By Zachary Petersen, CPA, CVA, CFE, Marcum LLP | AAML Pennsylvania Platinum Partner

Imagine you are the owner of a famous and well-respected restaurant. In your employ are master chefs and culinary experts covering a range of different backgrounds and techniques. Among them are a saucier, creating various sauces used throughout the menu, and a pasta chef, responsible for imagining and delivering some of the menu’s entrees. There is also a pastry chef and a chocolatier, together creating beautiful and imaginative desserts. And, of course, you have a sommelier to select the perfect wines to pair with each dish. 

Each night, the kitchen is tasked with providing a top-notch experience to the guests, with a menu that changes regularly. Every dish is thoughtful and well-executed. Each specialist works together to build a memorable experience and must know their role in relation to each other to deliver excellence.

Now imagine each dining experience is its own case, and you, as the owner, are the attorney responsible for delivering excellence to your customers (clients). You must direct your team and understand the capabilities and limitations of each member to produce an effective and cohesive approach.

Likewise, litigation can require several different experts in different fields to build the arguments necessary to prevail. Experts are necessary to review the facts, parse the technical requirements in their field, and provide an analysis or opinion based on their work. A chocolatier will not be qualified to present wine pairings for the guests in the same way that a financial expert cannot opine on the adequacy of manufacturing safeguards. Generally, professional standards expressly prohibit opinions on matters outside the expert’s scope. Although the expert may have a general understanding of how effective manufacturing safeguards can reduce overall risk to a business, they cannot be expected to deliver an opinion on what policies, procedures, and equipment are considered effective.

Depending on the facts of the case, much like our imaginary kitchen, several different experts may be needed to provide analyses within their specialties to provide a comprehensive and effective service to the client. Although a financial expert can certainly serve as your only expert if all relevant issues fall within the scope of that individual’s field of expertise, you should still consider carefully. Some issues may seem like concepts on which your expert can provide an opinion, but sometimes, they fall outside that scope of expertise or veer into legal determinations.

It is also vital that each expert is informed of their specific role for what they are being asked to do, even if the task is already within their field of expertise. If the kitchen has a theme for the evening, such as “An Evening in Tokyo," you probably wouldn’t want your pasta chef delivering authentic German spaetzle that night. Similarly, although a valuation expert can provide the value of a business under the fair market value standard, complete with a formalized report, if the jurisdiction governing the dispute only allows the use of the fair value standard or if valuation schedules would have sufficed for settlement purposes, the expert will have ultimately spent extra time developing valuation discounts or writing a report, to provide a conclusion of value that would not be appropriate for the client’s needs.

Experts, particularly financial experts, are a powerful tool for litigants and their attorneys. However, we, as experts, must be careful in providing opinions that are within the realm of our expertise. It is required, both from a legal standpoint and from the rules set forth by the associations we are members of. It is essential that experts, attorneys, and clients are all on the same page regarding what we can and cannot address. Being as specific as possible helps ensure our work is unambiguous, appropriate for the client's needs, and within the confines of our expertise and professional requirements. 

So, next time you engage an expert or are engaged as an expert, make sure the expectations are clear to all parties, both verbally and in an engagement letter, as to what the expert is being asked to do. You’ll find better client outcomes and just might save everyone a headache.

By Marcum LLP | AAML Pennsylvania Platinum Partner

The marital lifestyle or the standard of living experienced when a couple resides together during marriage can be a crucial element in divorce proceedings. Financially, how did the couple live while they were married? What amount and type of income support this lifestyle? How much alimony/child support should be awarded to sustain this lifestyle? These questions can be answered by engaging a forensic accountant to perform a lifestyle analysis.

What is a Lifestyle Analysis, and What Does it Provide?

A Lifestyle Analysis is a thorough examination of the standard of living that a couple enjoyed during their marriage. This analysis is crucial to help establish a factual basis for the couple’s spending and saving patterns and overall financial status. Forensic accountants can paint a factual picture of the marital lifestyle and expected future spending through a diligent review of historical financial records such as bank, credit card, and investment account statements, as well as tax returns, property records, and loan documents, to name a few.

By reviewing the above documents and interviewing the spouse who manages the financials (if that is a feasible option), a Lifestyle Analysis can play a crucial role in the divorce process, especially when it comes to the calculation of alimony/child support, uncovering hidden assets, and identifying various sources of income.

Spending:

A look into historical spending from a party’s marriage can provide a benchmark for the future spending of each person. A review of the bank statements allows a forensic accountant to categorize individual transactions into the income and expense categories identified from the Case Information Sheet, taking into consideration the following:

• Spending of the parties both individually and jointly.
• Recurring and non-recurring expenses.
• Dissipation of marital assets (depletion of marital funds), if any.

All of the above considerations can paint a picture of the amount required to maintain a similar standard of living post-divorce to help the parties and their attorneys determine alimony and/or child support payments.

