Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

Henry E. Van Blunk, Shareholder in Stark & Stark’s Business & Corporate group, will present a seminar entitled, Understanding Deal Structure: Legal Agreements and Due Diligence at the 2009 Schwab Transition Planning Workshop. The Workshop will take place July 9-10, 2009 in Boston, Massachusetts. 

Mr. Van Blunk’s presentation will include a discussion on the key points of structuring a deal, as well as a discussion on the process, time frames and negotiating strategies for both internal and external ownership transitions. Mr. Van Blunk will also focus on the contracts, due diligence and documents associated with these transitions.

• Email This
• Print

While much of the tabloid debate surrounding when Jon and Kate separated seems focused on whether or not they were faking their relationship the past couple seasons and scamming their viewers; the legal reality is that the date of final separation plays a crucial role in the divorce.

The significance of the date of final separation lies in determining the “marital property”; or the portion of the parties assets that the Court has the power to divide between the parties.

In Pennsylvania, “marital property” means all property acquired by either party during the marriage as well as the increase in value of most nonmarital property during the marriage.  However, marital property does NOT include property acquired after final separation.

This could be significant in this case.  The Gosselins have already released at least two books and Kate has a third book scheduled to be released this fall, not to mention the lucrative speaking engagements the parties participate in.  Any income received from any of the book deals (or speaking engagements) after the date of final separation will not be considered marital property and will belong exclusively to the party who earned the income.

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

• Email This
• Print

Even though your car may sustain minimal property damage in an accident, it is possible that you may be seriously hurt, and entitled to a significant amount of money.  I recently assisted a Bucks County woman recover almost $100,000 when she had less than $500 worth of property damage to her car when she was rear-ended by another driver.  By using experts, we were able to prove that my client’s life had been significantly altered by the accident. 

• Email This
• Print

It has been alleged Kate Gosselin states in her divorce complaint that Jon and her have been living “separate and apart” for the past two years.  Many viewers of the show are claiming they have been “duped” and now believe the past 2 years of their television show was a sham. The truth: no one has been duped, and Jon & Kate have not been separated for the last two years.

First, you need to understand the significance of the 2 year separation language in Kate’s complaint.
In Pennsylvania divorcing spouses must establish a legal reason (or “grounds”) in order for the court to grant a divorce.  Pennsylvania has two no-fault grounds for divorce:

1. consent by both parties that the marriage is irretrievably broken; and
2. the parties living separate and apart for two years and an acknowledgment by one of the parties that the marriage is irretrievably broken.

In Pennsylvania, it is common practice for the party filing for divorce to allege both of the no-fault grounds for divorce in the complaint.  This is done so that if the other party refuses to give their consent (option #1 above) the filing party (Kate) can still proceed under option #2 once they establish the 2 years of separation.  Option #2 can be established despite the other party’s refusal to consent.

Absent one of the two no-fault grounds being established above, Kate (as the plaintiff) would have to proceed on a fault based ground (such as indignities or adultery) in order to get a divorce.
Obviously proceeding on a fault based ground, while wonderful for tabloids, would only further divide the parties, increase hostility, prolong the divorce and ultimately subject the children to unnecessary animosity.

This case clearly seems to be heading down the path for option #1: both parties will ultimately consent that the marriage is irretrievably broken.

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

• Email This
• Print

It is official.
 
On Monday, June 22, 2009 Katie I. Gosselin filed for divorce against Jonathan K. Gosselin in the Montgomery County Court of Common Pleas, Norristown, Pennsylvania.
 
Per the complaint, the address listed for both parties is Sinking Springs, Berks County, Pennsylvania.
 
Hmmm.  The first question that comes to mind is why didn’t Kate file in her home county?  Is she allowed to file wherever she wants?
 
First of all, just to clarify - this is not a jurisdictional issue: Pennsylvania, where the parties have lived and currently reside, certainly has jurisdiction to decide the case and divorce the parties.  What is at issue is venue: specifically, what court in Pennsylvania should hear the case.
 
Thankfully, we have laws which decide these procedural issues.
 
The relevant law is found in Chapter 23 of the Pennsylvania Consolidated Statues, Section 3104, which states:
 e) Venue.--A proceeding for divorce or annulment may be brought in the county:

1. where the defendant resides;
2. if the defendant resides outside of this Commonwealth, where the plaintiff resides;
3. of matrimonial domicile, if the plaintiff has continuously resided in the county;
4. prior to six months after the date of final separation and with agreement of the defendant, where the plaintiff resides or, if neither party continues to reside in the county of matrimonial domicile, where either party resides; or
5. after six months after the date of final separation, where either party resides. 

When you apply each of the above enumerated provision to the case we find: 

1.  the defendant (Jon) resides in Berks County;
2.  not applicable - Jon resides in the Commonwealth of Pennsylvania;
3.  matrimonial domicile - Berks County;
4.  where the plaintiff or either party resides - Berks County;
5.  where either party resides - Berks County.

Based upon the information known to the public, this divorce belongs in Berks County.
 
