US Supreme Court Rejects School District’s Sanctions Against Cheerleader Despite Outburst

Posted on by Thomas D. Rees

By an 8-1 majority, the United States Supreme Court blocked a Pennsylvania school district from punishing a cheerleader for a profane off-campus, off-hours outburst on social media. Mahanoy Area School District v. B.L., _ S. Ct. __, 2021 WL 2557069, 2012 U.S. Lexis 3395 (June 23, 2021). The Court’s decision sets limits on how far a public school district can punish a student for off-campus speech. The decision applies only to state and local public institutions. Justice Breyer wrote the Court’s opinion. Justice Alito wrote a long concurring opinion with numerous examples of situations in which a school district either may or may not regulate student speech.

B.L. a high school student, was angry at not having been chosen for the varsity cheerleading squad or the softball team. B.L. felt that she had been rejected unfairly. She posted a Snapchat message including the “F-bomb” directed toward school, cheerleading, softball, and “everything”. The posting took place off campus and outside school hours. The posting did not identify B.L.’s school or any individual at the school. But B.L.’s Snapchat message went to other students, some of whom implicated her. The high school then suspended B.L. for a year from the junior varsity cheerleading squad.

B.L. and her parents sued to enjoin the school from barring B.L. from the JV cheerleading squad. The plaintiffs alleged that the School District’s actions violated B.L.’s First Amendment rights to freedom of speech. The School District lost before both the District Court and the Third Circuit. See Mahanoy Area School District v. B.L.,964 F.3d 170 (3d Cir. 2020). The Third Circuit held that the School District did not have the ability to discipline a student for off-campus speech that was outside school-owned, operated or supervised channels and that could not be reasonably interpreted to bear the school’s imprimatur.

After accepting the case for review, the Supreme Court upheld the lower courts and ruled in B.L.’s favor, with only Justice Thomas dissenting. Justice Breyer gave three important reasons for differentiating between the School District’s inability to regulate off-campus speech and ability to control on-campus speech. First, a public school district does not stand in loco parentis for school students who are away from campus. Put more simply, parents are usually responsible for children once classes end and the student leaves campus. (This factor differs for private schools where the First Amendment does not apply, and for private boarding schools where the school is recognized as being in loco parentis during the student’s tenure at the school .) Second, a school district’s regulation of both off-campus and on-campus student speech might lead to a situation where a student had no rights of speech at all. Third, the schools have an interest in promoting free expression, even if the communication is unpopular.

The Court held that the School could not show that the disruption to School operations warranted the suspension. Finally, in recognition of the apparent triviality of not making the cheerleading squad and the student’s distasteful comments, the Court stated, “Sometimes it is necessary to protect the superfluous in order to preserve the necessary.”

Notably, the Supreme Court sided with the student on narrower grounds than the Third Circuit. The Supreme Court did not agree that the schools’ power to regulate student speech always disappeared when the speech takes place off campus. Schools would still have an interest in regulating severe bullying or harassment, threats aimed at teachers or students, speech related to academic and lesson matters, and speech that created breaches of security.

Family Attorney Jennifer R. Ryan Joins Our Doylestown Office

Posted on by High Swartz

High Swartz is pleased to announce the addition of Jennifer R. Ryan to the firm’s Family Law Team. After working at several respected Bucks and Montgomery county family law firms, Ms. Ryan is happy to again work in Doylestown where she grew up. She will continue to focus on all areas of family law including divorce, child support, child custody, alimony, equitable distribution, and Protections from Abuse actions.

“I was honored to get the opportunity to join the well-known Family Law team at High Swartz. Family is extremely important to me, and the firm understands that. You have to find the right work/life balance, especially in the current climate. I’m excited to be able to refer my clients to the other reputable practice areas at the firm. Often families will need wills or real estate assistance and it just makes sense to be able to go down the hall rather than outside the firm.”

After attending Central Bucks High School West in Doylestown, Jen moved on to Temple University’s Fox School of Business. She graduated with a degree in Marketing and briefly worked in the advertising and marketing industry. After the birth of her 3 children, Jen returned to school, earning her J.D. from Drexel University Thomas R. Kline School of Law.

Jen is an active member of the Bucks County Bar Association through which she also regularly provides pro-bono services to parties in Protection from Abuse actions . Outside of the office, Jen is the head coach of the Rock Gold Waye 14U National softball team based in Southampton, PA. Her daughter currently plays third base for the team. Softball runs in the family, as Jen’s older daughter is committed to play for a Division II softball program in the Northeast beginning in the fall of 2022. Jen’s son currently plays varsity lacrosse for Central Bucks East High School in Buckingham, PA. In her downtime, you can find Jen in her backyard tending to her garden and caring for her english bulldog – Stella, her french bulldog – Frankie and her brood of chickens.

Sexual Harassment in the Workplace

Posted on by Samuel T. Cooper

For business owners, minimizing the risk of civil liability is one of the most effective ways to avoid impacting your profitability by unnecessary lawsuits. A sexual harassment lawsuit by an employee can result in a substantial award paid by the employer.