Hidden Assets:

During a divorce, it is not unusual for one party to attempt to conceal certain assets from the equitable distribution process. Through a review of bank statements provided, forensic accountants can uncover various hidden assets by analyzing transactions within the account statements, such as the following:

• Transfers to additional bank/investment accounts not known by one of the parties.
• Payments to loan institutions uncovering additional assets purchased during the marriage.
• Transfers of money to corporations or entities for investment in their business.

Uncovering hidden assets is essential to ensure a fair and equitable division of property during a divorce. Even though parties are required to be transparent in their financial disclosure, a thorough lifestyle analysis is an essential step in ensuring that all assets are on the table and considered during divorce proceedings.

Other Sources of Income / Earning Habits:

The Lifestyle Analysis can also provide insight into additional sources of income that may not have been disclosed, including but not limited to the following:

• Spending in excess of reported income without accumulating debt can indicate additional, undisclosed sources of income or assets.
• Review of the income tax returns can identify investment income such as interest, dividends, and capital gains. These income sources can also be identified and confirmed through analysis of bank statements.
• Direct deposits from additional employment unknown to one party.

Once the entirety of income is disclosed, there is a clearer picture of the true funds required to support the standard of living of the parties.

The above discussion is a glimpse of why a well-prepared lifestyle analysis can be essential in ensuring all income and expenses are identified during divorce proceedings. It helps to ensure the likelihood of an equitable settlement by revealing any discrepancies between the lifestyle maintained and the income and assets reported. It can also help the court make informed decisions based on the true economic partnership of the marriage, ensuring the dissolution process is not only legally sound but also adheres to the principles of fairness and equity for both individuals as they transition to their new, independent lives.

By Christopher Byrnes, MBA, Marcum LLP | AAML Pennsylvania Platinum Partner

Accuracy is not just a goal in business valuation—it's a necessity. Marcum LLP performs valuations regularly and understands that precise calculations and judicious adjustments are essential for reliable valuations. One of the most critical adjustments we make is determining 'reasonable compensation' for business owners, an aspect often overlooked yet vital for presenting an authentic financial portrait. This article delves into the nuances of reasonable compensation and its profound impact on business valuation, sharing why it must be carefully assessed to reflect the true economic health of a company.

Reasonable compensation is a critical adjustment in a business valuation as it ensures that the profit/loss recorded by the business reflects the true economic picture by adjusting for the appropriate level of compensation for the business owner. If an owner is over-compensated, the business might appear less profitable than it actually is, as would under-compensation inflate its profitability. Both scenarios would lead to inaccurate valuations.

Numerous resources can be utilized to provide a guideline for reasonable compensation, as would using industry statistics of compensation within the owner’s industry. However, reasonable compensation is not simply based on job title and hours worked; it must also consider the annual performance. For example, the CEO of a consulting firm whose revenue is $5,000,000, where the CEO generates a small portion of the business revenues as compared to a CEO who brings in almost all $5,000,000 in revenue. If valuation experts were to utilize statistics based solely on the industry, the revenue of the company, and hours worked, they would have arrived at the same reasonable compensation for both CEOs listed above. However, this would not portray an accurate picture as an owner who generates $5,000,000 of revenue would obviously be entitled to a much higher compensation level than that of a CEO who originates very little in revenue. In this scenario, replacement compensation should consider what benefits the CEO brings to the company instead of only focusing on their hours worked and job title.

For example, let’s compare the reasonable compensation levels of professional athletes. There are thirty-two teams in the National Football League, each with a starting quarterback. Over the course of a season and career, there will be significant differences in their statistics and success despite all having the same job and working the same hours within the same industry. If an athlete were hypothetically replaced, the amount paid would vary based on their actual accomplishments. The same approach must be utilized when considering each business owner’s reasonable compensation.

The art of business valuation hinges on the fine balance between numbers and judgment, and nowhere is this more evident than in establishing reasonable compensation. As we have seen, this is not a simple arithmetic or a one-size-fits-all approach but a complex consideration of individual contribution and industry standards. This is why choosing a firm with the experience of having valued thousands of businesses, such as Marcum, is paramount.

On November 29, 2023, Carolyn presented along with fellow AAML members Carolyn N. Daly (NJ) and Heather Hostetter (MD) s a panelist in the AAML webinar, The Untapped Potential of Arbitration. The panel was moderated by AAML members Jared Pinkus (Ill) and Ryan Nowlin (OH) and was attended by approximately 50 attorneys, mostly Fellows, from across the United States. The panel discussed the benefits of binding family law arbitration, including how it can provide a more efficient, cost-effective, and tailored approach to resolving family law disputes, and provided their insights about drafting effective arbitration agreements, managing client expectations, and best practices for arbitrators and participants. The panel also addressed questions posed by the attendees. Carolyn recently authored an article in the ABA Family Advocate entitled, Family Law Arbitration: An Underutilized ADR Option, which discussed the reasons why family law arbitration is expedient, reliable, and cost-effective, including that it allows parties to litigate their disputes confidentially, select their decision-maker and procedural rules, schedule the hearing according to the availability of the parties and their witnesses, and obtain a final decision within weeks or months. The article also answered common questions about family law arbitration, including some common misconceptions, and explained how the Uniform Family Law Arbitration Act (UFLAA) provides a roadmap for the proper resolution of unique family law issues and guardrails for vulnerable family law participant. A link to the article is found here (add link). Carolyn was instrumental in drafting and advocating the Pennsylvania Family Law Arbitration Act, HB 917, which was passed by the Pennsylvania Senate Judiciary Committee on November 15, 2023, and is awaiting consideration by the Senate Appropriations Committee.

