Pitfalls of Joint Bank Accounts

March 29, 2017

When you find yourself faced with the task of helping an aging parent with their banking and bill paying, making his or her bank account a joint account may seem like the easy answer.  However, there are several pitfalls that you should be aware of before you or your parent takes this step.   To avoid possible unintended consequences from creating multigenerational joint bank accounts, the interests of the aging parent and the entire family might be better served by arranging for the aging parent to grant you a Power of Attorney to assist with financial matters.


Once you place the bank account in joint names, in the eyes of the law, both parties now have full access to the funds in that account.  It does not matter who put the funds into the account, or that the account may have been solely in the name of one of the account owners previously, both joint account holders now have a right to 100% of the account.  A bank would be powerless to stop either of the joint owners from withdrawing all of the funds in the account.


If one of the joint owners has creditors, it would place any assets in the joint account at risk of the collection efforts of the creditor.  This could mean that a parent who places an account in joint names with an adult child could face a situation where that child’s creditors are able to take the funds from that account.  This could happen even if the intention of both was to always treat those funds as the parent’s.


Placing an account in joint names can be considered an improper transfer of assets for Medicaid qualification purposes.  In the event one of the joint owners needs to apply for Medicaid, a transfer of a bank account in to joint names could make them ineligible for Medicaid for a period of time.

Estate Planning

Placing an account in joint names could unintentionally disinherit other beneficiaries.  If a parent places their account in joint names with one child, it will change the distribution of the proceeds of that account when that parent passes away.  That account is no longer governed by the parent’s Will.  If the account contains a large portion of the parent’s estate, this could substantially or completely disinherit other children.  This would result in an unintended disproportionate distribution of their estate.

There is a better way

In order to avoid these problems with joint accounts, you and your loved ones should consider creating a Power of Attorney.  By naming an agent under a Power of Attorney, a parent can give an adult child the ability to assist with banking and finances without changing the ownership of their accounts.

You can contact one of our Estate Planning attorneys, to assist you or your loved ones with establishing a Power of Attorney. If you have any questions, please contact us at 215-345-8888 or via email at main@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Philly.com Names High Swartz LLP a Winner of the Delaware Valley 2017 Top Workplaces Award

NORRISTOWN, Pa. (March 26, 2017)  – High Swartz LLP has been awarded a 2017 Top Workplaces honor by Philly.com. The Top Workplaces lists are based solely on the results of an employee feedback survey administered by WorkplaceDynamics, LLC, a leading research firm that specializes in organizational health and workplace improvement. Several aspects of workplace culture were measured, including Alignment, Execution, and Connection, just to name a few.

“The Top Workplaces award is not a popularity contest. And oftentimes, people assume it’s all about fancy perks and benefits.” says Doug Claffey, CEO of WorkplaceDynamics. “But to be a Top Workplace, organizations must meet our strict standards for organizational health. And who better to ask about work life than the people who live the culture every day—the employees. Time and time again, our research has proven that what’s most important to them is a strong belief in where the organization is headed, how it’s going to get there, and the feeling that everyone is in it together. Claffey adds, “Without this sense of connection, an organization doesn’t have a shot at being named a Top Workplace.”

“We are honored to be named a Top Workplace” said Joel D. Rosen, Managing Partner. “ We would like to thank all our employees for making High Swartz the best place to work. We recognize that our firm’s success relies on its ability to attract and maintain talented professionals by creating a workplace where they can flourish in their careers, their family lives, and their communities.”


About High Swartz LLP

High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.

About WorkplaceDynamics, LLC

Headquartered in Exton, PA, WorkplaceDynamics specializes in employee feedback surveys and workplace improvement. This year alone, more than two million employees in over 6,000 organizations will participate in the Top Workplaces™ campaign—a program it conducts in partnership with more than 40 prestigious media partners across the United States. Workplace Dynamics also provides consulting services to improve employee engagement and organizational health. WorkplaceDynamics is a founding B Corporation member, a coalition of organizations that are leading a global movement to redefine success in business by offering a positive vision of a better way to do business.

Purchasing a Condominium Unit in Pennsylvania: What to Look For

March 22, 2017

By Arnold Heller

Purchasing a unit in a condominium is not the same as purchasing a single family, detached house. When purchasing a newly constructed or to be constructed condominium unit in Pennsylvania, there are certain matters that purchasers should be aware of. A few of those are listed below.

New Unit Purchases

Unless you are buying the most expensive and largest unit in the community, the ability to negotiate the actual terms of the community documents (i.e., the Declaration, Bylaws, or Rules and Regulations) is slim indeed. However, within those documents, things to look out for include:

  • How are the percentages of liability for payment of common expense assessments determined? Do they vary from unit to unit? Are they based on size (square footage), or on some arbitrary basis that has no relationship to the value of a particular unit?
  • Has the declarant/developer reserved the right to add or withdraw real estate? If real estate can be added, are there assurances that it will be developed in a manner that is compatible with the existing development? If real estate can be withdrawn, what effect might this have on the liability of existing units for expenses related to amenities (such as pools) that were intended for a larger community?
  • How many phases of development are there? Are you looking at the first phase? Last phase?
  • Are units restricted to residential use?
  • Are there adequate and fair leasing restrictions? Many purchasers who are buying their primary residence prefer to have some restrictions on leasing.

Developer/declarants are required to provide public offering statements (POS) to prospective purchasers that contain detailed information about the condominium. A purchaser can cancel an agreement of sale within 15 days after receiving the POS or any amendment to the POS which would have a material and adverse effect on the rights or obligations of the buyer.  Purchasers should pay particular attention to the budget portion of the POS. Although these may be difficult to interpret, a high percentage of management fees to the remainder of the budget or a lack of provision for reserves may be warning signs. While comparisons may be difficult, an experienced broker may be able to provide insight.