However, Rule 1920.2 of the Pennsylvania Rules of Civil Procedure also addresses venue in a divorce action.
 
Rule 1920.2 provides:
 
(a) The action, except for a claim for custody, may be brought only in the county
     (1) in which the plaintiff or the defendant resides, or
     (2) upon which the parties have agreed
          (i) in a writing which shall be attached to the complaint, or
         (ii) by participating in the proceeding.
(c) Notwithstanding any agreement of the parties, if neither the plaintiff nor the defendant has resided in the county at any time during the pendency of the action, the court, upon its own motion and for its own convenience, may transfer the action to the appropriate court of any other county where the action originally could have been brought.
 
So can they legally file in Montgomery County?
 
Yes. Legally they can be in Montgomery County if either one of the parties has established a residence in Montgomery County or the parties have already agreed in writing to Montgomery County.
 
My guess is the parties already have a written agreement to have the case heard in Montgomery County.
 
Why would they want to file in Montgomery County?
 
Privacy.  Go figure.  Berks County’s policy is to allow the public to access all legal pleadings filed with the court.  Montgomery County drastically limits public access to the records and, generally, only will release pleadings, orders and related documents to the parties or their attorneys.
 
Interestingly, by Rule, custody cannot be decided in Montgomery County.  Unless Jon and Kate agree on custody they will have to go back to Berks.
 
It is hard to believe that TLC does not have their hands in this matter.  By filing in Montgomery County they (or the parties) maintain greater control of the release of information.   Surely the creative producers at TLC will find a way to exploit this information black-out to boost the show’s ratings.
 
The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

• Email This
• Print

Edward Shensky, Shareholder in Stark & Stark’s Personal Injury Group, recently obtained a $3,200,000 settlement for a client and his family after he was electrocuted by a PECO power line. Mr. Shensky’s client owned a home whose back yard shared a property line with a PECO right-of-way. The branches of a fast-growing tree, located in the PECO right-of-way, surrounded a PECO electric line leading to the client’s home. Interference from the tree branches had caused repeated electrical outages over an extended period of time.

Mr. Shensky’s client made numerous requests to PECO in order to have the tree trimmed, however, PECO took no action. Mr. Shensky’s client then took matters into his own hands, and climbed the tree in an attempt to trim the branches himself. Unfortunately, he came in contact with a high-power PECO line and was electrocuted which caused severe and permanent brain damage.

• Email This
• Print

I’m in the process of a divorce in Bucks County, Pennsylvania.  My spouse and I are separated and I want to buy a townhouse in Newtown.  Can I buy it without having to worry about my spouse claiming ownership of it?

When you are separated and in the midst of a divorce, whether in Bucks County, Pennsylvania, or almost anywhere in the United States, you need to be mindful of any assets you acquire prior to a divorce decree being signed by a judge and the entry of an accompanying Order disposing of all marital property. 

While property acquired after separation, at least in Bucks County and all of Pennsylvania, is generally considered non-marital, it could be considered marital if the source of funds used to acquire the property existed prior to separation.  For example, if you are separated and you use funds to make a down payment on a condominium from a credit union account that accrued during the marriage, then that condominium would be considered marital property and subject to equitable distribution.  That means your spouse could have a claim to the condominium.  By using the tracing method a party is able to reveal the origination of the down payment.  Furthermore, earnings and losses on the investment may be considered marital and subject to equitable distribution. 

To safeguard a post separation acquisition from being considered marital property, it is best to use only funds earned after separation to make a post separation acquisition.

• Email This
• Print

John Cordisco, Shareholder in Stark & Stark’s Personal Injury group, was recently appointed to serve on the Pennsylvania State Advisory Board of the Association of Plaintiff’s Interstate Trucking Lawyers of America. The Association is the largest single group of plaintiff industrial trucking lawyers in America.

Mr. Cordisco has extensive experience litigating trucking accident cases throughout the state of Pennsylvania. He recently obtained a $3,000,000 settlement in the Middle District of Pennsylvania (U.S. District Court) for the family of a 12-year old boy who was killed as a passenger in a vehicle which was struck by a tractor trailer. The driver of the tractor trailer failed to conduct a pre-trip inspection, and subsequent discovery found that several brakes were out of alignment which contributed to his inability to bring his vehicle to a full and complete stop prior to colliding with the vehicle occupied by the minor. The settlement in this case was noted as one of the most significant results in the Middle District of Pennsylvania.
 

• Email This
• Print

Henry E. Van Blunk, Shareholder in Stark & Stark's Business & Corporate group, and Thomas D. Giachetti, Chair of Stark & Stark's Securities group, authored the article An Overview of Internal Succession Planning for the Registered Investment Advisor for the June 2009 edition of the CharlesSchwab Institutional Compliance Review.

The article discusses the critical components a company needs to consider in order to implement a successful succession plan. Mr. Van Blunk and Mr. Giachetti recommend advisors to formulate a succession plan which focuses on protecting existing client relationships, planning for business continuity and determining what will happen when an the advisory firm founders retire. You can read the full article online here.  

• Email This
• Print