By Elle Barr, Our Family Wizard | AAML Pennsylvania Sponsor

Custody schedules lay the groundwork for effective co-parenting. Explore the pros and cons of the 70/30 plan, compare 70/30 against other schedules, and download free templates.

What Is a 70/30 Custody Schedule?

A 70/30 custody schedule is a co-parenting arrangement where one parent has the child 70% of the time while the other has 30%. This schedule has become less common than others over the past 50 years.

A 70/30 custody schedule is an alternative to joint equal parenting schedules like 50/50 or 60/40 plans. In a 70/30 plan, one parent has substantially more time than the other parent. This can work well for families who cannot split time equally.

Key Takeaways

• A 70/30 custody schedule is a physical custody arrangement where one parent has the child for 70% of the time, and the other has the child for 30%.
• Factors such as geographical distance or work commitments can make a 70/30 schedule more practical for some families than a 50/50 or 60/40 schedule.
• A 70/30 schedule often involves a 5-2 split, where one parent has the child during the school week, and the other has weekends.
• When deciding on a 70/30 custody schedule, co-parents should prioritize the child's well-being while considering logistical factors like work schedules and geographic distance.
• Co-parents can use a dedicated app to track and manage 70/30 custody schedules.

Many factors affect which schedule the co-parents select. Co-parents may start with one schedule and switch to another as circumstances change. In general, most co-parents hope to make a 50/50 custody schedule work. This joint custody schedule feels attractive because it tries to split parenting time down the middle, giving each co-parent equal parenting time. However, many co-parents can’t feasibly maintain a 50/50 schedule for various reasons.

“Some situations that prevent a 50/50 schedule are simply unavoidable. For example, perhaps geographical distance or work commitments interfere with one parent’s ability to exercise 50/50 parenting time.” -Samuel Berse

Co-parents who can’t maintain a 50/50 tend to compromise with 60/40 split custody, which gives one co-parent primary physical custody with 60% of the co-parenting time. If the 60/40 split still creates logistical problems, co-parents may land on a 70/30 split.

“A 70/30 parenting time schedule, where one parent has two overnights every week, is a common arrangement designed to prioritize practicality over equal parenting time, especially when factors such as geographical distance or work commitments come into play,” Berse says.

Here's how Family Law Attorney Julie Colton describes the difference between schedules like 50/50 and 70/30:

“Primary physical custody is when a parent has more than 50% of the custodial overnights. Partial physical custody is when a parent has less than 50% of the custodial overnights. Therefore, a 70/30 custody arrangement would be a primary/partial custody arrangement. This means that one parent has primary physical custody, and the other parent has partial physical custody.”

Like Berse, Colton points out that the 70/30 schedule usually arises out of necessity. “Usually, co-parents take on a primary/partial schedule like 70/30 when they are dealing with logistical constraints. For example, when parents live more than 30 to 40 minutes from the child’s school, a shared custody schedule (50/50) is less practical.”

Colton adds that it is important to note that the physical custody schedule does not affect the legal custody arrangements, which designates decision-making responsibilities for a child.

“Parents with a 70/30 physical custody schedule still usually have a shared legal custody agreement,” - Julie Colton

Although this schedule was popular in the 1970s, many experts don’t recommend it because it gives one co-parent significantly more time with the children. Also, the available 70/30 scheduling options can be difficult to implement.

“Determining which parent should have primary physical custody of a child and what particular parenting time schedule should be implemented can be quite complicated in the light of life’s day-to-day variabilities,” says Family law attorney Peter Stambleck.  “A straightforward implementation of a 70/30 child custody schedule would give the non-custodial parent two overnight visitations per week. This arrangement is imbalanced and not a true form of shared parenting. Clients very rarely agree to a 70/30 custody spilt, unless it is the most appropriate schedule to ensure that they continue to provide a lifestyle that is best for their child.”

Still, the 70/30 may be suitable for co-parents who live far apart or for children who prefer having a consistent home base for much of the week.  As with any parenting plan, the suitability of a 70/30 arrangement depends on how your family’s circumstances affect the realities of day-to-day life.

Stambleck puts it best: “Every family is different, and a child custody agreement needs to address the existing and anticipated needs of the family clearly and specifically. There are many factors to consider, including but not limited to the needs of the children, their ages, each co-parent’s availability, location, and other commitments that may affect the ability to care for the children.”

“Every family is different, and a child custody agreement needs to address the existing and anticipated needs of the family clearly and specifically. There are many factors to consider, including but not limited to the needs of the children, their ages, each co-parent’s availability, location, and other commitments that may affect the ability to care for the children.” - Peter /ste==

What Does a 70/30 Custody Schedule Look Like?

