High Swartz Family Law Attorney Acts as Faculty for PBI Family Law Institute

Melissa Boyd presented as part of ‘Ethics and Civility in Family Law’ discussion

NORRISTOWN, Pa. (April 27, 2017) – Pennsylvania family law attorney Melissa Boyd, a partner at High Swartz LLP, recently acted as faculty for the Pennsylvania Bar Institute’s Family Law Institute, held April 19 and 20 at the CLE Conference Center at the Wanamaker Building in Philadelphia.

The Family Law Institute has become an annual tradition for family law practitioners in the Philadelphia area. The conference, which also was simulcast to numerous locations across the state, provided the latest practical information and domestic relations practice hints.

Boyd spoke on “Ethics and Civility in Family Law.” Mary Cushing Doherty, also a partner at High Swartz and the chair of the firm’s family law practice, acted as a course planner for the Family Law Institute.

A frequent presenter on family law topics for the Pennsylvania Bar Institute, the Family Law Section of the Pennsylvania Bar Association and the Montgomery Bar Association, Boyd concentrates her practice on domestic relations. 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, Pennsylvania Bar Association and the Montgomery Bar Association. She serves as the 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 one of the Ten Leaders of Matrimonial Law in Philadelphia.

Doherty has more than 35 years of legal experience in the area of family law and concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, visitation, custody, spousal support and alimony, premarital agreement asset protection, complex property division and more. She is a graduate of the University of Delaware and the Villanova University School of Law.

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About High Swartz

High Swartz LLP is a general practice 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.

 

Beware of Nursing Home Admissions “Agreement”

April 26, 2017By Eric G. MarttilaMost families have faced, or will have to face at some point, the difficult decision to place an elderly loved one in a nursing home or long-term care facility.  As hard as it is to believe, when this happens, we all need to be aware that some such facilities — as part of the admission process — attempt to take away our loved ones’ constitutional rights to justice by having them (or their legal representatives) sign an “alternative dispute resolution” agreement.As we have discussed before, when our loved ones are admitted to a nursing home or long-term care facility, we have the right to expect that they will receive the quality of care and protection which they are promised and to which they are entitled. Regrettably, however, there are too many times where they do not.  As a direct consequence of a breach of the duty of care, some of our loved ones experience serious injuries – and even death. When this occurs, and tangible harm results, those facilities who have been entrusted with their care must be held accountable for all harms and losses that result.Although such facilities can, and should, be held legally responsible for any harms and losses which are caused to the loved ones they have undertaken to protect, some seek to avoid or minimize that responsibility by having our loved ones (or their legal representatives) sign an agreement, even before the admission takes place, to have all subsequent disputes decided by arbitration — rather than in a court of law by a judge or a jury of peers, as guaranteed by the Seventh Amendment to the United States Constitution.There are various justifications offered as to why these facilities seek to have any and all disputes decided by arbitration – such as the alleged “speed, efficiency and cost-effectiveness” of the arbitration process — but the basic truth is that such a forum unreasonably favors them.  First, the arbitration process, as opposed to trial in a court of law, is much more likely to cause the proceedings – as well as the underlying failures of responsibility which made them necessary – to remain secret and hidden from public view.  Furthermore, by ensuring that all such disputes are heard through an arbitration process – and oftentimes by even dictating the particular arbitration service to be used – the facilities become familiar players before the deciding arbitrators, offering repeat business.  As a result, these arbitrators and/or services may be less inclined to hammer these facilities with the types of decisions and awards which are justified under the circumstances.Trust me, when our loved ones or their legal representatives unwittingly sign an “alternative dispute resolution” or arbitration agreement, these facilities and their lawyers will seek to enforce them if a lawsuit is filed – because they know that it is to their distinct advantage to do so.  As previously indicated, we are currently representing the surviving children of a resident loved one who suffered an untoward, and entirely preventable, fall leading to his death.  One of his children was later permitted to bring a claim for his wrongful death, and a lawsuit was filed. However, it was then discovered that, as part of the original admission process, the daughter who had been granted “power of attorney” was presented with a stack of papers several inches thick and essentially directed to “sign here” — one of which documents was entitled “Alternative Dispute Resolution Agreement.”The sad truth is that this loving daughter who was simply trying to facilitate her father’s admission to the facility was not offered the opportunity to, and did not, read through the so-called “Agreement” before signing it; was not informed that she had the right to seek advice of counsel before signing it; did not know that signing it was not a condition of her father’s admission, and, actually, believed that she had to sign the document as a condition of admission. In fact, the document was presented to her with an “X” next to where it was to be signed, and she felt pressured into signing the documents without delay. Furthermore, this highly educated representative did not even know what “Alternative Dispute Resolution” meant; did not know anything about the alleged “speed, efficiency, and cost-effectiveness” of the arbitration process; and did not know that she was being asked to give up  (and certainly would not have willingly given up) her father’s constitutional rights.These facts notwithstanding, the facility and its lawyers are now vigorously attempting to enforce the so-called “Agreement” and to deny the family its day in court. It should be noted that The United States Arbitration Act, more commonly referred to as the “Federal Arbitration Act” (or “FAA”), is an act of Congress that provides for judicial facilitation of private dispute resolution through compulsory and binding arbitration.  Significantly, the FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity . . .” and establishes a “liberal policy of requiring arbitration agreements.”  As a result, the United States Supreme Court has repeatedly mandated that both state and federal courts must enforce the FAA with respect to all arbitration agreements – and, thus,  enforce the “agreement” of the parties to arbitrate.  Interestingly, while the Pennsylvania Supreme Court has acknowledged that “the contract formation process that attends nursing facility admission can be a crisis-driven, stress-laden event involving the superior bargaining power of one party over the other,” it has held that it is nonetheless bound by the FAA.Although there are various legal challenges available to the enforceability of a so-called contract — such as fraud, mistake, duress, undue influence or unconscionability – one who has signed such an “agreement” faces an uphill battle to obtain relief from its terms.  Therefore, great caution should be exercised before signing any documents in connection with admission to a nursing home or long-term care facility.  We would encourage those involved to never sign away another’s constitutional right to a jury trial, and to be sure to consult with an attorney before signing any such admission “agreements.”If you have any questions about nursing home admissions agreements, please contact Eric G. Marttila at 215-345-8888 or via email at emarttila@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.

