Got a Subpoena to testify tomorrow?

New Pennsylvania rules regarding subpoenas to testify require reasonable advanced notice. 

On April 8, 2015, The Pennsylvania Supreme Court amended Pennsylvania Rule of Civil Procedure 234.1. Now, the rule requires that a subpoena must be served on a non-party witness reasonably in advance of the date the witness is expected to attend and testify.

What is a subpoena?

A subpoena is an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things which are under the possession, custody or control of that person. 231 Pa. Code § 234.1

Current Rule 234.3 Notice to Attend and Notice to Produce, states that a party witness shall be served notice reasonably in advance of the date they are required to appear. The old Rule 243.1  was silent on when an non-party witness must receive their notice.

This was cause for concern, because a person who is aware of the case is provided with reasonable notice, while a person who may have no advanced knowledge, but is named as a witness prior to trial, may not have received reasonable notice to appear. This can have an impact on witnesses such as landlords, business partners of parties, employers, and any witness who can’t just drop everything and show up for court at a moments notice.

While no one looks forward to having to come to court and testify, it is surely less difficult when reasonable notice is given and the witness can adjust his or her schedule accordingly.  In addition, as attorneys, we certainly don’t want to have an angry witness who was subpoenaed at the last minute get on the stand and decide they no longer wish to be helpful to our case.

While the rule has changed, and now requires reasonable notice, anyone who is subpoenaed is still required to supply information that is requested in conjunction with that subpoena.   Any documents or other information listed must be provided to the attorney who is requesting them.

Be Prepared. Both lawyers and clients must be more prepared when it comes to building witness lists. It is important that lawyers extensively review witness lists with their client in advance. Any late additions could be denied by the court, or the witness could be less than helpful if a reasonable time frame cannot be provided, which could damage the case depending on the value of the testimony.

For more information regarding this rule, please contact us at 610-275-0700.

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

Child Custody Scheduling Tips During the Holidays

Here are 6 recommendations I share with my clients to ease the stress and lessen the risk for conflict regarding child custody during the holidays.

An often unforeseen complication of separation or divorce is the highly emotional decision of who has custody of your children over the major holidays.It is natural to feel mixed emotions as you approach the holiday season: excitement over the holidays coupled with sadness and perhaps some resentment over having to split the holidays with your co-parent.Every family lawyer or Parenting Coordinator in Pennsylvania has been the recipient of a tearful or angry telephone call on the eve of a major holiday because the child custody holiday schedule is too vague or is not being adhered to.1. Plan ahead. There is no better way to set yourself up for unnecessary conflict and disagreement in the middle of an already busy holiday than a vague custody order. Be as specific as possible about what holidays will be shared, when and where the anticipated exchange times will be, and which parent will be doing to the transportation.2. Be prepared to be flexible, if necessary. Accommodate extended family events that fall on “your time”. Set aside the temptation to use the custody schedule to punish the other parent – you are just punishing your children. Your children, whether they realize it or not, will appreciate their parents working together to maximize the joy of holidays for them. And you never know when it could happen in your situation!3. Consider sharing major holidays. Split the day as evenly as possible, like Thanksgiving and Christmas. Alternate who has the “preferable” portion of the day each year. (Keep records!) If the holiday event cannot be reasonably split, like Seder (a Jewish ritual service and ceremonial dinner for the first night or first two nights of Passover), then alternate who has the event each year.4. Offset similar minor holidays like Labor Day and Memorial Day or New Years Eve and the Fourth of July. Minor holidays might not be minor to some. Take into account that co-parents may have more of a vested interest in 4th of July, (Their extended family has a big fireworks display every year) or other holiday.5. Honor old traditions, but do not be afraid to forge ahead with new traditions in this new stage of life. Take this opportunity to start traditions you meant to do before, but never got around to starting. Visit the light displays in your town, go see a holiday themed show downtown, round up the troops for a Thanksgiving hike in Wissahickon park – find an event you can continue to celebrate with your family for years to come.6. Make time for yourself in the midst of the holiday chaos. Remember, it is okay to mourn the loss of a past way of life. It is also okay to feel happy about creating a new life and new memories. Be sure to take the time to do something for yourself.When all is said and done, it’s about giving the kids the best experience and family time possible, so personal feelings or resentment have no place in making child custody holiday schedules.If you have questions about custody agreements, please contact family lawyer Elizabeth C. Early at (610) 275-0700 or eearly@highswartz.com. Our family law attorneys in Bucks County and Montgomery County law offices are here to assist you.The information above is general: we recommend that you consult a family law 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.