Co-parents with a 70/30 schedule usually split the week with a 5-2 schedule where one co-parent has the child for the school week, and the other takes weekends. Alternatives include swapping every third week or having more frequent exchanges every third day.

Berse describes the 70/30 parenting schedule like this: “A 70/30 parenting schedule involves one parent having two overnights per week (equivalent to 104 overnights per year), while the other parent has five overnights a week (260 overnights per year). Typically, co-parents divide this arrangement where one co-parent has the children during the school week and the other co-parent has them either every other weekend or most weekends (such as three weekends per month or four weekends per month in months with five weekends). Additionally, many co-parents allocate extra time during the summer for the parent with 30% custody.”

“A partial physical custody schedule is often every other weekend from Friday after school until Monday start of school, along with some weekday time,” says Colton. “The time during the week may be an overnight on the non-weekend week or an overnight each week. The weekday time may just be a few hours for dinner.”

Experts recommend mapping out a 70/30 schedule in two-week blocks. Dividing 14 days into a 70/30 split means the co-parent with 70% custody should receive around ten days and nights, and the co-parent with 30% should receive the remaining four days and nights. This approach gives co-parents a broad view of the schedule and allows for easy comparison between 70/30 and other common custody schedules.

For the parent with 30% custody or partial custody, Colton adds that some situations require that time to be supervised. “Where there is an issue with a substance use disorder or untreated mental health issues that cause a risk the child, then there may be a need for supervised custody.” She adds that this may be a temporary solution: “A parent who is addressing issues of substance use disorder and/or untreated mental health problems that are negatively affecting the child may find themselves with a partial physical custody schedule while any safety concerns for the children are being addressed.”

 

70/30 vs. 60/40 Custody Schedules

In a 70/30 custody schedule, one parent has the child about 70% of the time, while the other has them 30%. In a 60/40 plan, one parent has the child 60% of the time, and the other parent has them 40%.

In a 14-day block, a 60/40 custody schedule typically allocates eight days to the co-parent with 60% custody and six days to the co-parent with 40% custody. 60/40 parenting plans often use a 3-4 weekly schedule, alternating custody in four-day and three-day blocks.

On the other hand, a 70/30 split provides the parent with primary custody with significantly more time with the children. Instead of a 3-4 weekly schedule, a 70/30 split typically utilizes a 5-2 split variation.

Berse says co-parents often adopt the 70/30 parenting schedule by necessity, typically due to the work schedules. "A 70/30 schedule is commonplace when it's simply not feasible for one parent to have weekday overnights during the children's school year,” he says. “Co-parents usually adopt this schedule because it's practical.”

70/30 vs. 80/20 Custody Schedules

A 70/30 custody schedule involves one parent having the child 70% of the time while the other parent has them 30% of the time. An 80/20 custody schedule means one parent has the child 80% of the time while the other parent has them 20% of the time.

In a 14-day block, an 80/20 custody schedule allocates 11 days to the co-parent with 80% custody. It is common for co-parents to follow an assigned weekend custody schedule, where the child spends pre-determined weekends each month with the non-custodial co-parent.

In the 80/20 arrangement, the primary custodial parent assumes 80% of the parenting time, representing a 10% increase over the 70/30 plan. The decision between the two plans depends on the co-parents’ circumstances and the child’s best interests.

Factors to Consider When Choosing a 70/30 Parenting Schedule

When choosing a 70/30 parenting schedule, it is crucial to consider significant factors that may affect how the plan works. For example, consider the child's age and needs, the distance between co-parents, the parents’ work schedules, and the level of conflict between co-parents.

A standardized custody agreement won’t accommodate the diverse circumstances and preferences of different families. A personalized approach, where co-parents work together to understand and adapt to specific circumstances, is essential in selecting the right parenting schedule.

Choosing a custody schedule involves multiple factors, which can cause conflicts. For example, co-parents of a young child might lean toward a 5-2 plan to foster regular interactions. However, if they live far apart, implementing a 5-2 schedule can present logistical obstacles. In making these decisions, the child’s well-being must always take precedence.

While there is much to consider when evaluating custody arrangements, here is breakdown of four key factors to consider before choosing 70/30 schedule:

• Child’s age
  The child’s age plays a significant role in determining the time they require with each co-parent. Contemporary attachment theory underscores the crucial influence of secure parent-child relationships on a child's emotional and psychological development. Extensive research consistently highlights the necessity for children to have sufficient and consistent contact with both co-parents to form healthy relationships.
  
  For instance, a seminal review from 2004, Adolescent-parent attachment: Bonds that support healthy development, underscores the importance of secure attachment with both parents. The paper emphasizes that just like in early childhood, secure attachment in adolescence profoundly impacts development, fostering exploration and the development of cognitive, social, and emotional competence. These findings emphasize the significance of maintaining strong bonds with both parents throughout a child's development to support their overall well-being and optimal growth.
  