Resales of Units

A buyer is entitled to what is termed (for condos) a "3407 certificate" which contains much the same information as is set forth in the initial public offering statement, updated to show the current status of the unit and the association in general. An agreement of sale is voidable for five days after the certificate is provided or until conveyance, whichever first occurs. The information must be complete; if it is not, the five day period would run from the time that complete information is provided.

With respect to the governing documents, many of the same considerations as those listed above apply.

Among the most important items within the 3407 certificate are the current budget, the most recent balance sheet for the association, any capital expenditures proposed by the association, the amount of common expense assessments against the unit in question, and a statement of any unpaid common expense assessments with respect to such unit.

Check to determine whether the project is professionally managed.

Check to determine whether the condominium association has a right of first refusal with respect to the unit (not a common requirement in condos of more recent vintage).

It is not a bad idea to ask other unit owners about their experiences. One common problem seems to be leakage of water into condo units, which inevitably leads to disagreement between the association and the affected unit owner as to what needs to be repaired and who is responsible to pay for it.


Make certain that the unit is correctly described in the deed. Ask the title company for help if you have doubts.

Get a "3315(g)" certificate from the association showing no unpaid assessments against the unit (overlaps somewhat with the 3407 certificate mentioned above, but a buyer is entitled to it and it is recordable).

Get a condo endorsement from the title insurer (#810 for a condo).


There are many factors to consider when purchasing a condominium unit. A professional real estate agent or an attorney can help you to navigate through those issues.

If you have any questions about real estate transactions, please contact Arnold Heller at 610-275-0700 or via email at aheller@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

If you have children and you are getting married, you need a premarital agreement. Why not make it Romantic?

March 15, 2017

By Mary Cushing Doherty

When a couple is marrying, if either fiancé is a single parent or divorcee, friends may suggest  they sign a prenuptial agreement.  A premarital agreement need not be a divorce plan. The quick brushoff that this suggestion is offensive could be misplaced.  Why not write a prenuptial agreement that is romantic?  It could be an acknowledgement of the couple’s commitment to their life together, including the role of children of a prior relationship.  The strains of marriage and remarriage are complicated by children, and more complicated when the children belong to one spouse.  A romantic premarital agreement will acknowledge that the couple has talked about their finances, their values, their priorities for each other and their priorities for their children.  This level of communication will bode well for a solid, strong marriage that will withstand future challenges.

One key feature of a premarital agreement could be the commitment by one spouse to forego the certain claims as the surviving spouse when the parent of the child or children dies.  The couple needs to balance their financial priorities and anticipate future savings before they marry.  By way of example, the couple could agree that savings in a 529 account intended to fund a child or children’s education will not be part of the decedent’s estate which is otherwise subject to the surviving spouse’s claims. On the other hand, the couple may opt to commit certain funds will be jointly saved to assure a survivor interest to the other spouse despite the needs of the children brought to the marriage.

Should problems arise during the marriage, the couple that addressed the needs of the children of the one spouse before the marriage, in advance of their wedding vows, will be better equipped to deal with those issues during times of economic stress.  Taking the opportunity to prioritize and verbalize both spouses assumptions may lessen the need for problem-solving later. If the marriage sadly fails, the memorialization of the intentions of the parties going into the marriage in their  premarital agreement, will save heartache and legal fees if they separate.  Likewise, the happily married couple that remain married “ until death do us part” will have clarified in their premarital agreement their expectations for the treatment of their finances when the first spouse dies.  Older children of a marrying couple may be skeptical of Mom’s or Dad’s decision to re-marry. Often children fear they  will lose out in the end despite Mom’s or Dad’s assurance that “Everything will be fine”.  Adult children who know their parents thought through their goals, sought advice of professionals, and made informed decisions, will have less reason to be concerned.

The premarital agreement, is a good planning tool to avoid problems later. A romantic premarital agreement may be the vehicle to strengthen the commitment based on shared values and communication.

To learn more about a romantic premarital agreement see the full article written by Mary Cushing Doherty at https://highswartz.com/blog/family-law/romantic-premarital-agreements-solving-planning-issues-without-d-word/. If you have any questions, please contact Mary Cushing Doherty at 610-275-0700 or via email at mdoherty@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Romantic Premarital Agreements: Solving the Planning Issues Without “The D Word”

March 10, 2017

By Mary Cushing Doherty

This post originally appeared in the Journal of the AAML, Vol. 29, No. 1, 2016.


When a couple is planning to marry, either or both may be urged by friends, family, a financial advisor and/or business partner to consult an attorney to prepare a premarital agreement. For many hopeful prospective brides and grooms, the suggestion is immediately rejected.  They will not consider a premarital agreement in contemplation of “The D Word.”  They abhor the thought of reading a premarital agreement with detailed provisions and limitations on rights and interests in event of divorce.  They recoil from even thinking about problems during their marriage.  Yet addressing their shared plans could be practical and could strengthen their commitment.  In some cases one fiancé wants to protect certain interests and is unaware of options that will satisfy planning needs without mentioning divorce. The couple or fiancé may welcome suggestions and options without using the D word in premarital documents.

