car or the loans? Chances are very likely that this spouse will receive the car, although other factors could come into play.

Who has greater need for the car? If there is only one car, who needs it to commute to work because there are no public transportation options available? If there are multiple cars, who needs the van to take the kids to school, or who needs the newer car for a long and difficult commute? All these individual factors weigh into the judge’s decision.

The car’s value is also taken into consideration. If the family has two vehicles and one is worth significantly more than the other, the judge will likely award the cars based on need, circumstances, and payment history, but may also award additional compensation to the spouse receiving the car with less value in order to balance the asset division.

If a car is awarded to you in a divorce settlement, be sure to change the title and owner immediately to yourself. If a balance is owed on a loan, the loan should be restructured or refinanced to have only your name on it.

Your divorce attorney will walk you through the many intricacies and details involved in the divorce process and starting over. Reach out to us here at Ulmer Law to see how we can help you.

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Guardianship

A guardian can be appointed by the court to make decisions on behalf of an adult individual who has been deemed incapacitated or incapable of making sound decisions on their own. The court must determine whether the individual for whom guardianship is sought can adequately manage their financial resources and/or meet basic essential requirements for their own health and safety. If you are the party filing for guardianship, the first step is to file a petition with the court. A hearing will be scheduled after review of the petition establishing a potential need. The petitioner (filing party) should secure expert testimony to corroborate the extent of the incapacity of the subject individual and the necessity for a guardian as the Petitioner has the burden to prove incapacity by clear and convincing evidence. At least ten (10) days prior to any scheduled hearing, notice of the hearing and a copy of the petition must be served on the individual for whom guardianship is sought (Respondent) explaining in plain language the possible ramifications of the forthcoming legal proceedings. Notice must also be given to any additional interested parties such as other family members or individuals that could serve as guardian.

In addition to a determination as to whether a guardian should be appointed, the court can also dictate what type of guardianship. Limited guardianship is appropriate where the Respondent is not totally incapacitated and is capable of managing some aspects of their life. In this case, the court must delineate what powers the Petitioner will have versus what rights the Respondent retains for themselves. Plenary guardianship grants Petitioner all rights as it relates to safeguarding the best interests of the Respondents. This would be appropriate for a Respondent who is totally incapacitated. The court must also indicate the duration of the guardianship with the court responsible to reassess the ongoing need for a guardian. The appointed guardian must act for the best interests of the Respondent and file a report each year with the court regarding the ongoing care of the Respondent. The Respondent or any other interested party can petition the court to modify or terminate the guardianship if circumstances change or if the appointed guardian is not acting appropriately.

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Forms of Service for Adoption

All interested parties, including natural parent(s), shall receive proper notice of pending termination and/or adoption proceedings. A copy of the relevant petition and subsequent hearing notice should be served on all interested parties, e.g. persons with parental rights to the minor child(ren) involved. Acceptable methods of service include personal service or certified mail, return receipt requested, restricted delivery. Proof of service should be filed with the court and/or submitted at the time of the hearing.

If you do not have a good address for an interested party, you can petition the court to permit service by an alternate method. Often, the alternate method of service permitted is publication in the newspaper where the party was last known to reside. The court would indicate for how many weeks the notice must be published in the newspaper. The newspaper provides a certification as to the publication that can be submitted to the court as verification that the required publication was completed. This adds to the costs of the termination or adoption matter as it can cost several hundred dollars to publish. You should also be careful to include all necessary information in the publication so that the court can accept the publication as acceptable service.

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Grounds for Involuntary Termination

Termination of parental rights means the natural parent of a child forever loses or forfeits any rights as a parent. This would include the loss of any standing for future custody actions. Termination of parental rights can generally only occur in conjunction with an adoption matter or involvement by a local social services agency. Pursuant to 23 Pa.C.S. § 2511, there are nine (9) grounds for involuntary termination of parental rights. Several of the grounds available relate to crimes committed by the parents. For example, rights may be terminated if the parent(s) have committed child abuse or neglect. This can result in a criminal charge of endangering the welfare of a child.

Rights may also be terminated in connection with rape. Specifically, whether the parent is the father of a child conceived as a result of a rape or incest. Either parent can lose their rights if convicted of any of the following offenses in which the victim was a child of the parent: criminal homicide, aggravated assault, a comparable crime in a different jurisdiction, or any attempt/conspiracy to commit the above. The party seeking termination must prove by clear and convincing evidence that the parent’s actions meet at least one of the grounds for termination as listed in the statute.

