Berman & Asbel, LLP

November 2009 Archives

Military servicemembers who disclose LGBT status on social networking sites risk discharge

Another reminder that what you post online can potentially be read by anyone comes in this alert from the Servicemembers Legal Defense Network.  Military personnel who post on social networking sites such as Facebook need to be careful about revealing information that could disclose their being gay, lesbian, bisexual or transgender because if that information is read or passed on to military authorities, it could lead to discharge under the Don't Ask Don't Tell law which is still in effect. The guidelines from the Servicemembers Legal Defense Network include: • DO NOT use a military email address for your profile;
• DO NOT access LGBT sites through a military computer at any time, or even through a personal computer during duty hours;
• DO NOT mention the fact that you are in the military in your personal profile, in chat rooms or other online forums;
• DO NOT provide photographs - especially not in uniform - or descriptions of tattoos or other identifying information;
• DO NOT tell friends in the military that you have a profile with a LGBT site;
• DO NOT submit your profile to be a "featured member;"
• DO NOT use any video-chat features. A good idea, and one which is championed by the SLDN, is to abolish the Don't Ask Don't Tell law so that LGBT servicemembers can serve openly without fear of discharge.  Not only is the policy unjust but it also deprives the military and the nation of the service of many dedicated and patriotic service members.   Let all those who wish to serve their country do so and let's judge them by the quality of their performance and conduct on the job only.  Are you listening, President Obama?

Did Texas accidentally ban marriage for everyone?

While perusing my Facebook newsfeed, I found an item about the Texas same-sex marriage ban posted by Pennsylvania State Senator Daylin Leach.  With a few searches, I found an article - Texas' gay marriage ban may have banned all marriages from the Fort Worth Star-Telegram.  Back in 2005, an amendment to the Texas state constitution was passed which, as many states have done, provides this definition of marriage: "Marriage in this state shall consist only of the union of one man and one woman."  That part seems straightforward.  Texas then took another step as this constitutional amendment contains a provision which says, "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." The apparent intent of this additional language was to prohibit alternatives for same-sex couples such as civil unions or domestic partnerships.  However, some attorneys are already arguing that whatever the intent, the plain language of this provision means something else - a complete ban on all marriages.  While it may seem obvious that was not the intention of the provision, the first rule in interpreting legal provisions is to look at the plain meaning of the text. Barbara Radnofsky, a Houston lawyer and Democratic candidate for Texas Attorney General blames the Republican incumbent Attorney General Greg Abbott for a major error in allowing this to happen.  I am not aware of heterosexual couples being denied a marriage license yet as a result of this language but Radnofsky says that a new amendment may be necessary to fix this problem.  Meanwhile, an article in the Dallas Morning News reports that a Texas state District Judge has ruled that the above-mentioned ban on same-sex marriage violates the Equal Protection clause in the United States Constitution.  In that case, two men from Texas traveled to Massachusetts and were married there in 2006.  This year, one of the men in the couple filed a divorce action in a Texas court.  The aforementioned Texas Attorney General Greg Abbott intervened in the case to argue that a Texas court cannot grant a divorce because Texas does not recognize same-sex marriage under its 2005 constitutional amendment. Judge Tena Callahan disagreed with Abbott and struck down the amendment.  Appeals will go on for some time. One of Abbott's criticisms of Judge Callahan's ruling was that she made that ruling despite the fact that the 2005 amendment passed with 75 percent of the vote.  Abbott seems to be forgetting that constitutional protections of individual rights and the independence of the judiciary are a check on the rule of the majority in our constitutional system.  Many arguments may be made for and against the validity of the Texas provision but the percentage of the vote it received is not a particularly good one.

For the sake of the children, keep child custody out of courtrooms whenever possible