The lawyer needs to anticipate and address a wide range of motivations.  The lawyer needs to study the primary goals of the client and reasons for the premarital plan.  A client may instruct counsel that the word “divorce” shall not be in a premarital agreement for religious or emotional reasons.  In some cases the fiancé will want some language to address economic concerns that the couple may share or concerns raised by insistent third parties. The lawyer may recommend a unilateral document be drafted, such as a trust signed by one fiancé to provide for premarital planning without involving the other spouse.  In other situations, a fairly limited premarital agreements could be drafted to address special planning needs.  Premarital plans can be made that do not mention divorce, but will actually be protective of the client if marital problems lead to a divorce.

The first section of this article will describe criteria for a premarital agreement under the Uniform Premarital and Marital Agreements Act including meeting the requirements of the jurisdiction at time of marriage, and considering the risks if a divorce occurs in another jurisdiction and the premarital agreement is subject to challenge.  The second section addresses terms of premarital agreements that are respectful of religious restrictions on a premarital agreement and address a range of economic plans without mentioning divorce.  The third section describes how one spouse avoids the prospect of a premarital agreement by placing premarital assets in an irrevocable settlor trust, a Domestic Asset Protection Trust.


A. Requirements at Execution; Challenges in a Different Jurisdiction at Divorce

The Uniform Premarital and Marital Agreements Act (UPMAA, or the Act) drafted by the National Conference of Commissioners on Uniform State Laws, was approved and recommended for enactment in all states at the July, 2012 Annual Conference and published January 2, 2013.  The UPMAA provides model legislation for premarital (and marital) agreements. The Act states in its definitional section:

“Premarital Agreement” means an agreement between individuals who intend to marry which affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or non-occurrence of any other event.[1]

The Comment to the definitions notes that while most premarital agreements will be stand-alone documents, a fragment of a writing that deals primarily with other topics could also constitute a premarital agreement for the purpose of the act.[2]

Lawyers advising clients due to marry need to caution clients that the jurisdiction at time of dissolution could affect which state’s law will be applied when the premarital agreement is interpreted. In its section regarding what law governs, the UPMAA provides:

The validity, enforceability, interpretation and construction of a premarital agreement or marital agreement are determined:

(1) by the law of the jurisdiction designated in the agreement if the jurisdiction has a significant relationship to the agreement or either party and the designated law is not contrary to a fundamental public policy of this state; or

(2) absent an effective designation described in Paragraph (1), by the law of this state, including the choice-of-law rules of this state.[3]

Whenever an attorney drafts a premarital agreement, the attorney should give advice regarding to the possible problems with enforcement based on where the parties move and reside thereafter.

When the premarital agreement is drafted the client will want assurance that the agreement will be enforced regardless of where the parties ultimately reside.[4]  Most states require consideration (often simply the occurrence of the marriage), access to independent legal representation, voluntary execution, and disclosure of finances.  While many states require the agreement not be unconscionable or in violation of public policy, these requirements are not universal.[5]  And in some states, fairness is measured at execution, others at enforcement.[6]

In a state like Pennsylvania, current law clearly favors the enforceability of a premarital agreement as long as full and fair disclosure is provided[7] or specifically waived.[8]  Pennsylvania caselaw applies the same principals to both premarital and marital agreements.  The Divorce Code[9] allows a party to waive economic disclosure in a divorce agreement and caselaw applies this principal to premarital agreements.[10] When a fiancé had possession of her engagement ring, grossly overvalued in the premarital agreement, it was found she and had adequate opportunity to verify its value and could not claim fraudulent misrepresentation in the premarital agreement.[11]  Other state laws have more rigorous requirements: giving significant power to the reviewing court to refuse to enforce where the court deems the terms to have been unconscionable; to refuse enforcement where it is deemed to create a substantial hardship for a party; to find material change in circumstances arising after the agreement was signed.  Under the enforcement provisions of the UPMAA, the enacting state can select among optional clauses that the court may refuse to enforce a term of a premarital agreement if it finds the term was unconscionable at time of signing.  And a further optional provision allows a find of substantial hardship at enforcement due to marital change of circumstances.[12]

In a state protective of the agreement, like Pennsylvania, these factors, unconscionability and financial hardship, are irrelevant.[13]  In states where the reviewing judge has the discretion to decide on unconscionability or substantial hardship, even if the couple agreed Pennsylvania law would be the governing law, the reviewing court could determine the premarital agreement is contrary to a fundamental public policy of the reviewing state.  To avoid such challenge, the parties may be well advised to address the likely financial circumstances should not appear to  risk of finding unconscionability (for example, force a former spouse to become a public charge).[14]

The client who seeks premarital planning without mentioning divorce in the document may well turn against counsel later if the lawyer did not anticipate that unhappy prospect of divorce.  A client who does not want to mention “The D Word” may still instruct counsel to draft protective provisions, just in case the marriage fails.  Under the UPMMAA financial disclosure will be required for economic terms.  It is the responsibility of the lawyer to caution the client as to the risk that the reviewing court, different from the state of execution and the stated choice of law, will scrutinize a premarital agreement.  A plan that may pass muster in the execution state could be upended in the reviewing state.  In most cases if the agreement doesn’t specify consequences for divorce, the likelihood of unfairness, unconscionability and violation of public policy, will likely be diminished.  Hereafter are suggested clauses for a premarital sans the “D” word.

B. Premarital Agreements with a Catholic Fiancé or Couple

An astute lawyer will identify issues when a fiancé has a conservative religious or cultural background that does not allow a pre-marriage contract that contemplates divorce.  For example, the intended groom talks to an attorney about preparing a pre-nuptial agreement because his family wants the old family money to be protected in the event the parties divorce.  When introductory matters are reviewed, such as the place of the wedding, the attorney discovers that the bride-to-be is planning a Catholic wedding service.  The attorney ought to tell the groom that his Catholic bride may well refuse to sign a pre-nuptial agreement describing the consequences of divorce.  The groom may refuse to pay for the lawyer’s time to draft a document that will be unacceptable to his Roman Catholic fiancé.