Date of Separation and What PA Courts Consider During a Divorce

When I meet clients who are seeking divorce, they often casually tell me that their marriage “really” ended years earlier, they just stayed married legally.

They’ve typically chosen to uphold their legal union for fear of hurting their children, or due to financial dependencies. Either way, they usually don’t realize that the exact date of separation may be crucial within the divorce process. Continue reading “Date of Separation and What PA Courts Consider During a Divorce”

529 College Savings Plans and Divorce in PA

If this one simple condition isn’t specified in your child’s 529 College Savings Plan, it could be a disaster in the event of a divorce.

Fade In:Scene: Norristown Law Firm

A divorced father of an 18-year-old comes in seeking legal advice. He is livid with his ex-wife and his divorce lawyer. The divorce was finalized years ago, and he wants an opinion on whether he can sue his ex-wife, or if his attorney committed malpractice because the funds that were in the 529 College Savings plan account were spent by his ex-wife.

Fade out.

This man’s issue is intriguing, because the obligation to contribute to him and his ex’s child’s college expenses requires interpretation of their property settlement agreement; there is no statutory obligation in Pennsylvania to contribute to a child’s college costs. The property settlement agreement lists the parties’ assets and liabilities. The asset list includes an entry for $200,000 in the 529 college savings plan account held by the ex-wife, with the child as beneficiary.

Ok, so what’s the problem?

The agreement states the parties will each contribute to the child’s education after “initially using all the child’s college savings.” The problem is his ex-wife owned the 529 plan account; the child was simply the beneficiary and not the owner of the funds in the 529 plan account. Nothing in the agreement provided restrictions on the ex-wife’s use of the 529 plan account assets.

Is it malpractice?

In those cases where family lawyers fail to address the 529 college savings plan funds owned by one of the parents, there is a real risk of malpractice. The father tells you that his ex-wife withdrew all the 529 plan funds to purchase her new Porsche and take wonderful trips to Europe. He wants to know if he can sue under the agreement or under the Uniform Transfers to Minors Act, or UTMA. The family lawyer must be savvy about the difference between the UTMA accounts and trust accounts, as opposed to 529 plan accounts. In this hypothetical, the family law attorney handling the father’s divorce failed to properly protect the interest of the father, who assumed the child’s 529 plan college funds were secure.

How does a 529 College Savings Plan work?

In 1996, the United States enacted Section 529 of the Internal Revenue Code, establishing a qualified tuition program whereby states or colleges offer college savings plans. The purpose of the 529 plan account is to provide a vehicle to save for college in a tax-advantaged way.

Anyone (the account owner, the beneficiary, relatives, friends, etc.) can contribute after-tax dollars to the account, where earnings grow tax-deferred while the funds remain in the account. Pennsylvania taxpayers will receive a state income tax deduction for any contributions to a 529 plan account, up to the annual gift tax exclusion.

Earnings will be tax-exempt (from both federal income tax and Pennsylvania state income tax) if used for qualified higher education expenses of the designated beneficiary at an eligible educational institution or used for a qualified transfer/rollover beneficiary’s education. If the earnings are used for non-qualified purposes, then they are taxed at withdrawal as ordinary income to the account owner or beneficiary and subject to a 10 percent federal tax penalty (with limited exceptions).

What should have been done?