In 2019, Employers paid out a record $68.2 million through the Equal Employment Opportunity Commission (EEOC) to employees.[1] Even in cases that settle before trial, the average cost to an organization for a harassment claim can be between $75,000 – $125,000.[2]

As an employer, reducing the likelihood of such lawsuits requires taking proactive steps to ensure that you do not run afoul of state and local law. It can also make sense to speak with an employment attorney conversant in those laws.
But what exactly are the duties of an employer with regards to preventing sexual harassment claims from arising? Below are three of the most common ways to reduce this potential liability and add an extra layer of protection to your business’s bottom line.

Reducing Your Exposure to Sexual Harassment Litigation

It is essential first to understand the various laws subject to a business owner.

At the federal level, under Title VII of the Civil Rights Act of 1964 (commonly referred to as “Title VII,” employers have a responsibility to maintain a workplace free of sexual harassment and to “take all necessary steps to prevent sexual harassment from occurring.” [3] To help accomplish this, the EEOC has issued regulations and guidance on the definition of sexual harassment and the employer’s responsibilities. Courts use these guidelines to decide whether to hold an employer liable in a sexual harassment case (29 C.F.R. § 1604.11(e).

According to state law, each state has a similar commission or guidance; in Pennsylvania, for example, the Pennsylvania Human Relations Commission, according to state law, issues guidance and provides another way for employees to bring claims against an employer (43 P.S. § 955.)

1. Address sexual harassment before or at the start of employment.

Sexual harassment claims by employees often revolve around the conduct of a co-worker rather than the actions of a manager or a third party. At the same time, this varies by industry.

Educating your employees at their pre-employment orientation or the first day of work is key to protecting against later liability.[4] However, liability for sexual harassment turns on whether an employer permits an intimidating, hostile, or offensive work environment to exist. Employers, therefore, have a duty to proactively prevent sexual harassment, including expressing strong disapproval to employees, developing a procedure for handling complaints (and informing new employees of the existence of these procedures), and educating employees about their rights under state and federal law.

Under U.S. Supreme Court precedent, employers who take reasonable steps to prevent and correct sexual harassment have a strong defense should a claim ever arise.[5] Equally important is ensuring that these preventative measures and the availability of corrective actions are open and available to employees at all times.

While there is no definitive list of pre-employment practices to follow, at a minimum, having a stated anti-harassment policy would establish that the employer attempted to prevent harassment before it began. The more thorough your orientation training and educational practices are, the less likely you will face liability down the road.

2. Develop a system or procedure for handling complaints and follow it.

As mentioned above, informing employees of how you will handle sexual harassment complaints is an essential component of preventing such harassment before it can occur.

Nonetheless, employers who fail to follow a set practice for addressing complaints or who do not take such complaints seriously when made open the door wide open for a later lawsuit. Time and again, failure by business management to take swift action when an employee complains of sexual harassment invites more of the same conduct.

From a legal standpoint, when an employer fails to take corrective action, it opens the door to a sexual harassment suit. That failure can lead to substantial fines and costly settlements. When a procedure is put in place to address instances of sexual harassment, following through on those policies is an excellent way to reduce liability. An employment lawyer can help draft those policies to make sure you avoid potential issues.

3. Avoid retaliatory actions.

While it may seem common sense, employers unknowingly expose themselves to lawsuits and administrative sanctions when they take disciplinary action against the employee complaining of the harassing behavior. A surprisingly high number of complainants, perhaps as high as 75%, face some form of retaliation from their employers after reporting the harassment.[6]

While it may be tempting to transfer, demote, or otherwise discipline an employee who is causing disruptions at your business, employers need to think carefully before taking such action if they have voiced complaints about sexual harassment. While the discipline might seem unrelated to you, an arbitrator, judge, or jury may think differently.
To avoid litigation (which may be costly even if you win), be sure to work with your Human Resources department or employment lawyer before taking any action against an employee in this situation.

Implementing solid policies and a workplace culture that disapproves of sexual harassment is the best way to prevent unwanted conduct from becoming a costly problem.

Talk with an Employment Lawyer Near You

Implementing solid policies and a workplace culture that disapproves of sexual harassment is the best way to prevent unwanted conduct from becoming a costly problem. In addition, consulting with an employment lawyer near you experienced in employment discrimination can give you the best course of action for keeping your business running smoothly. Our law firm has offices in Montgomery and Bucks County. We can help create effective policies and deliver appropriate guidance for sexual harassment in the workplace claims.