The Code of Canon Law provides: “A marriage subject to a condition about the future cannot be contracted validly.[15]  To provide in a premarital agreement that Wife will marry Husband if there are specific rights or waivers in event of divorce clearly presents a condition precedent to the sacrament of marriage.  The Canons of the Catholic Church reaffirm the lifetime sacramental commitment of the spouses.[16]  Premarital agreements are not expressly prohibited and can legitimately be executed by a Catholic spouse.  A typical example addresses the interests of a widow who is already a parent.  Defining separate property to protect inheritance interests of each spouse’s children.[17]  The priest officiating the wedding may require any premarital agreement be sent to the Catholic diocese’ Department for Canon and Civil Law Services for evaluation to determine if the agreement would render the marriage invalid.[18]

Lawyers represent clients from many different religious backgrounds and it is the lawyer’s responsibility to understand the basic religious principles that affect the negotiation and drafting of a premarital agreement.  Since the Roman Catholic annulment proceeds under Canon law which requires the church’s tribunal to determine whether the marriage was entered into validly or invalidly ab initio.  The tribunal will analyze whether one or both parties failed to validly, i.e. was it subject to a condition about the future.[19]  Logically one way to establish a basis for Catholic annulment is for the tribunal to find that the marriage was invalid from the beginning.  Other listed impediments to a valid sacramental marriage under Canon law addresses incapability to contract, ignorance of permanent partnership, description, etc.[20]

In many ways the Roman Catholic Marriage, subject to the Canons reflects a religious premarital agreement in the typical vow to love, honor and obey, until death do us part.  In comparison, both Judaism and Islam also have premarital agreements as part of the marriage.  The Jewish ketubah, an integral part of a Jewish marriage contemplates the grooms responsibility to his bride, including the jurisdiction of the Bet Din (Jewish house of judgment) in the event of death.  Under Jewish law, however, the Husband decides whether to give his Wife a get (Jewish divorce); and the Husband must act without constraint of his own free will.  So the Jewish tradition allows the Husband to control whether a Wife divorced civilly, will receive a religious divorce.[21]  New York State legislature enacted the Get Statute[22] requires divorcing parties in a religious ceremony to lift religious barriers to remarriage.  If Jewish law provides a coerced get is not valid, New York law appears to create an inherent conflict if a Husband does not choose to file for a get.[23]

In the Islamic tradition, marriage is a contractual arrangement devoid of sacramental significance.[24]  The Islamic contract (mahr) is negotiated on behalf of the Wife by her Father, which includes payment of a dower at marriage and deferred dower paid in the event of death or divorce.  If the Wife seeks a divorce she may be required to repay the mahr paid at marriage.[25]  The mahr may provide for a nominal or astronomic payment by Husband to Wife in the event of his death or decision to divorce.  In the United States some jurisdictions ignore the prenuptial agreement for payment of the mahr and apply civil law; others treat the mahr as a prenuptial agreement that limits payment to the designated amount, even if it is a token amount which by civil standards may be extremely nominal.[26]  Indeed, Islamic law addresses the parties’ expectations for divorce at the time they plan their marriage.[27]

C. Specific Premarital Clauses not in Contemplation of Divorce

Regardless if the motivation is personal, moral or religious, a premarital agreement can address specific or generalized financial plans of a couple without mentioning divorce.  While a Catholic fiancé should not sign a premarital agreement contemplating divorce, communication, finances, lifestyle decisions (typical Pre-Cana topics) can lead to a healthy marriage or stronger commitment.  Psychologically healthy people should be willing to address their expectations which can increase the chance of a successful marriage.[28]

  1. Payment of Premarital Debt

A couple wants a premarital agreement because parents of the bride are concerned about the infusion of premarital funds to elevate the parties’ lifestyle during marriage.  A bride-to-be who has received money from loved ones to give her an enhanced economic start in life plans to use those funds once married to benefit the couple.  She is marrying her true love who is deeply in debt.  As they make their wedding plans, they discuss using her reserved funds to pay off the groom’s debt.  The two of them want to qualify for a mortgage and purchase their first home.  Her family does not want her contributing her premarital money, particularly that which was funded by other family members.  The bride’s family arranges for an attorney consultation, and is monitoring very closely whether or not their daughter is “cooperating.”  Ethically, the lawyer for the daughter represents her interests, not her parents who may be paying the legal fees.  The daughter instructs her attorney: “You may not mention divorce in our agreement, or I won’t sign.”

Under such circumstances, the scrivener will draft without The D Word.  The lawyer advises that the bride’s money, which will be used to pay off the groom’s debt, will be the subject of a loan, with repayment over time.  Accordingly a detailed Promissory Note is prepared acknowledging the groom’s premarital debt will be paid with the bride’s premarital assets.  The Note should state an interest rate, so one is not imputed.  The Note will provide the bride has the option to enforce the periodic payment on the Note, to extend the repayment schedule with interest, or to release the groom from payments by periodic gifts.  One can envision if the marriage goes well, the forgiveness of the periodic obligation of the husband; such gifts should be formalized in writing when the bride affirmatively waives one or more of the periodic payments. This required formality will better protect the bride.  The repayment of the obligation will have nothing to do with the parties’ marital status.  Consequently, the obligation continues regardless of death, separation, or divorce.  The Note will provide effective, but limited, protection addressing the designated assets and liabilities, specifically the funds utilized to pay the groom’s separate debt, using the bride’s premarital assets.  The document need not reference divorce or separation.

