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Delaware Trial Practice Blog

Stay Up To Date On Delaware State Court Matters

IS “SHARENTING” THE NEXT ISSUE FOR FAMILY COURT?

Posted in Custody, Delaware Family Court, Family Law

A recent Washington Post article explored the issue of “sharenting.”  Essentially, “sharenting” occurs when parents share (or overshare) the events of their children’s lives through social media.  It is a trend that appears to be sweeping the nation.  The article points out that “A new national survey from the University of Michigan C.S. Mott Children’s Hospital found that more than half of mothers and a third of fathers acknowledge that they share the ins and outs of raising their children online. We’re talking everything from cute photos and anecdotes to pleas for help raising their little monsters.”  All of this exposure is not without a potential cost.  The sharing, or over sharing, could be embarrassing to a child.  Even more troubling, posting a child’s photos, habits and whereabouts can presents security risks.

Presumably, when parents live together each has access to the other’s social media pages and can agree on what should or should not be shared about their children.  The same openness, dialogue and agreement may not be possible for separated or divorce parents.  If parents cannot agree on how much sharing is appropriate will the Court be called on to address “sharenting” in custody or visitation orders?  Only time will tell.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

 

 

MEDIATION IN DIVORCE – MAKING THE MOST OF THE PROCESS

Posted in Alternate Dispute Resolution, Family Law, Property Division

More and more divorcing couples are electing to engage in mediation outside of the courthouse in an effort to amicably resolve issues of property division and alimony. This option is often appealing because it can be a faster, more cost effective path to resolving a case. In addition, an amicable resolution can benefit the entire family by avoiding the stress associated with contested litigation. In order to make the most of mediation, the following tips can be helpful:


1) Be prepared. Before you sit down with the mediator make sure you have done your due diligence. Gather the documentation you may need and organize the information so that you can find it easily during the mediation. As you review your information, consider whether you need advice and from whom. For example, if you have questions about how to handle a tax issue speak with a CPA or tax attorney in advance.

2) Have a game plan. Consider what you want to and realistically can accomplish during the mediation. For example, at your initial meeting with the mediator the goal may be to identify and value all the marital assets and debts. Whatever your game plan, mediation will be more efficient and effective if you have taken some time to think through what you hope to achieve in advance.

3) Prioritize. As the Rolling Stones have long said, “You can’t always get what you want, But if you try sometimes well you might find, You get what you need.” An agreement often involves give and take by both parties. So, prioritize what is important to you.

4) Be flexible. There is no “one size fits all” solution. Keeping an open mind in mediation can allow for creative solutions that fit your specific situation and allow you to get what you need.

5) Be honest. Efforts to settle a case, such as discussions during mediation, are confidential and cannot be used as evidence in court. Mediation is, therefore, an opportunity for candid (respectful) discussion of the issues with an eye toward reaching a resolution. If both parties are not open and honest, resolution is more likely to be elusive.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

MEMBERS OF THE DELAWARE BAR WILL BE REQUIRED TO MAINTAIN AN OFFICE IN DELAWARE TO PRACTICE BEFORE THE FAMILY COURT

Posted in Civil Procedure, Delaware Family Court

The Family Court Rules of Civil Procedure are unique in many respects.  One distinctive feature is the absence of any requirement that members of the Delaware Bar maintain an office in this State for the practice of law in order to appear before the Family Court.  That, however, is about to change.  The Delaware Supreme Court recently approved an amendment to Family Court Civil Procedure Rule 90(a).  The Rule as amended provides:

(a) Admission. – Except as provided in paragraph (b) of this Rule, only an active member of the Bar of the Supreme Court of this State who maintains an office in Delaware for the practice of law as defined by Delaware Supreme Court Rule 12(d) shall be entitled to practice as an attorney in this Court.