High Swartz Family Law Attorney Plans Course for PBI Family Law Institute

Mary Cushing Doherty helps organize annual conference for Philadelphia-area family law attorneysNORRISTOWN, Pa. (April 25, 2017) – Pennsylvania family law attorney Mary Cushing Doherty, a partner at High Swartz LLP and the chair of the firm’s family law practice, recently acted as one of the Course Planners for the Pennsylvania Bar Institute’s Family Law Institute, held April 19 and 20 at the CLE Conference Center at the Wanamaker Building in Philadelphia.high swartzThe 12th Annual Family Law Institute has become a respected tradition for family law practitioners in Pennsylvania. The conference presented live in Philadelphia, was also simulcast to numerous locations across the state, provided the latest legal developments and domestic relations practice hints.   Mary has served as a co-Course Planner for all 12 Family Law Institute programs, and the three years of the Family Law Potpourri predecessor program.Melissa M. Boyd, also a partner at High Swartz, acted as faculty for the Family Law Institute. Boyd spoke on “Ethics and Civility in Family Law.”A former member of the Board of the Pennsylvania Bar Institute,  and former Chair of the Family Law Sections of the Pennsylvania Bar Association and the Montgomery Bar Association, Doherty has more than 35 years of legal experience in the area of family law. She concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, visitation, custody, spousal support and alimony, premarital agreement asset protection, complex property division and more. She is a graduate of the University of Delaware and the Villanova University School of Law.