  1. Waiver of Interest in Premarital Businesses or Other Designated Assets

 The waiver of interest in one or more assets by agreement, without mentioning separation or divorce, will require negotiations like a typical premarital agreement.  Any agreement should be based on full and fair disclosure of the asset in question.  If the bride is a business owner and her partners demand she sign a premarital agreement to protect the business from a possible divorce, the bride will ask the groom to disclaim any interest in her business forever, (regardless of marital bliss or strife).  The agreement should clearly provide for financial disclosure.  A Confidentiality Agreement signed by the groom will protect proprietary information.  The groom should have access to business books and records.  If he opts to forgo review, a waiver should be signed.  The agreement will more likely pass a fairness challenge if the groom receives specified economic benefits in return.  For example, the parties agree to the joint use of income from the business for marital bills and asset acquisition.  With independent representation for the husband and acknowledgement of adequate consideration, the terms are more likely enforceable. The couple has to decide if such terms satisfy their needs legally, and the agreement coupled with the commitment to marriage need not refer to separation or divorce.  The waiver of interest applies regardless of marital status.  The lawyer should advise the parties of the rights and responsibilities in the event of divorce, and the risk of divorce even though the agreement makes no mention of divorce.

  1. Real Estate Agreements

Often premarital agreements focus on one party’s residence, which is expected to become the joint residence after marriage.  By signing an agreement about use and shared occupation of the residence, clearly identified and valued, the parties can address various scenarios, without referencing divorce.  In most states the premarital value of a separately owned asset (or liability) is by definition non-marital; therefore, the any agreement noting the asset value(s) sets a baseline upon which a court could later rely in the event of a marital separation.

An agreement addressing the house may provide that if the bride owned the house before marriage, she will continue to own the house with no claim by the groom.  If the groom intends to move into the house and contribute toward the mortgage payments and other expenses, the parties could acknowledge this and go several steps further.  The parties can agree the groom will acquire an equitable interest limited to the increase in value after the agreed date of marriage value.  The agreement could provide that the groom’s interest in any jointly titled house would be a minority interest or no interest at all.  Such terms do not provide for the extensive protection possible with a premarital agreement that addresses separation and divorce, but they reduce controversy over the claim to a premarital home.

Often when couples re-marry, the marital home, will eventually pass to the owner’s children.  An agreement should be drawn anticipating consequences if the owner becomes too ill to remain in the home or dies.  If the owner reaches an agreement with her fiancé, this communication before the marriage will avoid problems with children later.  If the owner becomes ill or dies, the premarital agreement provides a clear message to children about the owner’s wishes as well as financial plan to preserve the children’s interest in the home.  And if possession passes to the non-owner spouse after disability or death of the owner spouse, the obligation to support the home can be clearly outlined in the premarital agreement .


 All assets owned by a fiancé in her or his name alone, or with someone other than the intended spouse, should be carefully described and disclosed if the parties sign a premarital agreement. While clear waiver of disclosure of premarital assets may be sufficient to uphold the enforcement of a premarital agreement,.[29] this is surely risky if a reviewing court finds the failure to disclose, even if waived is contrary to public policy and refuses to enforce premarital agreement terms. Premarital assets which are by definition non-marital, often have an impact on the equitable distribution of the marital estate.  In some states the increase in value of the premarital assets create a marital value acquired during the marriage.[30] A reviewing court may determine non-marital assets generate income available to pay child support, spousal maintenance and post-divorce alimony. [31]

Many premarital agreements involve the economically superior fiancé asking the other spouse (who may or may not have their own resources) to waive any claim or interest to the premarital assets and to further waive rights that may be available in the event of death or divorce relative to the premarital estate, including income generated, assets acquired in exchange and the increase in value of the premarital assets.  The economically superior fiancé who does not want to disclose premarital assets; does not want to seek a waiver of disclosure; fears the risk of waiver being overturned by a reviewing court; or does not want to broach the topic of any premarital agreement signed by the fiancé has an option which counsel can propose which involves no disclosure to or a mutual agreement with one’s fiancé.

A Domestic Asset Protection Trust (DAPT) is available in sixteen state: Alaska, Colorado, Delaware, Hawaii. Mississippi, Missouri, Nevada, New Hampshire, Ohio, Oklahoma. Rhode Island, South Dakota, Tennessee, Utah, Virginia and Wyoming [32]   In DAPT states an irrevocable self-settled trust provides specified latitude and access to funds by the settlor as a discretionary beneficiary. Assets put in trust before the wedding can keep those assets outside the marital estate because they are no longer owned by the grantor.[33]  Such funds are placed in trust, without disclosure to or consultation with the fiancé.  No mutual premarital agreement is signed; thus, the full and fair disclosure requirement (or waiver) is not applicable.

Domestic Asset Protection Trust laws are often modeled after Delaware legislation first passed in 1997’  A DAPT is available under South Dakota law and it’s provisions are touted as top-rated DAPT state for protecting the interests of the grantor.  The DAPT features in Delaware and South Dakota are outlined below.