While in my car the other day, there was a discussion on the radio about Custody Lost Due to shifts in traditional roles, working mothers now face even tougher challenges-including unparalleled custody wars, an article in Working Mother magazine.  Much of the article was a discussion about the parallel trends of more women working and being primary family breadwinners than in the past and more men being stay-at-home fathers and the impact in child custody court battles in terms of men more frequently being awarded primary physical custody of children than in the past.  There is debate about whether working women are being penalized for working or whether this is a reflection of equal treatment in the courts with judges, whose priority is to look to the best interest of the child awarding more custodial time to the parent who is able to spend more time with the children.  However, what I really want to focus on here is a point that is made in the last page of the article and which I try focus on strongly in family law practice.  Children should not be prizes to go to whichever parent can prevail in a court fight.  It is often the case that a couple can no longer stay together but whether or not they do, they remain parents of their children.   If the parents are unable to stay together in one household, they must do everything possible to create a cooperative, at least civil if not friendly, relationship for the benefit of the children.  Accusations and recriminations over who does more to parent the children or who spends too much time at work or who is providing more are destructive and pointless.  One of the basic facts of life in divorce is that when one household is divided into two, the living standards for both parents most likely will decline and it becomes more likely both parents must work.  It is also necessary that the children be given the love and attention they need.  The parents should, whenever possible, look to each other as their number one help resource for taking care of the children and should be willing to communicate freely and openly. This is not always easy but my experience from almost 20 years in law practice has shown that when parents separate and divorce, all - parents and children - do better when the parents can resolve their custodial issues without battling it out in court.  They also save a lot of money on legal fees and other expenses.  While I handle many disputed cases, I also work on custody agreements and even do mediation with both parents.  Here are some tips on having a better outcome for child custody when parents divorce or separate: 1.  Never, ever, ever use children as pawns against the other parent.  Do not pump them for information about the other parent's life.  Do not try to get them to choose you over the other parent or otherwise put them in the middle.  If a child tells you something that is truly concerning, look into it but don't use children as weapons. 2. Child custody need not be a war to be won but should be an exercise in cooperative parenting.   Sit down together and look at work schedules, schedules for kids and coordinate.  One of the biggest peeves that I have is when a parent is scheduled to have physical custody of their child and has a work or other obligation and then, rather than seek assistance from the other parent who lives relatively nearby, immediately seeks out paid child care.  It's ridiculous.  If a parent cannot be there at a certain time, the first phone call should be to the other parent (assuming they live in reasonable proximity).  Only if the other parent cannot or will not help should other child care be sought. 3.  Talk, talk, talk.  You are both the parents.  You are both responsible for the upbringing of these kids.  Share information.  Discuss concerns.  Do not jump to the conclusion that a child's problem is somehow the other parent's fault.  Divorced or separated parents do not have to be friends but they must cooperate in their shared enterprise of raising the children they brought into the world. 4. Never speak negatively of the other parent in front of children.  Each parent must have the other parent's back in front of the children.  If you must get anger off your chest about your ex, save it for when you talk to a friend, another relative or a counselor.  5.  Try to accept your ex as being a good parent even if he or she does not do everything the same way you would.  My clients who accept that their ex is also a good parent and that their children benefit from the relationship with the other parent have less stress about child custody and parenting than those who see any time that the children spend with the other parent as being some sort of penalty or punishment. I realize that there are some cases where a parent is truly unfit or even a danger to children and in those cases, strong legal action may be necessary.  However, in most cases, both parents love their kids and want to do what is best for them.  The children do better when the parents can set aside whatever anger or bitterness they may have from the breakup of the marriage or relationship and focus on working together to both be loving caring parents for their kids. Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

10 year-old Arkansas boy sits during Pledge to stand up for equal rights for gays and lesbians

A college classmate brought this news report from Arkansas to my attention about 10 year-old Will Phillips who is standing up for equal rights and equal treatment for gays and lesbians by remaining seated during the Pledge of Allegiance because, as Will is quoted in the article, ""I really don't feel that there's currently liberty and justice for all." Use the link above to read the article to learn more about why Will is taking this stand. Will did come under some pressure from a substitute teacher but his right to not say the pledge is protected by the United States Constitution according to the U.S. Supreme Court's landmark opinion in the 1943 case of West Virginia State Board of Education v. Barnette.  Unfortunately, Will has been subjected to harassment at school for his stance.  I really admire this young man for his strong, peaceful stand for his beliefs and being willing to dissent even when it may be uncomfortable to do so. 