###About High SwartzHigh 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

When Counseling Perpetuates Abuse

April 18, 2017As family law attorneys we often take for granted that the paperwork required by the Court in order to begin a divorce action is simply administrative “filler.” We often tell clients that the counseling notice we are required to file with a divorce complaint is a formality and is never utilized.  But what if it were, and it were being used by an abusive spouse in an attempt to maintain contact with and continue to abuse the other party?The consent section of the Divorce Code, 3301 (c), states that 90 days after the divorce is served on the defendant, both parties can sign consents to move the case forward toward its conclusion. In a non consensual divorce, which is outlined in section 3301(d) the case can proceed once the parties have lived separately for one year, regardless of the defendant agreeing.Counseling in divorce was mandated, without allowing exceptions, under 23 Pa. C.S.A. section 3302. For a consent divorce, that  if one of the parties requested counseling in the 90 days leading up to signing consents, the Court had to mandate up to three counseling sessions.The court also had to mandate counseling if, as stated in section 3301(d)(2), after a hearing, the Court determines there is a “reasonable prospect” of reconciliation. In those cases the parties shall be required to attend up to a maximum of three counseling sessions in a 90 day time period. This occurs when either of the parties requests it, or the Court may require counseling where the parties have at least one child under 16 years of age.That meant that in a divorce someone could be forced into counseling whether they want it or not.  For a person in a domestic abuse situation that is a nightmare. Imagine you finally get the courage to leave an abusive relationship, you file for divorce from a person you fear, and then you are forced to sit in three counseling sessions with your abuser.  Often times abusers use any excuse to maintain contact with their victim and forcing series of counseling sessions is a perfect example of this behavior. Luckily the Pennsylvania Legislature and Governor Wolf address this exact issue last year.On April 21, 2016 Governor Wolf signed into law an amendment to section 3302 that provides an exception to the counseling requirement:  Notwithstanding any other provision of the law, in no case may the court require counseling over the objection of a party that has a protection from abuse order, enforceable under Chapter 61 (relating to protection from abuse) against the other party, or where that party was convicted or has entered into an Accelerated Rehabilitative Disposition program as a result of conduct for which the other party was a victim.As a result of this amendment abusers can no longer hold their spouse hostage and use the court system to delay a divorce and have additional unwanted contact.  This is another important step toward removing the stigma of domestic violence, keeping victims safe, and allowing them to move forward with their lives without fear.If you have any questions, please contact us at 610-275-0700 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.  

Tax Assessment Appeals in Bucks, Chester, Delaware and Montgomery Counties

April 11, 2017Unfortunately, it is that time of year again…tax season. However, I’m not talking about personal income tax, but real estate tax appeals.The deadline for filing a real estate tax assessment appeal for property owners in Bucks, Chester, Delaware, and Montgomery Counties is August 1, 2017 and October 2, 2017 for property owners in Philadelphia. In addition, residents of the surrounding counties may have limitations on how early they can file their tax assessment appeals. More importantly, deadlines in  all counties is absolute, which means that missing the deadline can result in you losing your appeal rights until 2019. While this may seem like a minor issue, filing your assessment appeal too early in certain counties can be as detrimental as missing the deadline. For example, in Chester County, appeals may only be filed from May 1st until the first business day in August (this year, August 1, 2017); while Delaware County residents are permitted to file their assessment appeals as early as March (this year, March 15, 2017). However, regardless of when your deadline is, now is the time to start considering whether you want to appeal your real estate tax assessment for 2018.For property owners throughout Pennsylvania, your property’s assessed value is the value used  in calculating your real estate tax liability for your county, school district and municipality. Keep in mind that your property’s assessed value is typically some percentage of your property’s fair market value.  When reviewing your tax bill, the simplified method of determining your property’s total assessed value is by adding the value assigned to your land to the value of the improvements on the parcel you own. The total assessed can the be used in calculating your property’s fair market values and should be closely reviewed.Philadelphia County is the most recent county to have assessment changes, as most other surrounding counties have not completed county-wide reassessments in over 10 years. For example, Delaware County has not had a county-wide reassessment since as far back as 2000, but due to a recent court order, the county is now required to complete a county-wide reassessment to become effective January 1, 2021. As a result of this recent court decision it is anticipated that other counties will follow Delaware County and complete a county-wide assessment. Therefore, property owner’s in counties that have not had county-wide reassessments in the last decade should not become complacent with their properties’ assessed value and should take notice of any changes in their tax assessments every year. Delaware County residents may also want to consider if they want to appeal their 2018 assessment or wait until the county-wide assessment becomes effective in 2021.However, a county reassessment is not the only thing that may trigger the reassessment of your property. If you make any improvements to your home or a piece of undeveloped land that you own,  your property may be reassessed.In general, it is a good idea for property owners to always check and compare your property’s assessment annually to make sure that your tax assessment appropriately reflects what your property is worth. Staying on top of your property’s assessment will ensure that if the property is overvalued, you will be able to take the necessary action to make sure you are paying the appropriate amount of real estate taxes.to summarize, when considering whether to appeal your property’s assessment for 2018, you should take the following into consideration: (1) how your property’s  fair market value compares with its current value and recent property sales in your area; (2) if your recently purchased your property, whether your purchase price  is consistent with your most recent assessment; and (3) if your property was recently appraised, whether the appraised value is consistent with the fair market value as determined by your assessed value.If you need help deciding if an appeal is worthwhile or with the process in general, consulting a knowledgeable real estate attorney can make all the difference in the successful lowering of your property tax liability.  For more information on the assessment changes that have impacted Philadelphia property owners‘ taxes for 2017, please see our blog about Philadelphia Tax Assessment Appeals.If you have any questions about tax assessment appeals, please contact us at 610-275-0700 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.