Delaware’s Qualified Dispositions in Trust Act[34] defines the Trust Instrument as one that provides that the interests of the transferor (or other beneficiary) may not be transferred, assigned, pledged or mortgaged, whether voluntarily or involuntarily, before the qualified trustees actually distribute the property or the income therefrom to the beneficiary.[35]  At least one of the trustees must be qualified, defined as a resident of Delaware or an institution (bank or trust company) which is qualified to do business in Delaware.  The Delaware qualified trustee must be in control of some of the property, as well as maintain records, arrange for preparation f the trust’s fiduciary income tax return, participate in administration, etc.[36]  The Trust Instrument must specifically incorporate Delaware law and provide an irrevocable spendthrift clause.  Irrevocability will not be violated if the grantor receives income and in specified situations distribution of principle, so long as within the discretion of the trustee is set forth in the trust.[37]

The recourse of a creditor is generally limited to those whose claims arose before the disposition of the assets into the trust.  The legislation provides a limited option for a creditor whose claim arose post-funding, like a spouse who married after the trust was funded.  The creditor will only succeed in cancelling the disposition into trust of the creditor can prove the funding was done with actual intent to defraud, which claim must be filed within 4 years of the disposition of the subject property into trust.[38]

The South Dakota law allowing a Domestic Asset Protection Trusts (DAPT) uses this directed trust model to create a legal framework so trustees and beneficiaries (including the grantor) work with asset managers and independent trust companies of their choosing.[39]  The settlor may appoint the qualified trustees as trust advisor, an administrative trustee (distinct from the trust advisor), and an investment trustee/committee, with parallel requirements to those in Delaware law.[40]  The investment trustee/committee may select outside investment advisors and/or managers to manage the trust investments.  Every trustee need not be qualified under the statute.  A settlor may provide  input under the terms of the trust, but does not serve as a co-trustee.
The South Dakota DAPT, as in Delaware, allows the settlor to receive financial benefits from the trust, including income and discretionary principal distributions.  While the assets are protected from creditor claims and lawsuits, the directed trust structure allows control over the investment management function.  Distinct from Delaware, under South Dakota law, there is only a two year “look-back” Therefore someone (like a fiancé) who becomes a creditor subsequent to the transfer of property into trust, much make a clear and convincing challenge under South Dakota’s Voidable Transactions Act, within two years after the transfer is made.[41]

The fiancé who puts premarital assets into a Domestic Asset Protection Trust does so outside the disclosure requirements of premarital agreement statutes and therefore without the responsibility of disclosure. In a marriage that crumbles, one can anticipate that the reviewing jurisdiction’s voidable transfer statute[42] will be invoked.  The divorce court may seek to identify DAPT assets to address the needs of a dependent spouse or minor children who are not enjoying the benefits available to the settlor as noted by Linda Lea Viken in her presentation at the American Association of Matrimonial Lawyers.[43]  In South Dakota, however, after the two-year lookback has elapsed, the South Dakota courts will refuse to require the DAPT trustees to respond to discovery.[44]

In light of the caselaw that developed surrounding challenges to premarital agreements, counsel for the client funding a DAPT will want to review the protections afforded by the Uniform Voidable Conveyances Act (UVCA).[45]  Voidable transactions relating to future creditors are those made with actual intent to defraud the creditor, which is rarely proven without direct evidence under the totality of the circumstances. While the creditor need not show proof by clear and convincing evidence (traditionally associated with fraud claims), the burden rests with the creditor.[46]  Creditors under UVCA can seek to show constructive fraud, under one of two tests: first, where the debtor is about to engage in a business or transaction for which remaining assets of the debtor were unreasonably small in relation to the business or transaction; or second, where a debtor reasonably should have believed the debtor would incur debts beyond the debtor’s ability to pay such as they came due. Neither test permits proof of fraud by hindsight.[47]  It strains the imagination to think marriage is a one of the transactions or businesses to which this analysis of constructive fraud would apply.

When counselling the client, the lawyer should explain out the Conflict of Laws issue discussed above (in the  context of a premarital agreements) will be relevant in cases of a DAPT.  Will the reviewing state be willing to apply the law of the DAPT jurisdiction; will the reviewing jurisdiction give Full Faith and Credit to the DAPT state if the reviewing state finds a DAPT is contrary to public policy?  Will a reviewing state that allows statutory exemptions (common for child support and in some cases alimony) supersede the DAPT protections for the obligor?  One can imagine the litigation over voidable transactions proof particularly within the lookback windows: two years for South Dakota or four years for a  Delaware DAPT.[48]

A Domestic Asset Protection Trust executed before the marriage allows the financially secure spouse to avoid uncomfortable and perhaps confrontational conversations before the marriage.  In order to claim a voidable conveyance, the spouse  must claim the transfer to the DAPT pre-marriage was a voidable transfer and raise the claim with the applicable statute of limitations; for example, within two years of funding in South Dakota, or within four years in Delaware.  The trust is designed to preclude consideration of assets put in trust from being treated as part of the marital estate.  Control in a DAPT situation is curtailed by the terms of the trust; however DAPT legislation is designed to allow trust terms allowing the grantor beneficiary certain have directive input.

It is easy to envision cases in which business partners and family members (and others who seek to exclude involvement of the new spouse with assets currently owned by the bride/groom to be) will promote the use of the Domestic Asset Protection Trust.  Couples marrying in their later years who have children of a prior marriage that ended in death or divorce could address the concerns of family members and loved ones by creating the Domestic Asset Protection Trust before embarking on the new marriage.


Premarital planning based on communication can be used to strengthen partnership before marriage.  If a fiancé does not want to talk about premarital planning, a Domestic Asset Protection Trust or other trust vehicle could be formed before the marriage to secure the separate interests of one party.  A limited purpose premarital agreement that provides some protections without mentioning divorce can be drafted.  A practical lawyer will draft an agreement to best protect the couple in the event of divorce, without reciting the possibility of divorce.