The divorce lawyer must advocate for the non-owner parent, since the account and its earnings are subject to withdrawal by the owner. The key is the owner of the account retains control of the funds. Under the qualified tuition program, only one person is the owner. Although a beneficiary is named, the beneficiary has no right to invoke the protective language of the UTMA or trust provisions that would protect a beneficiary.

To add salt to the wound, one parent will often open a 529 plan account as owner, and others will contribute gifts to the beneficiary by depositing in the 529 plan account. Those gifts may come from anyone. Therefore, the divorce lawyer must negotiate to best protect the 529 funds. This may be relevant in all families, but it is surely critical in the event of divorce.

What else can we do to protect our assets?

Too often a divorcing couple will simply assume the 529 plan funds are non-marital assets. This is another mistake. A well-informed family lawyer, divorce master or judge will recognize that the 529 plan account is a marital asset. A parent who deposits funds in a 529 plan account is not removing assets from the marital estate. If a husband and wife want to treat a 529 plan account as nonmarital for the benefit of their children, they must address this by retitling the account or specifying restrictions in the parents’ property settlement agreement. Some suggestions follow:

Split the Plan Between Parents. It is not possible to have joint ownership of a 529 plan account. In some cases, mother and father will roll over half of the funds into a separate account, with each parent having ownership control over half of the assets in the predecessor 529 College savings plan. Each will designate the child as the beneficiary. If there is more than one child, each child’s 529 plan account can be split between the parents. Or the parents may agree to leave the accounts as titled but opt for other protective measures.

Provide Restrictions in an Agreement. The parties’ agreement and the court order confirming those terms can restrict how the 529 plan funds are to be spent. The agreement may provide the age at which the beneficiary becomes the owner (at age 18 or older).

Monitor the Account. The 529 plan account may be structured to authorize agents to have access to account information and statements. Pennsylvania 529 plans allow for interested parties to receive quarterly statements and for both parents to be informed of withdrawals. Parents often agree to share online access and passwords so each can check on the invested funds.

Give Authority to Another Individual. A limited power of attorney can be executed by the owner authorizing a third-party non-owner to act on the account. The power of attorney could provide that the person with the power has responsibility to report on transactions, in advance, to both parents.

Transfer Ownership, Specify Successors. The owner of a Pennsylvania 529 plan can change the owner of the account to the other parent, to the beneficiary (once over 18), or a third party such as a trust. Under the qualified tuition program, the funds can be rolled over to a successor beneficiary. What if the designated primary beneficiary completes school and excess funds remain? The favorable tax treatment will be preserved if distributed funds are rolled over for the benefit of a member of the beneficiary’s family, which would include a sibling, a spouse, a parent, the child of the beneficiary, grandchild, nieces and nephews, first cousins and more. If the parents want to distribute the excess marital funds, they can be withdrawn, taxes and penalty paid, and the excess funds equitably divided as provided in their agreement.

The provisions of the parties’ divorce agreement are valid restrictions on a qualified tuition program for 529 plan accounts. Saying nothing about the 529 plan account in the parties’ agreement or final decree, and assuming the funds belong to the child, is the mistake no family lawyer should make.

So what will happen with the emptied 529 College Savings Plan?

The father in your office, who tells you that the money is gone, may have no recourse under the Divorce Code because the 529 plan account balance was disclosed and there was no fraud committed by the other party. The language of the divorce settlement should have protected the money for the intended outcome: the college education of the parents’ child. If the client, his relatives and other loved ones contributed to a 529 plan account that has been legally emptied by his ex-wife, the lawyer who failed to protect the interests of the father may have disturbed a hornets’ nest and will need to answer to the father and all angry donors.

Repurposed from the edition of the The Legal Intelligencer© ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

Bucks County Bar Association to host “Phone Calls with Santa” Event

For a $10 donation,* a member of the Bucks County Bar Association Young Lawyers Division will call your child as Santa Claus!