  A 5-2 schedule or every-third-day plan is the best option for younger children who will benefit from regular interactions with both parents. Teens and pre-teens will likely prefer the 5-2 or every-third-week schedule.

• Physical distance
  The physical distance between co-parents is another crucial factor when deciding between 70/30 custody schedules. The proximity of the co-parents' residences can significantly impact the feasibility of a parenting schedule.
  
  If co-parents live apart, frequent household exchanges can be stressful for the child and co-parents. Depending on the distance, the 5-2 schedule and every-other-week schedules can work. For example, if co-parents live an hour apart or more, even the 5-2 schedule may prove to be too stressful.

• Parent’s work schedule
  Co-parents need to evaluate their work commitments and determine how it aligns with the proposed schedule. Work schedules that involve long hours, frequent travel, or irregular shifts can pose challenges in maintaining a consistent custody arrangement.
  
  For example, if one co-parent has a demanding work schedule during specific, consistent days of the week, the co-parents can shift the schedule so the parenting days fall on days off from work. For example, the 5-2 schedule can work very well if the co-parent with 70% custody has a flexible working week. Then, the co-parent, with a demanding weekly schedule, will have the children on the weekends. Of course, co-parents can change the day that the 5-2 starts to accommodate different or unconventional work schedules.

• Child’s school schedule
  Finally, co-parents should evaluate how a 70/30 schedule will affect their children’s school commitments. During the school year, the 70/30 schedule should promote a consistent routine that allows the child to focus on school and extracurricular activities. For example, every third day schedule doesn’t work well during the school week (unless the co-parents live very close to one another) because the child will have to juggle schoolwork with exchanging households.
  
  Also, co-parents may want to ensure they both can attend school events, parent-teacher conferences, or extracurriculars.
   

How to Pick the Best 70/30 Custody Schedule for Your Family

When selecting a 70/30 schedule, consider your child’s age, the distance between co-parents, work schedules, and school commitments. Be sure to prioritize your child’s well-being, and ask them for input.

Here's a quick checklist of questions to consider when determining if a 70/30 custody schedule would suit your family. Remember that your child's best interests should always be the primary guiding consideration.
 

• Child's age: How old is your child, and what are their specific needs regarding regular interactions and stability?  Will a 70/30 schedule provide sufficient quality time with each parent for your child?
• Child’s well-being: How will a 70/30 schedule affect your child?
• Distance between co-parents: How far apart do you and the other co-parent live? Will frequent exchanges be manageable?
• Work schedules: Do both co-parents have work schedules that allow consistent and reliable parenting time? Are there any irregular shifts or travel involved that could pose challenges?
• Child's school schedule: Will the proposed custody schedule support the child's academic commitments and extracurricular activities? Can both co-parents be available for school events and parent-teacher conferences?
• Level of conflict: How well do you and your co-parent communicate and cooperate? Is there a significant level of conflict that could affect the custody schedule?
• Child's preferences: Have you considered the child's preferences and desires regarding the custody schedule? How involved do they want to be in shaping their own schedule as they grow older?

Easiest Way to Track 70/30 Custody Schedules

Take control of your co-parenting schedule with OurFamilyWizard. This powerful co-parenting app offers comprehensive tools for co-parents looking for an easier way to manage their custody schedule.

“The OurFamilyWizard Calendar feature easily accommodates the 2 out of 7 nights, 70/30 parenting schedule, and also supports custom 70/30 plans,” notes family law attorney Stambleck.

A standout feature is the Trade/Swap™ tool. With just a few clicks, co-parents can easily communicate about schedule adjustments. Trade/Swap helps parents propose a day swap, request a trade in parenting time, and respond to requests from the other parent. When a request is approved, the schedule updates automatically—no need to manually enter adjustments.

OurFamilyWizard’s dedicated platform tailored for co-parents offers a practical solution to enhance and streamline the co-parenting dynamic. With it, you'll experience a newfound level of organization and efficiency in managing your custody schedule.

A note about this article: This is an abridged version of the article which was originally posted on Our Family Wizard. To view the full article, which includes additional resources like schedule examples and templates, click HERE.

A Note on Terminology 

In general, the term “physical custody” refers to which parent a child lives with. Today, many experts use other terms to describe this arrangement, like “parenting schedule” or “parenting time arrangement.” These new terms better represent a relationship and the parent’s responsibilities for their children. But just a heads up: this article uses these older and newer terms interchangeably.  