In American society fewer couples are making the commitment to marry, and more young people are growing up in families where their parents have divorced.[49]  While most lawyers encourage a client to write a premarital agreement that addresses divorce, a couple will benefit from recognizing the need to make a financial plan albeit without The D Word.  Couples who want to enter the marriage recognizing each other’s financial position and financial priorities, can work with lawyers to prepare a premarital agreement, without The D Word.  The dialog will allow the parties to talk about finances in a mature, logical and constructive way.  It would be better to discuss financial issues before the marriage than to enter the marriage starry-eyed and fumble along making financial mistakes that eventually cause turmoil.  Talking about their finances, their plans and their priorities before they marry could well be the ticket to a successful partnership, marriage and the prospect of a strong and healthy marriage.  In the case of a spouse using a DAPT to assure pre-marital asserts remain non-marital, one may opt to disclose such to avoid the specter of challenges later that the funding of the trust was a voidable transaction.  While starting a discussion of finances can be difficult and sometimes disruptive as a couple plan their marriage, there is also likelihood that the premarital planning will become a great testing ground for the couple’s ability to talk about tough issues and find a solution that makes sense for both of them throughout their marriage.

1] Unif. Premarital & Marital Agreement Act § 2 (2015)

[2] Unif. Premarital & Marital Agreement Act § 2 (2015)

[3] Unif. Premarital & Marital Agreement Act § 4 (2015)

[4] Joan F. Kessler, Can You Choose the Law to Govern your Marital Agreement, 8 J AM, A CAD MATRIMONIAL LAW, 107 (1992)

[5] Kessler at 112

[6] Kessler at 114-115

[7] Simeone v. Simeone, 581 A.2d 162 (Pa. 1990); Karkaria v. Karkaria, 592 A.2d 64 (Pa. Super. 1991)

[8]  Lugg v. Lugg, 64 A.3d 1109 (Pa. Super. 2013)

[9] 23 Pa.C.S.§3106(a)(2)(ii)

[10] Lugg, 64 A.3d 1109 at ______

[11] Porreco v. Porreco, 811 A.2d 566 (Pa. 2002)

[12] Unif. Premarital & Marital Agreement Act § 9(f) (2015)

[13] Colonna v. Colonna, 791 A.2d 353 (Pa. Super. 2001)

[14] Kessler at 122

[15] Can. 1102 §1

[16] Foster, Cherly I, When a Prenup & Religious Principles Collide, 33-WTR Fam Advoc 34, 35.

[17] Doyle, Ken, askfatherdoyle@gmail.com, posted November 17, 2011

[18] Foster at 35

[19] Can. 1102 §1

[20] Can. 1095, 1096 §1, 1098

[21] Traum, Lara, How Mediating Halakhic Prenuptial Agreements Honors Jewish and American Law and Builds Happy Families, 17 Cardozo J, Conflict Resol 179

[22] N.Y. Dom. Rel. Law §236B (McKinney Supp 1993)

[23] Traum at 186

[24] Foster at 36 citing

[25] Wilson, Robin Fretwell, Privatizing Family Law in the Name of Religion, 18 Wm. & Mary Bill Rts J. 925 (2010), at 929

[26] (to be provided)

[27] Al-Hibri, Azizah Y, Symposium on Religious law, 16 Loy L.A.INt’l & Comp. L.J. 22 (1993) at 69

[28] Poliacoff, Jerome H., What Does Love Have to Do With It., 33-WTR Fam Advoc. 12, 15.

[29] Lugg, supra

[30] PA law

[31] PA statute

[32] Shaftel, David G., ACTEC Comparison of the Domestic Asset Protections Trust Statutes, Updated Through September, 2015)

[33] Metric, Marc & Worthington, Daniel G., Domestic Asset Protections Trusts: Which Jurisdictions Are the Most Effective to Set Up this Powerful Tool?, Trust and Estates Magazine, January, 2013a

[34] 71 Del Laws c.159 Sections 1; 12 Del. C. Sections 3570-3576

[35] 12 Del. C. Section 3507, (11) c.

[36] 12 Del. C. Section 3570 (8)

[37] 12 Del. C. Section 3570 (11)

[38] Section 3574

[39] Warren, David A, Use of Asset Protections Trusts in Lieu of or in Conjunction with Prenuptial Agreements, Bridgeford Trust Company

[40] The criteria in South Dakota for establishing a DAPT are:

(i)         The DAPT trust must be irrevocable;

(ii)        A trustee must be appointed with the discretion to administer the trust and make discretionary distributions;

(iii)       A trustee must be appointed that is a resident of the jurisdiction in which the trust is formed;

(iv)       The trust must contain a spendthrift clause, which restricts the transferability of a beneficiary’s interest in the trust property, whether involuntary, before the trustee actually distributes the property to the beneficiary;

(vi)       The trust must be properly administered in accordance with trust language and applicable state laws; and

(vii)      Proper trust administration, accounting, and record keeping are essential for protection of assets in a DAPT

SD CODE 55-16-2 and Warren at 6, adding that for a prenuptial plan “The trust must be established and funded prior to marriage.”

[41] SD. CODE Section 55-16-10

[42] Recently many jurisdictions followed the recommendation to replace a Uniform Fraudulent Conveyance Act with the Uniform Voidable Transactions Act; uniformlaws.org/LegislativeFactSheet, Fraudulent Transfer Act - now known as Voidable Transactions Act

[43]See Viken, Linda Lea M, Guarding the Home Front; Protecting the Spouse AAML Mid-Year Meeting  (2016)

[44] South Dakota is the only DAPT state that has a total privacy seal forever on the existence of a trust, its provisions or beneficiaries.  Warren at 4

[45] Monaco, Gregory M., A Practitioner’s Primer on the Pennsylvania Uniform Fraudulent Transfer Act, Pennsylvania Bar Association Quarterly, January 2015, 18-46.