[1] https://www.eeoc.gov/statistics/charges-alleging-sex-based-harassment-charges-filed-eeoc-fy-2010-fy-2020
[2] https://www.yourerc.com/blog/post/the-cost-of-sexual-harassment-in-the-workplace
[3] Phila. Hous. Auth. v. Am. Fed’n. of State, Cty. & Mun. Emples., Dist. Council 33, Local 934, 956 A.2d 477, 483 (Pa. Cmwlth. 2008).
[4] The sources of sexual harassment vary based on the work environment; for example, roughly 90% of women in the restaurant/foodservice industry reported some form of sexual harassment in a 2018 study by Harvard Business Review. https://hbr.org/2018/01/sexual-harassment-is-pervasive-in-the-restaurant-industry-heres-what-needs-to-change.
[5] Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 766 (1998)
[6] See https://pubmed.ncbi.nlm.nih.gov/14570522/

Tenants and Bankruptcy

Posted on by High Swartz

Few events are more frustrating to a landlord than tenants and bankruptcy. The uncertainty of whether the tenant will pay outstanding rent, compensate for utilities and late fees, and leave the property can be infuriating.

Originally acquired as a source of revenue generation, the property now serves as free housing for a delinquent tenant. Despite the seemingly helpless outcome of a bankruptcy filing, a landlord should know there are still options on regaining possession of his property, as well as receiving some payments, even when a tenant declares bankruptcy.

What Happens When a Tenant Declares Bankruptcy?

The bankruptcy begins when the tenant files a Petition in the Bankruptcy Court. Upon the filing of a Petition, any legal proceeding between the landlord and tenant immediately freezes. This abrupt halting of the landlord-tenant dispute, known as the automatic stay, remains in place until either the bankruptcy court permits for it to resume or the bankruptcy proceeding completes.

Even if the landlord has already won a lawsuit, obtained a judgment for possession to reclaim his property, and has coordinated with a local constable to evict a tenant, the automatic stay proibits any further action. The tenant gets to stay until one of the two conditions above occurs.

While the automatic stay remains in place, the landlord should consider his options in conjunction with a real estate attorney. The petition will specify what type, or Chapter, of bankruptcy the tenant has filed. A landlord’s options depend on the type of bankruptcy the tenant has filed. In nearly all cases, a residential tenant will file in either Chapter 7 or Chapter 13 bankruptcy.

Tenants and Bankruptcy: Chapter 7

In Chapter 7 bankruptcy, the tenant surrenders his assets to a trustee. The trustee determines which of the tenant’s creditors gets paid from those tenant’s assets. The trustee generally liquidates the assets and ascertains the compensation each creditor receives.

The trustee pays creditors with secured claims with proceeds from collateral and then pays unsecured claims. As obligations to the landlord under a lease are usually unsecured, landlords typically fail to receive any payment of outstanding rent, late fees, or utilities when a tenant enters Chapter 7 bankruptcy.

The landlord may still get paid, however, if the tenant assumes the lease in bankruptcy. Under the Bankruptcy Code, the tenant must, within 60 days of filing his petition in Chapter 7, indicate whether he intends to either assume or reject the lease.

If the tenant agrees to the lease, he must maintain current rent payments and provide adequate assurance that he will pay all outstanding monies to the landlord within a reasonable amount of time. The tenant, in turn, can stay in the property while he pays the landlord under the terms of the lease.
Should the tenant fail to make such payments or provide the needed assurances, the landlord may file a motion with the Bankruptcy Court for relief from the automatic stay. A real estate lawyer can help you determine when, and if, to file a motion.

If the Bankruptcy Court grants the motion, the automatic stay terminates, and the landlord may return to state court to remove the tenant from the property.

If the tenant rejects the lease, he is no longer obligated to perform under its terms, such as paying rent. The landlord may try to obtain relief of the automatic stay from the Bankruptcy Court if the tenant refuses to vacate the property. After filing the petition, the Bankruptcy Code provides that the tenant rejects the lease if he does not assume it within 60 days.

Tenants and Bankruptcy: Chapter 13

With a Chapter 13 Bankruptcy, the tenant-debtor attempts to restructure his debt and pay his creditors based on a payment plan. This payment plan, which the Bankruptcy Court must approve (or confirm), should include the tenant’s proposal on paying the landlord any outstanding rent and costs.

Unsecured creditors, like a landlord, may even receive payment. Unlike a Chapter 7 case, the debtor maintains control over his assets instead of having the trustee liquidate them.

In Chapter 13, the tenant has until the time the Bankruptcy Court judge confirms the payment plan, rather than the 60-day deadline in a Chapter 7 proceeding, to either assume or reject the lease. If the tenant drags his feet and fails to meet his lease obligations while the plan confirmation remains pending, the landlord may ask the Court to confirm the plan sooner or seek relief from the automatic stay.

A tenant may propose to pay the landlord only a fraction of the agreed-upon rent spread over a series of several months while maintaining possession of the property. The landlord, however, may seek relief from the automatic stay to re-obtain the property and seek monetary damages in state court. In the event you would like to seek relief, it’s best to consult with a real estate attorney near you.

Tenants and Bankruptcy: Chapter 11

While individual tenants typically enter bankruptcy under Chapter 7 and 13, some may file under Chapter 11. Typically, business entities file under Chapter 11. In Chapter 11, the tenant-debtor will file a restructuring plan and follow the same deadlines to assume or reject the lease as in a Chapter 13 case.