2023 AAML Arbitration Training Institute

Rochelle B. (“Shelly”) Grossman and Carolyn Zack led the Academy of Matrimonial Lawyers (AAML) 2023 Arbitration Training Institute in Chicago on June 1 and 2, 2023. The Institute planners were Academy Fellows Amy J. Amundsen (Tennessee) and Jennifer Bingham (Massachusetts), co-chairs of the AAML Arbitration Committee, pictured below with Shelly and Carolyn. Judge Robert Childers, a Circuit Court judge, mediator, and AAA-trained arbitrator, served as a guest lecturer and offered guidance on practical, ethical, and jurisdictional issues. PBA Family Law Section member Maris J. Weiner attended and made valuable contributions to the program. The two day in-person training provided 13 hours of CLE credits, including one hour of ethics, and participants received a certificate of training issued by the AAML. Participants also received feedback from their advisors, Academy Fellows with experience as arbitrators, on their draft agreements to arbitrate, interim directives, and arbitration awards. The attendees included more than 30 attorneys from across the country, Fellows and non-Fellows, who engaged in a lively and thoughtful discussion about the benefits of family law arbitration, shared information about their local family law practice and experience, and offered their perspectives on best practices for family law arbitrators. All participants, including Shelly and Carolyn, came away from the program feeling better prepared to tackle complicated arbitration-related issues. An overwhelming theme of the Institute is the need for a more uniform approach to family law arbitration and the adoption of the Uniform Family Law Arbitration Act (UFLAA) throughout the country. Another outcome of the training institute is the demand for more certified arbitrators trained by the AAML, which is the only professional organization training family law arbitrators. If you are interested in attending the AAML Arbitration Training Institute next year, please reach out to Shelly at shelly@pottsshoemaker.com or Carolyn at czack@momjiananderer.com.

By Mary Cushing Doherty, AAML Pennsylvania Fellow | High Swartz

In the case at hand, your client is Dad A in the custody and support matter:  Mr. A v. Mr. Z.  The case involving their 10-year-old daughter.  The parties settled custody issues before Conciliator C.  After the Domestic Relations Office support conference and testimony before the support Hearing Officer a legal issue was raised and referred to Family Court Judge J for a hearing on whether an agreement before Custody Conciliator C is binding in the support case. 

During the Custody Conciliation Dad Z and Dad A agreed that their daughter should return to attend overnight summer camp as she had in prior years.  The agreement on this and other issues was placed on the record before Conciliator C.  Dad A recalls that Conciliator C heard the lawyers state during the Conciliations that the respective cost to each parent would be resolved in support court.  Dad A is furious now because Dad Z (who switched lawyers) is telling the support DRO Officer, and the support Hearing Officer, that he cannot afford to pay his percentage of the overnight summer camp cost.   Dad Z argues he is not bound to contribute to this unreasonably expensive summer camp.  Dad Z asks the court to rule that he should not be bound to contribute anything greater than his share of the cost for their daughter to attend a local day camp.  You argue on behalf of Dad A that Dad Z cannot reopen the issue of the daughter’s reasonable summer camp when it was jointly approved as part of the custody agreement.  You argue both attorneys acknowledged in the Conciliation each parent’s contribution would be determined in support court.  Now Dad Z with his new attorney claims there was never this acknowledgement.

Your client wants Conciliator C to testify that the cost of summer camp was brought to the attention of Dad Z before he signed the custody agreement that addressed selection of overnight summer camp. You study whether you can successfully issue a subpoena to Conciliator C to appear before Judge J.  You start by reviewing 9 Standard Pennsylvania Practice 2d §54.12 that disapproves of eliciting testimony from a judicial officer as well as Pennsylvania Rule of Judicial Administration 1701 that provides no judicial officer pursuant to a subpoena without prior authorization of the Pennsylvania Supreme Court. 

You read Kulesa v. Mindy Harris, et al, 519 Fed Appx (3rd Cir. 2013) in which the federal Third Circuit Court of Appeals found the various court employees in Montgomery County, Pennsylvania (court administrators, prothonotary and Support Master Harris) are entitled to quasi-judicial immunity because they exercised discretionary judgment as part of their function.  Therefore, Support Master Harris could not be sued by a party about her actions in the support matter, and the litigation brought by plaintiff Kulesa was dismissed.

The Pennsylvania Superior Court in Leber v. Stretton (2007 allocatur denied) held questioning a judicial officer as to the knowledge or opinions of judicial officers regarding cases and their judicial function is prohibited.  You discuss the Leber and Kalesa decisions with your client and the client spots footnote 12 in Leber suggests in dicta a distinction between a judge testifying about her/his mental process (where judicial immunity applies) compared with purely factual testimony about what happened.  Arguing Conciliator C will provide purely the factual testimony, Dad A wants the subpoena to issue.

In an unreported decision Zabreski v. von Schmeling, 213 WL 1402324 (M.D. Pa. April 5, 2013), the Superior court rejected this argument based on the dicta in Leber and relied on the conclusion of the Pennsylvania Superior Court in Leber that found questioning a judicial officer about surrounding facts would be contrary to public policy and unacceptable because the conduct occurred during the judicial officer’s participation in a public hearing.

As an advocate you may try to thread this needle claiming you only seek fact testimony as suggested in the Leber dicta (footnote 12).  As counsel for Dad A, you should warn the client that Judge J might raise concerns about the burden on the functioning of the court.  The Zabreski decision advises there may be an appearance of impropriety if it is viewed that the court officer or judge is biased or showing favoritism.  The court has an interest is in facilitating the dispose efficient disposition of family law cases before Conciliators, Hearing Officers and other quasi-judicial court staff.  Therefore, the subpoena may not lead to testimony from Conciliator C.