In Pa., bicycles and motorized recliner chairs are vehicles under DUI and other laws

By now you have likely heard about the case of Dennis Anderson, the Minnesota man who motorized his La-Z-Boy chair by mounting it on a riding lawnmower and outfitted it with a stereo, cupholders and headlights and who, after imbibing some alcoholic beverages, was arrested and charged with Driving While Intoxicated. If this case had occurred in Pennsylvania, Mr. Anderson's motorized chair would indeed be considered a "vehicle" for purposes of Pennsylvania's DUI law.  In fact, a device need not have an engine or motor to be considered a vehicle so it is possible and indeed it happens that bicycle riders are arrested and charge with DUI when riding a bicycle after consuming alcohol.  All that is required is the requisite amount of alcohol consumption and operation of a vehicle on a highway.  (By the way, bicycle riders can and do get ticketed for speeding.) I have been asked whether one could be arrested for DUI while operating one of those motorized assisted mobility scooters that are marketed to senior citizens.  In fact, the definition of "vehicle" in Pennsylvania's Vehicle code specifically exempts, "a self-propelled wheel chair or an electrical mobility device operated by and designed for the exclusive use of a person with a mobility-related disability."  So Grandma or Grandpa might be able to escape prosecution for DUI if they have had a few beers or shots before hopping on their scooter but it is not a safe thing to try. A couple of important legal definitions under the Pennsylvania Vehicle Code:

Diverse families in Philadelphia exempt from city real estate transfer tax

In a follow up on my earlier posting on how same-sex couples and other diverse families can plan to leave property to each other, there is an important benefit available to families living in Philadelphia. The City of Philadelphia imposes a tax of 3 percent of the purchase price of real estate when sold.  The Commonwealth of Pennsylvania also imposes a real estate transfer tax - 1 percent of the sale price. Transfers of real estate between spouses have long been exempt from real estate transfer taxes.  The City of Philadelphia enacted an ordinance exempting registered same-sex life partners from paying the city's real estate transfer tax when transferring property from one to the other.  That ordinance was struck down by Pennsylvania Supreme Court because it treated same-sex partners differently from other people such as unmarried heterosexual couples.  In 2007, Philadelphia responded by enacting a new ordinance which now exempts persons who live in a household together who are "financially interdependent" upon each other.  Read more about this ordinance and the court case that led to it in this article by Rebecca Schatschneider, Esq. in a Philadelphia Bar Association blog.  Registered Life Partners are covered by this ordinance but such registration is not required to benefit from it. It should be noted that this ordinance has no effect on the statewide real estate transfer tax. Readers should not solely rely on this note for planning but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Thoughts to consider when choosing an executor or trustee

When you make a will or a trust, one of the choices you will have to make is who will be responsible for carrying out the directions in those documents - the executor for a will and the trustee for a trust.  There is no one right answer in every case but here are some ideas to think about. It is not essential to pick someone who has a professional background in accounting or finance.  In my experience, most of the people who are chosen to be an executor of a will or the trustee of a trust are not professionals in finance or related fields.  It is perfectly acceptable for an executor or trustee to retain the services of lawyers, accountants, financial planners and other professionals to assist in carrying out the terms of the will or trust.  The fees for these services can be paid from the estate or trust.  In some cases, it is appropriate to use an institutional executor or trustee but that is generally only appropriate in cases where there are large sums of money to be managed - $250,000.00 or $500,000.00 or more - because such institutions charge as their fee a percentage of the principal that they are managing.  In the case of serving as executor of a will, it may be a one-time fee.  In the case of a trust, it could be an annual fee as long as the trust exists. Geographic proximity does not have to be the primary consideration.  It is more important that the person chosen to serve as an executor or trustee be diligent, responsible and trustworthy.  Much, if not most, of the transactions and tasks required can be accomplished by mail.  Physical presence may be important when dealing with the contents of a house and selling a house which may require some visits if the executor lives at a distance.  Of course the reasonable expenses incurred for such necessary travel can be reimbursed out of the estate. Consider carefully before choosing co-executors or co-trustees.  Sometimes parents, out of a desire to treat their children equally, will want to name all of their children as equal, co-executors.  While this desire is understandable, in some cases, it can create a danger of conflict and deadlock.  There are some cases where the co-executors cannot agree on how to handle the estate or trust and the administration becomes paralyzed to the point that intervention of a court is required.  I generally recommend that there only be one executor or trustee at a time with an order of succession designated if the first executor or trustee dies, resigns or is otherwise unable to serve.  If you are going to have co-executors or co-trustees working together, be very sure you are confident that they can work together cooperatively. If there is a trust for children, should the trustee be the same person as the guardian?  This scenario comes up in the event that both parents are deceased and an inheritance for children is being held in a trust until the children reach a designated age set by the parents in the will.  The children will have a guardian who will be responsible for raising the children if the parents are deceased.  There are two ways to look at the question of whether or not the trustee for the children should be the same person as the guardian.  One view is that the guardian is the person who will generally be spending the money and there ought to be a check and balance with a different person as trustee.  The other view is that the guardian will be most familiar with the needs of the children and having a different person as trustee could be cumbersome and inefficient and a source of conflict.  Another reason to choose different people for these roles is that the parents may consider one person better at parenting and caregiving and thus a better choice for guardian while someone else may be better at financial management and thus a better choice for trustee.  In some cases, the same parent may have good skills for both roles.    I don't think there is only one right answer to this question.  It really depends upon the individuals involved.  The parents should consider this issue carefully when planning their estates. Perhaps the most important thing to do is to have conversations with the people you are considering for these different roles so that they understand what are your values and you can explore whether they are willing and able to handle matters as you would like. Readers should not solely rely on this note for planning but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