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Why do I have to attend Credit Counseling?

First, it is required by law. In accordance with Title 11 US Code Section 109(h)1, in order to be a debtor and file a Bankruptcy Petition a person must have in the 180 days before filing the petition completed received a certificate of compliance that they have completed pre-filing counseling with an approved agency. A debtor is also required to complete pre-discharge debtor education after you file. Both are required before the filer’s debts can be discharged however the pre-filing counseling must be completed before filing.

Second, avoid filing. Only credit counseling organizations and debtor education course providers that have been approved by the U.S. Trustee Program can provide these Certificates of Completion. Not all programs are the same. Many are just a rubber stamp to move you along to the filing however this provision was made a part of the law for a very important reason that people miss. If you attend credit counseling from a good program, they may be able to help you and you will NOT have to file for bankruptcy at all. Credit counseling agencies are designed to try to work with creditors to consolidate your debt. If you fit as a candidate for a credit counseling program, you will make one monthly payment and the credit counseling agency will pay something to each of your creditors until they are paid off. They will also work to try to stop the bleeding of the interest accumulation. Credit counseling agencies do a thorough budget process to find out if you have any disposable income to be part of the debt program. If not, you may need to resort to a Chapter 7 or Chapter 13 however many people do fit the program.

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Third, financial health. Although, being part of a debt consolidation program does appear on your credit report, it is not considered to have the same negative effects as filing a bankruptcy. If you are not a candidate for a credit counseling program and you do need to file a Bankruptcy petition, the hope is with completion of these programs you will be able to avoid being in these situations again. If you qualify for a Chapter 7 and you discharge all your debts, the worst thing that can happen is to be right back in the same spot a few years later. The pre-discharge debtor education helps people identify the reasons that they ended up in this spot. It gives great tips for financial health and budgeting processes that can help individuals stay on track. All of this information, if strongly considered, can get you going and staying on the right path.

Bottomline don’t discount the reasons why the law made this a requirement. If you want to find out more information about what would be considered a good credit counseling program as well as more information about Bankruptcy in general, make an appointment to talk to one of our attorneys.

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Agency Adoptions

An agency adoption is utilized my prospective parents who do not have direct contact or a pre-existing relationship with the natural parents. When working with an adoption agency, the agency serves as an intermediary between parties looking to adopt and parties looking to relinquish their rights as a parent and place a child for adoption. There are numerous requirements and background checks for parties looking to adopt to complete to be eligible as a prospective family. Parties looking to relinquish their rights can often view the profiles of parties looking to adopt to find a good match and vice versa.

Using an agency for an adoption does come at a cost for prospective parents. Fees vary by agency and state but can be in the range of $40,000. You may be eligible for a tax credit for a portion of these costs. Below are some of the adoption agencies in the Greater Philadelphia area:

Open Arms Adoption Network

Adoption Network Associates

Adoptions From The Heart

Adoption ARC

Living Hope Adoption Agency

Haven Adoptions

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Fostering to Adopt

There are always a number of children looking for quality foster parents to provide a stable, loving environment while waiting to be reunited with family or transition into a forever home. To get started as a foster parent, you will need to apply and pass several background clearances. Your home will also be inspected as part of the process. Training is available as well as support throughout the process including, but not limited to, financial support, medical assistance, respite care, and other caseworker services. You can indicate your preferences for which children you would take into your home in terms of age, sex, etc.

Serving as a foster parent can also be an avenue to adoption if reunification is not possible. When working with a social service agency, they will handle all the paperwork and guide you through all the procedures to complete the adoption. This can alleviate the financial costs associated with other methods of adoption such as attorney fees or agency fees. Additionally, many of the services you receive as a foster parent may still be available to you post-adoption. For more information on how to become a foster parent, visit:

http://www.buckscounty.org/government/HumanServices/ChildrenandYouth/FosterParent

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What If I Don’t Have the Documents I Need for Divorce?

When you meet with your lawyer or mediator to begin the divorce proceedings, you need to have many documents with you, both personal and financial. Not having access to these documents could delay proceedings or damage your case and limit your settlement options. A partial list of documentation includes:

  • Personal data: birth certificate; marriage license; life insurance and healthcare insurance; employment information and income; will and living will or advanced directive; power of attorney
  • Financial data: complete list of assets (bank accounts, investments, pensions, and value of homes, cars, and personal property like jewelry, furniture, etc); expenses (all bills, loans, mortgage, etc.); income tax returns for the past several years; list of assets or expenses obtained or incurred singly before marriage or given to individual as a gift after marriage (both spouses)
  • Childcare data: costs of childcare, evidence of each parent’s involvement in the child’s upbringing (involvement in school, sports, etc.) for custody settlement

This is a lot of information, and you may not have access to the records for a variety of reasons. But there are ways of getting what you need, although in some cases you may need help from your lawyer.