By Julie Auerbach, AAML Penn Fellow | Astor Weiss Kaplan & Mandel, LLP

In any support case, the practitioner must identify all forms of income that fall within the state’s definition of income for support purposes. Income for support purposes is typically defined differently from income for tax purposes. Different states use different definitions of income. For example, some states include gift and inheritance as income for support purposes while others do not.

Pennsylvania defines income available for support as follows:

"Income." Includes compensation for services, including, but not limited to, wages, salaries, bonuses, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an interest in an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workers' compensation; unemployment compensation; other entitlements to money or lump sum awards, without regard to source, including lottery winnings; income tax refunds; insurance compensation or settlements; awards or verdicts; and any form of payment due to and collectible by an individual regardless of source.

23 Pa.C.S.A. § 4302.

Additionally, there are certain forms of income that may not be expressly included in a state’s statutory definition of income, but are included on the basis of case law.

Disputes often arise as to whether or not certain forms of income should be included in a support calculation. These “tricky” forms of income include phantom income, deferred compensation, business and employment perquisites, income from a trust, gift, or inheritance, and “paper only” deductions on tax returns. There are other forms of income that while may not be difficult to prove, may escape attention from the litigants, such as electronic forms of payments or the income of a spouse or partner as a basis to deviate from the support guidelines.

The first part of this presentation will discuss how to identify and include these tricky forms of income and sometimes overlooked forms of income in a support calculation. The second part of this presentation will discuss best practices in identifying and presenting these forms of income to the court.

Read the full article HERE.

Congratulations to our newest AAML Pennsylvania Fellow, Carolyn Moran Zack, Partner at Momjian Anderer, LLC.

Carolyn is a partner at Momjian Anderer, LLC, where she practices family law in Philadelphia and the surrounding counties. Ms. Zack began her career under the tutelage of Academy Fellow Albert Momjian, Esquire, and was a member of his family law group for fifteen years. She later served as a hearing officer for Chester County Family Court before joining the Momjian Anderer firm. Ms. Zack promotes alternative dispute resolution in family law matters, including writing a book on family Law Arbitration (Family Law Arbitration: Practice, Procedure and Forms (ABA 2020)).

Ms. Zack is the Treasurer of the Pennsylvania Bar Association Family Law Section, a member of the Pennsylvania Supreme Court’s Domestic Relations Procedural Rules Committee, the ABA Family Law and Dispute Resolution Sections, the Doris Jonas Freed Inn of Court, the Philadelphia Bar Association, and an interdisciplinary group of judges, mental health professionals and attorneys who meet regularly to discuss evolving custody issues.

Here is a note from Carolyn on what joining the AAML means to her:

"I have aspired to be a member of the Academy since I started practicing family law in 1987. My mentor, Academy Fellow Albert Momjian, spoke highly about the benefits of the AAML in developing a strong referral network and in providing an opportunity to learn from experienced family lawyers across the country. I look forward to making new friendships and to continuing this lifelong learning journey."

Welcome, Carolyn!

By Amy P. De Shong, AAML Pennsylvania 2022-2023 President | Wisler Pearlstine LLP

Do I need an attorney?

Say you and your spouse want to work amicably toward a low cost divorce outcome. Consulting with an attorney – especially if you do not tell your spouse about it – can feel like a betrayal. Worse, if you do tell your spouse about it, he or she may become angry. (“You promised we wouldn’t lawyer up!”)

Just as you would not sign yourself up for heart surgery without learning about your condition and your options, you should not try to settle with your spouse without having at least one consultation with an experienced family attorney. Your attorney will explain the law and how it applies to your situation. Everything you tell him or her is confidential – even the fact that you were there in the first place! When you learn about your legal rights, obligations, and options – as well as those of your spouse – you will feel the power that can only come from knowledge. There is no substitute for that.

Believe it or not, it’s better for you if your spouse does the same thing.

Can’t we just use the same attorney?

In most jurisdictions, attorneys are prohibited from representing both of you. And that makes sense, once you think about it. A homemaking mom’s goals and incentives differ from those of her husband: an attorney representing mom usually seeks a high level of financial support for as long as possible, while counsel for husband seeks to minimize the support obligation and may offer an increased portion of the marital assets in lieu of sharing her client’s income.

I’ll make the appointment: now what?

Your attorney should spend one to two hours with you. Expect to pay for the meeting. When you contact his or her office, ask whether there is a charge, the amount, whether payment is expected at the meeting, and whether the firm accepts payment by credit card. Think about how you will pay for the appointment if you do not wish for your spouse to know about the meeting. (If you pay with cash, your attorney should give you a written receipt.)