[46] Monaco at 29-30

[47] Monaco at 30-31

[48] See 5 Problems with Domestic Asset Protection Trusts, www.thinkadvisor.com, March 29, 2012 suggesting offshore trusts are clearly preferable over DAPTSs.

[49] See June Carbone & Naomi Cahn, Marriage Markets: How Inequality Is Remaking the American Family ___ (2014).

The Oscars®, March Madness and Work: How Does an Employer Manage Distracted Working

March 8, 2017

By James Shrimp

As most of you know, at the Oscars® Warren Beatty and Faye Dunaway announced the wrong movie for the Best Picture Award.  In the initial hours after the show, many held Warren Beatty accountable (including me), because he clearly recognized something was wrong with the card – but showed the card to Faye Dunaway to read anyway.  However, in the days that followed, it became clear that multitasking was the blame.

Specifically, a Price Waterhouse Coopers’ partner who was responsible for providing the correct envelope to the presenters, decided to send a tweet in the moments before handing the Best Picture Award card to Warren Beatty.  This PwC partner was guilty of TWW (Tweeting While Working).  As a result of his TWW, the partner provided the wrong envelope to Mr. Beatty and chaos ensued.

Similarly, next week, millions of workers in the United States will be guilty of MMWW (watching March Madness While Working).  As a result of MMWW, work productivity will be lost and mistakes will be made on March 16 and 17.  In addition, FWW (Facebook While Working), SCWW (SnapChat While Working) and many other distractions are becoming endemic in the US workplace.

In fact, even in government, TWP (Tweeting While President), although entertaining at times, is a strain of distracted working at the paramount level.

A millennial will be quick to say, engaging in TWW, MMWW, FWW or SCWW is no big deal because humans can multitask.  Unfortunately, that is not true.  Numerous studies have found that the human brain does not multitask, instead, the brain cycles back-and-forth between the different tasks and as a result the brain’s output drops during multitasking and it leads to quicker brain fatigue – and mistakes.

In this world of 140 characters where distractions are all around, what can an employer do to minimize the effect of distracted working in its workplace.  Short of engaging a supervisor for every employee, or installing a cell signal dampener in the office, there is no way to completely eliminate distracted working.  However, there are a few things that can be implemented to discourage excess distracted working.

  • Adopt a Cell Phone/Tablet Usage Policy – In this policy, the employer will explicitly restrict the usage of cell phones at the work station, except in emergency situations. For this to be effective, however, it must be enforced.  This policy is distinct from a social media policy which governs the content of social media postings.
    • Notably, the PwC partner at the Oscars® asked for permission to tweet during the show. The partner’s request was denied and he was told not to tweet during the show.  But, he did it anyway.
  • Don’t Provide WiFi – Unless your computer system operates on WiFi, do not provide a system that is “open” to your employees. If they are going to be a distracted worker, at least make them pay for the data.  This may curtail usage, although unlimited data plans may limit the effectiveness of this idea.
  • Restrict Access on Work Computers – On the desktop or laptop computers at work, an employer can and should limit access to social media websites. In addition, the employee should be clearly advised, that anything entered or typed on the work computer is the property of the employer and there is no expectation of privacy.
  • Safety/Training Programs – For employers that have employees who operate machinery, drive (or hand out envelopes), periodic safety and training programs that incorporate cell phone best practices is crucial. In workplaces where machines are operated, having a policy of keeping the phone in a locker is completely acceptable; or if driving, to have the phone in the glove compartment.
  • Keep Your Employees Busy and Interested – Employees are more apt to become distracted if they are bored or not interested in their work. Boredom is the employers fault – lack of interest is perhaps an employee issue.

If you have any questions, please contact James Shrimp at 610-275-0700 or via email at jshrimp@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Melissa Boyd Acts as Faculty for Family Law ‘Flipped Classroom’ Event

Leading Pennsylvania family law attorney mentors colleagues on topics related to child custody

NORRISTOWN, Pa. (March 7, 2017) – Melissa Boyd, a family law attorney at High Swartz LLP, recently volunteered her skills to act as faculty for a program entitled “Child Custody: Practice Ready Skills in a Flipped Classroom.”

Held on Feb. 27 at the Pennsylvania Bar Institute in Philadelphia, the “Flipped Classroom” concept is meant to provide young or struggling attorneys with a mentor and a hands-on learning experience. The participants view video lessons prior to the classroom experience, and the program includes extensive exercises and skits while the faculty share their talents. Boyd participated in two sessions, “Assessing the Pros and Cons of What the Other Party Wants” and “Negotiating with Opposing Counsel.”  During her sessions, Boyd presented best practices for being a strong advocate for clients.

A key member of the High Swartz family law practice team, Boyd concentrates her practice on Pennsylvania domestic relations law. She is a fierce advocate for her clients in various areas including, but not limited to, divorce, pre-nuptial and post-divorce agreements, child custody and support, equitable distribution, alimony, adoption, protection from abuse, and juvenile law. She has dedicated her professional career to preserving the rights of children and their families.

Boyd is a fellow of the American Academy of Matrimonial Lawyers and a member of the Family Law Sections of the American Bar Association and the Pennsylvania Bar Association. She frequently presents on family law topics, and is past chair of the Family Law Section of the Montgomery Bar Association.

A graduate of Washington College and the University of Baltimore School of Law, Boyd has received the highest possible rating from Martindale-Hubbell and has been named among the 10 Leaders of Matrimonial Law in Philadelphia.

High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.