Like Chapters 7 and 13, the tenant’s failure to comply with a lease (such as timely paying rent) provides the landlord a basis to seek relief from the automatic stay. Commercial property tenants filing under Chapter 11 have different deadlines to file a plan of reorganization. They also have separate timelines for assuming or rejecting the lease.

Judgment Collection in Pennsylvania. Why is it so hard?

Posted on by High Swartz

While obtaining a favorable judgment results from prolonged and costly efforts, collecting a judgment is arguably even more arduous.

Clients are often puzzled and even disappointed to realize that winning a case merely earns them a judgment in their favor. But when it comes to judgment collection, it’s another matter. So, they’re left asking what the point of months of litigating was? What was the point of all the confrontation? All the expense of hiring a litigation lawyer?

For example, a plaintiff or an aggrieved party who initiates a lawsuit can spend months, even years, litigating to obtain relief for incurred damages. Or a homeowner can toil in court for months trying to evict a delinquent tenant who has failed to pay rent. A company, too, can fight and fight for compensation when a former business partner refuses to honor a contract.

Litigation plows on, with seemingly no end in sight. Finally, after what seems like half a lifetime, the court schedules a trial, and the plaintiff appears in court against its adversary. The plaintiff argues his case, and after a tense trial, wins the case. The plaintiff is thrilled to learn that the relief he sought months, even years prior, is imminently obtainable. Clients tend to believe that the moment the jury (or judge, if a bench trial) announces a verdict in their favor, they are just minutes away from walking out of the courthouse with a check in their hand.

Unfortunately for those clients, nothing could be further from the truth.

Judgment Collection Differs Greatly from a Verdict

The party assessed the judgment (known as the judgment-debtor) often takes great lengths to avoid relinquishing assets to the successful litigant (known as the judgment-creditor). So, what does a judgment creditor do next, after spending considerable time, money, and resources, when it finally wins a lawsuit?

First, it is critical to understand that a verdict is different from a judgment. Pennsylvania law recognizes that a judgment is an official entry of a ruling or decision of the trial judge upon the docket.[1] You can collect on a judgment, not on a verdict.

Because a judgment and verdict are different, it is critical that the judgment-creditor “convert” a verdict or other determination of the court, which finally determines the parties’ rights and obligations, into a judgment. This action requires filing a “Praecipe to Enter Judgment” with the county’s Prothonotary, where the verdict was rendered. Only then can the judgment-creditor begin to collect on his judgment.

Attaching Liens to a Judgment Collection

Next, the judgment-creditor must ascertain where the judgment-debtor keeps his property. A judgment acts as a lien against property owned by the judgment-debtor. That lien only applies, however, to where the judgment is filed.

If the trial judge enters a $5000.00 judgment in Montgomery County, but the judgment-debtor owns a house in Bucks County and has no other property, then the judgment-creditor may never obtain the $5000.00 owed to him. In this example, the judgment-creditor must transfer the judgment from Montgomery County, where it was initially entered, to Bucks County, where the judgment-debtor’s property lies.

When the judgment-debtor attempts to sell his house in Bucks County, a title search will alert prospective buyers to the $5000.00 judgment, and the judgment will remain attached to the house until paid or satisfied. The judgment-creditor may transfer the judgment to any county, though it makes the most sense to transfer the judgment to a county where the judgment-debtor possesses property.

The judgment-creditor may continue to apply liens against the property until the amount of the judgment is satisfied. A judgment-creditor looking to transfer judgments to other counties should know that each county has its filing requirements and fees. If an overzealous creditor is not prudent, he may accrue filing fees that total the same amount of the judgment!

Filing a Writ of Execution

Once the judgment-creditor has determined where the judgment-debtor keeps his property, he can enlist the respective county’s Sheriff to assist in seizing the judgment-debtor’s assets, including bank accounts and other personal articles. The county Sheriff has the authority to seize bank accounts and hold sales over confiscated real estate.

Utilizing the Sheriff’s Office requires filing a Writ of Execution with the county Prothonotary, who then signs the Writ of Execution. The signed Writ of Execution, along with a fee, is then sent to the Sheriff.

The judgment-creditor must describe in detail within the Writ of Execution the property to seize, such as money, personal property, or real estate.

To better determine the amount, location, and other information regarding the judgment-debtor’s money, the Pennsylvania Rules of Civil Procedure permit the judgment-creditor to engage in “discovery in aid of execution.” [2] The judgment-creditor can take the deposition of any person, including the judgment-debtor or any representative of the bank (or other financial institution which holds the judgment-debtor’s funds), known as the garnishee. Discovery in aid of execution can be taken anytime after judgment, including before the Prothonotary approves the Writ of Execution.

Interrogatories to the Garnishee

The judgment-creditor may also consider issuing written discovery to the garnishee, known as “Interrogatories to the Garnishee,” to obtain more information regarding the judgment-debtor’s monetary assets.[3] The judgment-creditor can serve the Interrogatories to the garnishee whenever the Writ of Execution issues.[4] The garnishee then has twenty days under Pennsylvania law to provide the judgment-creditor with written answers.[5]

Note that though the judgment-creditor can use these legal tools to garnish a bank account, the garnishing of wages is generally not available in Pennsylvania. Only in some very narrow exceptions can a judgment-creditor garnish a judgment-debtor’s wages. The judgment-creditor should be aware of this when planning on how to collect his judgments.