Sexual Orientation Discrimination: The Legal Jumble

April 5, 2017By James ShrimpImagine getting married, legally, on Saturday and then getting terminated by your employer on Monday because of who you married?  For members of the LGBT community that is a possibility for which currently there is no, or very limited, legal recourse.  But the tide may slowly be changing.On July 28, 2016, the Seventh Circuit dismissed a sexual orientation claim, ruling that until Congress or the Supreme Court acts, Title VII does not protect against discrimination in the workplace based on sexual orientation.  That decision is not remarkable, as all of the Circuit Courts, save the Ninth Circuit, currently share that view.  What makes it remarkable is that the Seventh Circuit expressed significant frustration over the current state of the law, explaining why the current jurisprudence on sexual orientation discrimination is cumbersome and unworkable – but adding, that their hands were tied until Congress or the Supreme Court speaks on the issue.BackgroundImportant to a discussion on Title VII, sexual orientation discrimination, is the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins.  In Price Waterhouse, the Supreme Court held that Title VII, as written, does prevent discrimination based on sex/gender stereotypes, but not sexual orientation.  Thus, an employer is not permitted to discriminate against a male employee because he dresses to “feminine” or a female employee that is too “aggressive”, but the employer is permitted to discriminate against an employee because he married another man.But that begs the question, is not discrimination against a male, because he has a relationship with another male, the violation of a stereotype?  This is the seeming lack of logic within the current state of the law.EEOC Decision in BaldwinLast year, in a case involving a Federal employee, the EEOC ruled that Title VII prohibits discrimination based upon sexual orientation for a number of reasons, including that “sexual orientation discrimination … is based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms and appearances.”  The EEOC than criticized Federal courts for trying to distinguish between sexual stereotype and sexual orientation discrimination.  However, EEOC decisions do not have the force of law, but this EEOC decision has led to some Federal Courts taking another look at their own sexual orientation discrimination decisions.The Current Analytical Quagmire Currently, the Federal Courts recognize claims from LGBT employees who couch their Title VII claims as sexual stereotype claims, not sexual orientation claims.  Thus, the law currently sanctions the absurd conclusion that “the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.”  But, if the effeminate man is openly homosexual, the individual has no protection.Since most instances sexual orientation discrimination have their genesis in the violation of a sexual stereotype the Courts have found the line between sexual orientation and sexual stereotype discrimination difficult to pinpoint and difficult to apply.  This is evidenced by the fact that some Courts have disallowed most, if not all, sexual stereotype claims – throwing the baby out with the bathwater.The Seventh Circuit in its decision concluded that “the distinction between sexual stereotype and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects LGBT individuals, but only to the extent that those individuals meet society’s stereotypical norms about how LGBT men or women look or act.”    The Seventh Circuit mused that the current state of the law creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act … from an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it.”With all of that said, however, the Seventh Circuit concluded that only when Congress or the Supreme Court acts, will sexual orientation discrimination be prevented by Title VII.TakeawayIt is still Federal law in the vast majority of the United States that there is no protection for sexual orientation discrimination (although most major cities have adopted their own ordinances/statutes providing protection).  However, the Seventh Circuit’s decision and analysis reflects a Federal Court system anxious for Congress and the Supreme Court to provide clarity on the bounds of Title VII with respect to sexual orientation.  In the meantime, those who are discriminated against based on sexual orientation and the Courts hearing those cases, will continue to split the hairs, presuming any hairs exist in reality, between sexual stereotype and sexual orientation discrimination.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.