Ask whether you should bring any documents and expect to be asked to bring your last tax return, paystubs for you and your spouse, and a basic outline of your assets and liabilities. Know the amounts of certain monthly bills, such as your mortgage, real estate taxes and homeowners insurance, so that the attorney can run a support calculation. 1 Amy P. De Shong, Esq. adeshong@wispearl.com can run a support calculation. Don’t be afraid if you don’t have all of that stuff – just do the best you can. Bring along a list of all your questions. When you make the call for the appointment, be ready to provide your spouse’s name and employment information, so that the attorney can run a conflict search before you get there. (This is particularly important with larger law firms, where another attorney at the firm may have already met with your spouse or the firm may already represent your spouse’s employer or family members.)

If you and your spouse signed any agreements together, including a Prenuptial Agreement, bring them along. The more information you can supply, the more useful the attorney can be. Most jurisdictions use grids or guidelines in assessing child and spousal support obligations. These are usually based on incomes and/or living expenses of the parties and their kids. If a spouse or child has special needs or unusual expenses, such as medication or therapy, bring that information along.

What will I learn at this meeting?

As long as you bring the necessary information, your attorney should give you an overview of support, custody, and property distribution. The attorney should answer all of your questions and treat you with compassion and respect. Expect to become emotional and maybe even to cry during the meeting.

Your attorney should listen to you, not interrupt you, and not lecture you. Your attorney should be able to speak to you clearly and in plain terms. If he or she bristles at your concerns, is high-handed, or makes your feel stupid, thank him or her for the time and end the meeting. No experienced attorney should be threatened by your questions. At the same time, however, remember that things you may have read about divorce on the Internet or heard from the folks at your neighborhood bar are not always correct.

I have retained an attorney: what’s next?

Your attorney should give you a written summary, often called a fee agreement letter, of exactly how and when you will be billed. Read it carefully and do not sign it if you have questions, concerns, or if you do not understand it. Expect to receive invoices monthly and insist that they set forth detailed charges so that you always know exactly where you stand. If your attorney seems uncomfortable answering your reasonable questions about any charges, that’s a red flag. Tell your attorney how you feel and if he or she is not responsive, it may be time to move on to someone else.

You and your counsel should map out a strategy that meets your goals and concerns. That means that you have to be able to identify and articulate those goals and concerns, at least on a basic level. For example, you may want your attorney to get as much money for you as possible, but without being ugly or combative. Your attorney may point out that those goals conflict if your spouse is hiding money from you. That should prompt a healthy discussion about how far your attorney can go in issuing subpoenas and other legal documents before you will become too uncomfortable. Then, talk about what happens after that.

Similarly, be as clear as you can be about your preferred child custody arrangements. If you are a dad who is just fine with alternating weekends, make sure your lawyer knows that so that he or she does not start demanding equally shared custody on your behalf.

As you go along, keep a file of your notes, all correspondence, all emails, and other papers such as pleadings and financial information. Make sure your attorney and his or her assistants do not send emails and other communications to your workplace, unless you want them to do so. (Think carefully about that, by the way.) Clarify expected response times. (In this age of instant responses, some clients demand instant answers to complex questions -- that's not such a good idea.) Plan your phone calls and email exchanges so that you keep your costs down. When you are anxious and upset, it’s easy to ask the same questions over and over again: if you can take careful notes and then refer back to them when you get upset, rather than calling your attorney, you will save money on legal fees. Talk with your counsel about what you can do on your own to contribute to your case and keep your fees down. For example, you may be able to gather and copy documents, or even to prepare summaries of financial information. Just remember that your attorney must read and understand it all in order to make an effective presentation on your behalf.

Remember that no reputable, experienced family lawyer is threatened by a well-informed client who seeks to reduce his or her legal fees! At the same time, however, if you find that you are constantly second-guessing or questioning your counsel, he or she will begin to feel mistrusted and not respected. If that goes on for too long, the relationship may fail. If you start to feel that things are not going well between you and your attorney, speak up.

If you have to attend any Court or other legal proceedings, your attorney should explain to you exactly what is expected of you, how much time will be involved, and what will likely happen that day. Will you be cooling your heels in the hallway with your spouse while the attorneys speak with the Judge? Will there be any decision that day? Court is not like what we see on TV and in the movies – there is a lot of waiting. Judges have heavy caseloads and they do not always have the time to read the file before we get there. You can arrive eager and ready for action, only to find yourself 15th on a list of 20 cases.

Attorneys are people too.

Sometimes your relationship with your spouse plays out in your relationship with your attorney. The spouse of an aggressive and overbearing spouse retains an aggressive and overbearing attorney. That client gets swept along in an emotionally and financially costly exercise without ever being in control. Because that’s business as usual for that spouse, he or she may not even be aware of it. No personal growth occurs for that client. As a result, he or she may never be able to move beyond the divorce.

Even if your relationship with your counsel is perfect, he or she may head off confidently in directions that you do not want. When that occurs, it’s often because your attorney has grown to care deeply about you and wishes to do whatever it takes to protect your future – sometimes without checking with you first! If you feel that your attorney has raised the battle flag and run headlong into a skirmish that you have no interest in waging, speak up!

While no divorce is ever pleasant, if you have a good relationship with a good attorney and you work as a team, you can expect to come through the process strong, solid, and confident.

Originally published January, 2012.