If the judgment-debtor is cash-poor, the judgment-creditor can instruct the Sheriff (by way of a properly authored Writ of Execution) to levy against the judgment-debtor’s personal effects or real estate. The Sheriff can take an inventory of the personal property available and schedule a sale of the assets, which is open to the public, a few weeks thereafter.

If the judgment is substantial, such as tens of thousands of dollars, then attaching a judgment lien against the judgment-debtor’s house may be an option. However, the costs associated with securing a judgment to real estate can cost the judgment-creditor hundreds, if not thousands of dollars.

Further, the Sheriff typically only holds real estate sales at regular intervals, even as infrequently as every other month. It could take a judgment-creditor just as long to collect on his judgment as it did to get the judgment in the first place.

In any scenario, the circumstances surrounding a judgment and how to collect on it are never the same for any two judgment-creditors. A judgment-creditor looking to collect should contact a litigation lawyer to discuss the nuances of his case, what types of relief are available, and how to obtain that relief.

Careers

Posted on by High Swartz

As a successful law firm for over 100 years, High Swartz can attribute many of its achievements to a dedicated, hard-working team. Our law offices have cultivated a workplace where individuals can advance their careers and develop long-lasting relationships.

We seek hard-working, dedicated and client-focused attorneys and administration ready to take their careers to the next level. If you are interested in adding your talents to our team, contact our law offices at recruiting@highswartz.com. Please find below a list of our current openings.

Open Positions

Estate Planning Attorney – Associate – Norristown Office

High Swartz’s Norristown Law Office is seeking an Estates attorney. Successful candidate will have 7-10 years experience in estate planning, administration and litigation.

This is an outstanding opportunity for a motivated individual to grow their practice in estates, while having the ability to offer their clients other legal services within our general practice firm. Interested candidates should know that in addition to offering competitive salary and benefits packages, we reward top performers for origination as well as working attorney receipts, and allow our attorneys to work both in person and remotely, as the work process dictates.

If you are interested in adding your talents to our team, contact our law offices at recruiting@highswartz.com. 

Requirements

  • JD – licensed to practice law in Pennsylvania
  • 7-10 years of related legal experience
  • Proficiency in computers, especially in a remote environment
  • Proficiency with Microsoft Suite and case management/time and billing software

Real Estate/Municipal Attorney – Associate – Norristown Office

High Swartz’s Norristown Law Office is seeking a Real Estate/Municipal attorney. Successful candidate will have 7-10 years of legal experience with a specific focus in township/municipal law and zoning and tax appeals in the Montgomery, Bucks, Delaware, Chester and Philadelphia Counties.

This is an outstanding opportunity for a motivated individual to grow their practice in estates, while having the ability to offer their clients other legal services within our general practice firm. Interested candidates should know that in addition to offering competitive salary and benefits packages, we reward top performers for origination as well as working attorney receipts, and allow our attorneys to work both in person and remotely, as the work process dictates.

Requirements

  • JD – licensed to practice law in Pennsylvania
  • 7-10 years of related legal experience
  • Proficiency in computers, especially in a remote environment
  • Proficiency with Microsoft Suite and case management/time and billing software

If you are interested in adding your talents to our team, contact our law offices at recruiting@highswartz.com. 

Summer 1L Robert E. Slota Diversity Program

Every year, High Swartz participates in the Montgomery Bar Association’s Robert E. Slota Summer 1L Diversity Program. This summer internship experience provides rich and rewarding opportunities for 1L students. But more importantly as High Swartz sees it, is an opportunity to provide important real-world insight to law students. If you have any questions or would like to be considered, please contact Nancy Walsh at at 215-896-6970 or nancy@tbdnowllc.com.

High Swartz’s Statement in Support of Juneteenth

Posted on by High Swartz

Although Juneteenth may not be a household term, it represents an extremely important date in the history of our country.

High Swartz celebrates equal rights and understands that education and solidarity are important on this day and every day.

What is Juneteenth?

Juneteenth is a combination of 2 words – June and Nineteenth, or June 19th, which is the day that Americans recognize the emancipation of slavery in the United States. Although many may not be aware of the holiday or have only recently heard of it, recognition dates back to the year after slavery was abolished on June 19, 1865. On this date, Union Army General Gordon Granger announced that slavery was abolished in Texas.

Although President Abraham Lincoln’s Emancipation Proclamation abolished slavery in slave states over two and a half years earlier, enforcement relied on the presence of Union troops in those areas. Even two Union Border States, Delaware and Kentucky still legally practiced slavery up until the ratification of the thirteenth amendment to the Constitution abolishing slavery nationwide. Texas, being the farthest state from the Union army’s impact made it difficult to enforce the law. It was the arrival of the army in Texas that effectively ended the practice in southern states.