Despite Maine vote, Massachusetts case could have larger implications in gay marriage issue

Yesterday, voters in Maine voted to repeal a law that would have legalized same-sex marriage in that state.  This is a setback to those who believe in equal rights to marry but it is just one of many steps that will occur as this issue develops across America.  A court challenge that could have even wider implications but which is not getting as much publicity yet is  the case of Commonwealth of Massachusetts v. United States.  This case is the first challenge by a state government against the federal Defense of Marriage Act which was signed into law in 1996 by President Bill Clinton.  You can read more about this specific case and DOMA in this linked article by Massachusetts attorney David Gabriel.  DOMA does two things:  One - it defines marriage under federal law as a union of one man and one woman and defines "spouse" as a husband or wife of the opposite sex.  Two - DOMA provides that states are not required to recognize same-sex marriages authorized under the laws of other states.  This case is the first time that a state is challenging the constitutionality of the federal DOMA statute.  Essentially, the Commonwealth of Massachusetts is arguing that regulation of marriage is a power reserved to the states and that by denying recognition of certain marriages it authorizes, DOMA is infringing on the rights of a state, Massachusetts, to regulate marriage and to have its laws respected fully as the laws of other states are respected.The legal issues in the case are complex but practical implications of it are clear.  If Massachusetts succeeds in this challenge and DOMA is struck down, then a same-sex marriage that is performed in a state that permits them will most likely have to be recognized by other states under the Full Faith and Credit clause.  If states are then required to recognize same-sex marriages, whether or not they can be entered into in those states, there will be much less reason for states to continue to prohibit same-sex marriage directly.  One of the reasons that this case will be explosive politically is that  it places social conservatives and states' rights advocates in opposition to each other and could make for some unusual political alliances.This issue will play out in the courts and in the political arena for years to come but in the meantime,  people have to get on with their lives so what can same-sex couples do to protect their rights as partners and parents in a family unit? The options vary state by state and in my next post, I will describe some of the options available in Pennsylvania where I have my law practice.

Are partisan elections the best way to choose judges in Pennsylvania?

Today is what some might call an off-off-year election.   Here in Pennsylvania we are electing local offices and judges.  If anyone asks me, choosing judges by popular vote is not a good idea.  A judge, unlike a legislator or a governor or a president, is not supposed to respond to or be accountable to the popular will.  A judge's job is to uphold, enforce and interpret the law.   The rules of ethics which apply to judges make it rather difficult to have any substantive debate among opposing candidates.  When I read about judicial candidate positions or see a debate, the subject matter seems to be about administrative skills or rules of procedure and I get the strong sense that most voters have little opportunity to know much about these candidates.In my view, the state constitution should be amended to provide that all judges, at every level in the state court system, be appointed by the Governor and confirmed by the Senate - similar to the federal process.  Potential judges would still be rated by bar associations and other bodies before confirmation is considered.  To keep some popular will involved, the appointments could be for the same 10 year term that judges get now when elected.  At the end of the 10 year term, a judge would face a retention election - a yes or no vote on whether that judge should be retained for another 10 year term.Pennsylvania currently has retention elections and they generally are non-partisan in nature.  It is rare that a serious attempt is made to unseat a judge in a retention election and it should only be in unusual cases that a judge is denied retention.  If the no vote prevails, then that judgeship would be vacant and a new judge would be nominated by the Governor and confirmed by the Senate.Just my opinion.

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