The Young Lawyers Division (YLD) of the Bucks County Bar Association is conducting a “Phone Calls with Santa” event. The calls will occur the night of Wednesday, December 11 between 6:00 and 8:00 PM. The calls will be made by Young Lawyers Division members and volunteers.

Those interested can fill out and submit the attached order form with $10 payment per child. All $10 donations will be submitted to the Bucks County Opportunity Council, a non-profit organization dedicated to fighting poverty in Bucks County.

Please complete an Order Form and return it with a $10.00 donation per child to the address below no later than December 6th. Donations will be accepted as cash, check (made payable to “Bucks County Bar Foundation”) or by credit card by calling the Bucks County Bar Association office at 215-348-9413.

Bucks County Bar Association
135 E. State Street
Doylestown, PA 18901

Click Here to fill out and download the form

Phone Calls with Santa
Presented by the Young Lawyers Division of the Bucks County Bar Association
Wednesday, December 11, 2019
6pm-8pm

- $10 donation is per child.

High Swartz Recognized as a 2020 “Best Law Firm” by U.S. News – Best Lawyers®.

High Swartz is proud to announce it has received a “Best Law Firm” nod and has been recognized nationally in Land Use and Zoning Law and Litigation for 2020.

Also, in the Philadelphia Metropolitan region, High Swartz has been recognized as a Tier 1 firm in Family Law, Family Law Mediation and Municipal Law.

To achieve a “Best Law Firm” ranking, a firm must have at least one lawyer included on The Best Lawyers in America© list. Attorneys are neither required nor allowed to pay a fee to be listed. For 2019, 9 High Swartz attorneys were named among Best Lawyers:

Workers’ Compensation Law – Claimants in Doylestown, PA
Thomas E. Panzer

Land Use and Zoning Law in Norristown, PA
David J. Brooman & Gilbert P. High Jr.

Labor and Employment Litigation in Norristown, PA
Thomas D. Rees

Land Use and Zoning Litigation in Norristown, PA
David J. Brooman

Municipal Litigation in Norristown, PA
Gilbert P. High Jr.

Real Estate Litigation in Norristown, PA
Gilbert P. High Jr.

Municipal Law in Norristown, PA
Gilbert P. High Jr. & William F. Kerr, Jr.

Personal Injury Litigation – Plaintiffs in Norristown, PA
Richard C. Sokorai

Real Estate Law in Norristown, PA
Arnold Heller

Family Law “Lawyer of the Year – Philadelphia
Melissa M. Boyd

Family Law in Norristown, PA
Melissa M. Boyd & Mary Cushing Doherty

Family Law Arbitration in Norristown, PA
Melissa M. Boyd & Mary Cushing Doherty

Family Law Mediation in Norristown, PA
Mary Cushing Doherty

Land Use and Zoning Law in Norristown, PA
David J. Brooman & Gilbert P. High Jr.

Labor and Employment Litigation in Norristown, PA
Thomas D. Rees

The “Best Law Firms” rankings are based on a combination of client feedback, information provided on the Law Firm Survey, the Law Firm Leaders Survey, and Best Lawyers peer review.

The highest honor, a Tier 1 ranking, is based on a firm’s overall evaluation, which is derived from a combination of its clients’ impressive feedback, the regard that lawyers in other firms in the same practice areas have for the firm, and information that the firm provided to Best Lawyers via a survey.

Below are the itemized results:

  • National Tier 2
    1. Land Use & Zoning Law
  • National Tier 3
    1. Litigation – Real Estate
  • Metropolitan Tier 1
    1. Philadelphia
      1. Family Law
      2. Family Law Mediation
      3. Land Use & Zoning Law
      4. Municipal Law
  • Metropolitan Tier 2
    1. Philadelphia
      1. Litigation – Land Use & Zoning
      2. Litigation – Municipal
      3. Litigation – Real Estate
      4. Real Estate Law
      5. Workers’ Compensation Law – Claimants
  • Metropolitan Tier 3
    1. Philadelphia
      1. Litigation – Labor & Employment
      2. Personal Injury Litigation – Plaintiffs