Is Juneteenth a national holiday?

Update: In 2021, President Joe Biden signed into law the national observance of Juneteenth, or June 19th as a federal holiday. Holiday recognition by the U.S. government is rare, making Juneteenth only the 11th date acknowledged in history. The last holiday recognized was Martin Luther King Jr. Day in 1983.

Over the years, legislation had been introduced multiple times to declare Juneteenth as a national holiday. Juneteenth was officially made a state holiday in Texas in 1980 and in 2020 in Virginia, New York, and New Jersey made the date a paid day of leave for state employees.

Temporary Restraining Orders – What are the Options in New Jersey?

Posted on by Michael B. Prasad

Domestic violence in New Jersey can include anything from serious physical violence to harassment as it is defined under the statute. When there is an allegation of domestic abuse in New Jersey, a victim can seek the protection of the Court. This is done by applying for a temporary restraining order. You can consult with a family law attorney for support with the process.

When there is an emergency need for protection, temporary restraining orders are often entered on what’s referred to as an ex parte basis. This means that the person seeking protection tells the Judge why they need a restraining order and the Judge, without hearing from the other side or reviewing evidence, decides whether to issue a temporary restraining order.

The judge has issued the temporary restraining order. What happens next?

Once a temporary restraining order is issued, it has to be served on (or handed to) the party who has been named as the defendant. Temporary Restraining Orders typically prohibit the other party from having any contact, direct or indirect, with the person protected by the order. If there are firearms those will have to be surrendered to the local police. And if the parties are living with one another, the temporary order may require the other party to leave the home.

What happens to the children?

Where children are involved, the temporary order may also affect parenting rights and the defendant may temporarily lose parenting time. Because these prohibitions are put in place without giving the other side an opportunity to respond, courts are required to conduct a hearing shortly after the entry of the temporary restraining order (usually within a week to 10 days).

I heard of Final Restraining Orders in New Jersey. What are they?

A final restraining order in New Jersey lasts until it is vacated by the Court, which means that there is no clear end date for a final restraining order . For the party seeking a final restraining order the threshold questions are two-fold:

  1. Was an act of domestic violence committed?
  2. Is there an ongoing need for protection?

If the answer to both these questions is yes, then a final restraining order is granted. If the answer to either question is no, then the temporary order is vacated.

What happens to Domestic Violence offenders in New Jersey?

New Jersey maintains a central registry of domestic violence offenders so once a final order is entered, the party found to have committed an act of domestic violence will be registered. This can have a negative impact on their ability to continue working and can prevent the person from being hired for certain types of jobs.

Will a restraining order show up on a background check in New Jersey?

On a routine background check in New Jersey, a restraining order will not show up because it is treated as a civil (non-criminal) matter. If a more thorough or extensive background check is run, there is a possibility the order will be found.

Is there anything more amicable than a temporary restraining order?

Sometimes, for any number of reasons, parties will decide that rather than going to a trial in front of a Judge and seeking a final order, they would rather reach an agreement on their own to resolve the restraining order. In those instances, New Jersey allows for the parties to reach an agreement for Civil Restraints which may apply regardless of whether they are married or unmarried.’

In short, civil restraints are an alternative to a final restraining order. They must be entered into by agreement, because that the Court cannot impose civil restraints. In some situations, civil restraints can be a good, less restrictive, option to avoid a final restraining order.

How do you file for Civil Restraints in New Jersey?

An agreement for civil restraints cannot be entered under the domestic violence docket (the court record where the Restraining Orders are lodged). Therefore, there must be another docket to enter the record of the Civil Restraint agreement. Typically, this will occur under either the FM (divorce or dissolution) or FD (not related to a divorce or dissolution) docket. The key takeaway is in order to enter into Civil Restraints there must be a place to record the agreement. In those cases the domestic violence action is vacated.

What protection does a civil restraint agreement provide?

Civil Restraints can address many protections similar to a Final Restraining Order :

  • Prohibit contact between the parties
  • Allow one party to continue to have exclusive possession of the home
  • Prevent either party from posting any disparaging or damaging comments online
  • Address parenting time
  • Add other agreed provisions to minimize conflict

What’s the difference between a civil restraint and a restraining order?

The primary distinction between Civil Restraints and Restraining Orders is in how they are enforced. When there is a restraining order in effect, whether temporary or final, a violation of the restraining order is treated as criminal contempt resulting in, among other things, jail time, fines and/ or probation.. Therefore, police can be called in the event of a violation.

Civil restraint violations, on the other hand, are, civil (non-criminal)in nature. The Court can enforce its’ order. The plaintiff can file a Motion for Contempt and Enforcement, but the civil remedies through the Court are limited and will likely not include incarceration. The decision between seeking a final restraining order or agreeing to civil restraints is an important one and often depends on many case specific factors. A family lawyer near you can help you determine which route to go.