If vital personal records were lost or destroyed: For items such as birth certificates, green cards, income tax statements, and more, you can contact the federal government for duplicates. You will need to supply your social security number and you may need to show some other identification. In some cases, you may need to apply in person, while in others, like tax statements, you can make your request online.

If your spouse has the records of bills or assets and refuses to share: You may need to have your lawyer request a subpoena be issued to give you access to all the critical financial data you need. And as soon as possible upon deciding to divorce, sever all joint accounts, whether bank accounts, credit cards, or other things like family email, iTunes, social media, and others. See Shared Accounts and Your Divorce for more details.

If your credit card is in your spouse’s name but you are a secondary name, you can just call and have your name removed. If it’s a joint account, however, it may not be that simple. If both names are on any account, the company will hold you jointly responsible for the balance, and both of your credit scores will be affected by unpaid balances.

To prevent further use of joint credit cards or the withdrawal of money from joint bank accounts, your lawyer may have to request a temporary restraining order to freeze these accounts. Please discuss this with your attorney as soon as possible.

If you need evidence of child support and involvement: Contact your child’s school or daycare for copies of payments sent or parent-teacher conferences where the teacher would have recorded which parents attended. Photos and social media posts may also demonstrate the level of involvement in a child’s life by either parent.

Remember, it’s critical to have your documents as complete as possible in order to put you in a position of strength for your settlement or court appearance. You want to get the best financial and child custody arrangements to help you and your children be as comfortable as possible and be able to move on in a new life. Contact us here at Ulmer Law in Doylestown for our legal and mediation services. Let us help you.

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Issues When Dividing Vacation Properties in Divorce

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In Pennsylvania, if a divorcing couple cannot come to an agreement outside of court, all marital assets will be divided according to equitable distribution, which means, effectively, whatever the court thinks is appropriate after considering a number of factors. As long as both parties are reasonable, we encourage divorcing couples to avoid court so they can retain control of the division of their marital assets.

This is true for all assets, including vacation property. Even if the property was given to one spouse exclusively or purchased exclusively with one spouse’s income, and no family money was ever used to pay for its mortgage or upkeep, such property may be considered marital and will factor into the division of assets. Whether your divorce goes to court or not, you will probably have to decide what is to become of your vacation property.

Appraise the asset

Before you decide what to do with the property, you need to get an accurate appraisal of its market value. Also important is a complete listing of all costs associated with owning and maintaining the property: mortgage, interest, taxes, utilities, repairs, landscaping, and more.

With this clear, factual foundation, you can begin to evaluate the course of action that will best benefit the two of you and any children you have.

Decide your best option

Selling the property might be the easiest choice, allowing you to divide the funds received between you. It can be emotionally difficult to let go of a place where you may have created fond memories, but consider your need for liquid assets and the simplification of the process, which are important advantages to this option.

If you and your spouse are on reasonably good terms, you could choose to keep the property and divide its use. This is advantageous if children are involved, since they would still have the familiar vacation home to go to, providing them with much-needed security and continuity. But be sure to create a written document, signed by both of you, that will clearly delineate the times and seasons each will be using the home, the expenses each of you will be responsible for paying, and the dates those payments must be made. Your lawyer will be able to create a comprehensive document that will ensure that you both get good use out of the house without increasing tension.

You may also decide that one partner gets the family home and the other gets the vacation home. The complication here is in the valuation of each residence. If one house is worth significantly less, the spouse with the less expensive house can negotiate additional assets or benefits in order to balance the value of the two properties. However, if that house also has much lower expenses, the spouse with the more expensive home should insist that this benefit be factored into the negotiations.

 What about timeshares?

Treat a timeshare in the same manner you would treat a vacation home or vacation yacht or any other additional asset. First, get it appraised so you know what it is worth. Then, negotiate.

Get help

A seasoned divorce attorney can help you through all the nuanced legal and financial issues involved in divorce because we have helped many people through the process. Contact us here at Ulmer Law to see how we can help you, too.

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