Civil restraints might accomplish the desired protections and alleviate the uncertainty of a trial or the potential negative consequences of a final order. That said, there are situations and circumstances where civil restraints would be inappropriate or insufficient. Whether a person is the victim of domestic violence or accused of committing an act of domestic violence, one should consult with a family law attorney that understands New Jersey family law when contemplating resolving a case by litigating for a final restraining order or agreeing to civil restraints.

Talk to a Family Law Attorney

With any matter involving domestic abuse or violence, it pays to seek counsel from a knowledgeable family law attorney near you. Our family law practice is well established and supports clients in Doylestown and Norristown, PA. We also offer assistance to clients in Cherry Hill, NJ.

Our law practice can support you all types of issues relating to family law. Get in touch. We’re here to help.

Divorce Checklist

Posted on by Melissa Boyd

Divorce is never easy, even more so if you have children involved. But if you’ve decided a divorce is the only way out, make sure you’re completely prepared.

Use this divorce checklist to ensure you’re taking the necessary steps to make the process as smooth as possible and reach the fairest outcome for everyone involved. If you have decided to proceed, talk with one of our family law attorneys. Here are some of the big items to check off your list:

Are you sure?

Have you taken every step possible to ensure a divorce is what you really want? Have you tried marriage counseling? Talked with friends? Talked with family? Once you begin the proceedings, it will be difficult to put things in reverse.

Even if you are certain, you might want to consider a collaborative divorce or a mediator where the two of you can work through the process as partners and not adversaries. With either option, a team of legal, financial, and childcare experts will work with you and your spouse to minimize the potential damage of a divorce proceeding.

Don’t go it alone. Find the right family law attorney.

Sure you can go online and attempt to handle the process yourself. But having someone by your side can make a big difference. At the very least, it will ensure nothing is left to chance. Take your time. Talk with friends, families, co-workers, and others who have filed for divorce. Get their recommendations on a family law attorney.

Keep in mind, you don’t have to hire the first family lawyer you talk with. It’s a good idea to meet with several divorce lawyers to find the right fit. It’s important that you feel 100% comfortable confident your family lawyer will be supportive and understanding. Equally important, you’ll want to make sure the family law attorney you select is an authority and has handled cases in the county where you are filing. In fact, the two of you will have to decide the venue to file for the divorce.

After working together with your family law attorney you decide it’s a bad fit, don’t hesitate to end your relationship and find another family lawyer. Do you approve your attorney’s negotiation (or litigation) style? Your divorce attorney needs to be a trusted advisor and advocate. The divorce process is already going to be difficult enough, you don’t want your family law attorney to create another obstacle for you.

get organized before getting a divorce

Get organized.

There’s a lot of documentation that’s required. So, start assembling all the records you can even before meeting with a family lawyer. Here are just some of the records you should have ready and available:

  1. Income-related documents including tax returns, pay stubs, financial statements, business expenses if either of you is self-employed, and any other information that helps establish both parties’ income and earning capacity.
  2. Real estate-related documents presenting joint or separately owned properties, property tax assessments, mortgage statements, and home equity loans.
  3. Financial documents including bank statements, savings accounts, checking accounts, investments, pension funds, 401K plans, IRAs, mutual, and retirement funds. You should include life insurance policies for any family member including loans or cash balances against those policies.
  4. Marital debt documents covering credit cards, loans, medical bills, and other debt held jointly or individually.
  5. Vehicle documents including titles and registrations for any car, truck, boat, equipment or other vehicles. Make sure you have the outstanding balance owed for those vehicles as well as the current value.

It’s best to create a balance sheet (summary of assets and liabilities) to establish a clear overview; highlight pre-marital or gifted assets. Doing so will help save legal fees and establish your financial goals from the divorce proceedings.

Stop spending

You’ll want to avoid impulsive spending to make sure you have the finances to file for divorce. Moreover, after you file, a judge could put a hold on your finances to prevent you or your spouse from buying, selling or disposing of marital property. This action prevents either of you from draining funds simply to spite the other party. If there is anything you want to buy or sell, make sure you do it in advance of any divorce proceedings.

Make a plan for a place to stay

Are you going to move out? Is your spouse going to move out? If it’s you, where are you going to live? You could elect to remain under the same roof during the divorce process. Just make sure that will be a comfortable situation and not create any undue stress or worse. If you have children, you cannot take them with you without approval of your spouse or the court. (See below.)

If you elect to move out, make sure you have the financial wherewithal. Create a budget for yourself and stick to it. You’ll also want to make sure you continue to receive mail. Have your mail forwarded to your new address or set up a post office box. You may also want to make sure you take any personal items that have meaning … you might lose them or have them tied up for quite some time as the divorce plays out.

new relationships after divorce

Be careful about relationships

In Pennsylvania, you can file for a no-fault or fault divorce. As such, a relationship outside of your marriage can be used to establish fault. Spending on the relationship can become a major point of contention during the divorce process. Even if you’re already involved with someone, get advice about whether to avoid flaunting that relationship until your divorce is finalized.

What about the kids?

The news about your divorce will be shocking and painful enough for your children. So, make sure you have a solid plan in place to help them through the process. How are you going to break the news to them? The first issue you may face in court or negotiations will address their custody and child support.

Pennsylvania implanted new child custody laws a few years ago. You’ll want to review those laws and their impact on your family lawyer. Barring extending circumstances, a judge will award shared legal and often shared physical custody. As a result, you’ll need to determine a schedule for where your children will live. That schedule can become complex if you elect to move to another state. Do your best to arrive at a plan in advance. It will make things easier for you during the divorce proceedings.

The more you’ve taken the time to address this checklist, the better prepared you’ll be to handle the stress of your divorce. Equally important, you’ll have the documentation and clarity you need to work effectively with your divorce lawyer.

It’s not going to be easy. But you’ll get through it. A divorce checklist isn’t going to answer all of your questions. So if you are looking for a divorce lawyer near you, give us a call at 610-275-0700. We have law offices in Norristown in Montgomery County and Doylestown in Bucks County PA. We also have an office in Cherry Hill, New Jersey.

One of the reasons, we became family lawyers is to help ease families through situations like this. You won’t just be getting a family law attorney. You’ll be getting a partner to help you through things.

13 High Swartz Attorneys named to 2021 PA Super Lawyers® and Rising Stars Lists

Posted on by Tom Gabor

The Pennsylvania Super Lawyers® List adds some new High Swartz Attorneys.

High Swartz is pleased to announce that 13 of its attorneys have been named to the 2021 Super Lawyers® and Rising Stars list. Congratulations go out to the attorneys listed below.

2021 Attorneys on the Super Lawyers® List

Judith A. Algeo: Judith joins the 2021 Super Lawyers list for the first time in her impressive family law career in Bucks County, PA.

Melissa M. Boyd: Missy again is listed as one of the 100 Top Lawyers in PA, Top 100 Lawyers in the Philadelphia area and top 50 female attorneys in Pennsylvania for Family Law.

David J. Brooman: 2021 marks the 3rd consecutive year for David’s inclusion in the Super Lawyers® list. David was listed for his outstanding environmental law work in Montgomery County.

Mary Cushing Doherty: Mary is no stranger to the Super Lawyers® list. She joins Missy on the 100 Top Lawyers in PA, Top 100 Lawyers in the Philadelphia area and top 50 female attorneys in Pennsylvania for Family Law.

Mark R. Fischer, Jr.: Mark was nominated for inclusion in his fourth consecutive Super Lawyers® list for his outstanding firm contributions in civil litigation defense work.

Gilbert P. High, Jr.: 2021 marks Gil’s 16th consecutive year on the Super Lawyers® list. His legal acuity in State and local Municipal work continue to keep him on the top.

Thomas E. Panzer: His third consecutive year on the Super Lawyers® List, Tom is recognized for his Workers’ Compensation Law practice.

Thomas D. Rees: Tom joins Gil as another top attorney with 16 consecutive years on the list. Tom was included for his work in Employment and Labor Law.

Joel D. Rosen: Our managing partner was included for the 5th consecutive year for his outstanding work in Business and Corporate law.

James B. Shrimp: Jim joins the 2021 Super Lawyers List after multiple years on the Rising Stars List. His work in Employment Litigation in Montgomery County, PA got him selected.

Richard C. Sokorai: Rich returns for his second year on the Super Lawyers® list and is recognized in 2021 for his business litigation legal work.

2021 High Swartz Attorneys on the Super Lawyers® – Rising Stars List

Elizabeth C. Early: Liz has been nominated to her 5th consecutive Rising Stars list for her legal work in Family Law in Montgomery County.

Stephen M. Zaffuto: Nominated to his second Rising Stars list is 2021, Stephen joins the others on the list for his experience in Real Estate law in Southeastern Pennsylvania.

How are Pennsylvania Super Lawyers® selected?

Super Lawyers® uses a patented multiphase selection process, including nominations, independent research and peer evaluations. Lawyers enter the candidate pool by one of 4 ways – by a managing partner survey, nomination by other lawyers, third party feedback, or identification by Super Lawyers® themselves.

Step two in the selection process is independent research and the evaluation is based on 12 indicators of professional legal achievement and recognition by peers. Those indicators are:

  • Verdicts/Settlements
  • Transactions
  • Representative Clients
  • Legal Experience
  • Legal Honors and Awards
  • Special licenses or legal certifications
  • Standing within the law firm
  • Bar Association or professional activity
  • Legal Pro Bono work and community service
  • Lectures and legal writings
  • Education and employment background
  • Other outstanding legal services/achievements

Step 3 involves the candidates with the highest total number of points from steps 1 and 2 which serve on a blue ribbon panel. These panelists then evaluate other candidates within their primary practice area.

Step 4 is the final selection. A representative number of top attorneys in PA from small, medium and large size law firms are selected. The Super Lawyers list recognizes no more than 5 percent of attorneys in each state. The Rising Stars list recognizes no more than 2.5 percent of attorneys in each state. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger, or in practice for 10 years or less.

If you are in need of legal assistance, High Swartz is hear to help. Please call 610.275.0700 or use our contact form to email us.