The amendment, which was provided to the Bar today, becomes effective in 30 days.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

A Practical Tip Regarding Electronic Filing of Pro Hac Vice Motions in Delaware State Courts

Posted in Civil Procedure, Delaware Superior Court, Delaware Supreme Court, Practice Issues

On March 11, 2015, the following important bulletin regarding the e-filing of Pro Hac Vice Motions was issued by File & Serve XPress:

Filers in the Delaware Court of Chancery Civil Action, Delaware Superior Courts, and Delaware Supreme Courts will be required to select the document type “Proposed Order – Pro Hac Vice” when e-Filing their Pro Hac Vice Motions and Proposed Orders. The authorizer of the transactions should be the local Delaware counsel (as is required under DE Rules of Procedure), and the first words of the Document Title should be the Pro Hac Admittee’s name, last name, first name, followed by a colon, then the document title as shown in quotations below (omit quotations and brackets).

For Example: “Smith, John S.: Proposed Order [document title]…”

 

 

An Email Address Can Make All The Difference . . .

Posted in Practice Issues

No doubt you have seen the headlines about former Secretary of State Hillary Clinton’s email woes.  Those who do not deal with government information on a daily basis may not face the same regulations or scrutiny from the press as Ms. Clinton.  However, as the recent post by Mark Ashton, a Partner in our Exton office, points out her situation serves as a valuable lesson for many.  His post, entitled “The Peril Of The Office Server” provides a reminder that it is best to think of what you are mailing and whether you are using a private or work related email address before you hit send.  This can be a particularly important consideration if you are involved in litigation.

Envelope Sign Shows Internet Communication Message Online Stock Photo

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Supreme Court Affirms Appointment of Permanent Guardians

Posted in Delaware Family Court, Delaware Supreme Court, Family Law

In the matter of Harris v. Harris, Del. Supr., No. 390, 2014 (Mar. 4, 2015), the mother of two children sought to appeal the Family Court’s decision appointing the children’s maternal grandfather and step-grandmother, who had been the children’s guardians, as permanent guardians. Specifically, she opposed step-grandmother’s appointment. Mother argued that at the time of the filing of the Petition for Permanent Guardianship the statute required petitioners to be a blood relatives or a qualified foster parent, which step grandmother was not.  The Delaware Supreme Court noted, however, that before the Family Court resolved the case, the statute was amended to allow a guardian to be appointed as a permanent guardian.  Additionally, the Supreme Court stated,

Perhaps most important, the mother does not dispute the well-reasoned and well-supported findings of the Family Court that the mother is not capable of caring for the children adequately and that the grandfather and step-grandfather are well-equipped and well-motivated to be effective and caring guardians. Given the record before it, the Family Court did what was best for the children within the statutory discretion granted to it by the General Assembly in the revised Act. What would have been error would have been for the Family Court to have failed to use the full statutory flexibility it was given to shape a guardianship order consistent with the statute’s primary focus—the best interests of the children. Id. at 2 (citations omitted).

The decision may be read in its entirety here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Divorce and Taxes

Posted in Family Law

Divorcing couples face any number of questions at tax time.  Prior posts on this blog as well as our Pennsylvania Family Law Blog and New Jersey Family Law Blog have highlighted some of these issues.  Our past posts include:

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Delaware Judiciary Issues 2014 Annual Report

Posted in Delaware Court of Common Pleas, Delaware Family Court, Delaware Superior Court, Delaware Supreme Court

The Delaware Judiciary recently issued its 2014 Annual Report. The Report begins with Chief Justice Strine’s first Annual Report message, which makes reference to the Judiciary’s survey of the Bar (see previous post here) as well as  the Delaware Courts’ consideration of work-life balance (see previous post here).  In addition, the Chancellor, President or Chief Judge from each Court provide a more detailed update on the state of their Court along with a summary of Court initiatives and developments from the previous year. The Report also includes a message from the State Court Administrator, fiscal overview and a summary of 2014 legislation that impacts the Judiciary.

Along with the Annual Report, the Judiciary also published Statistical Information for 2014. This is a valuable resource for Delaware practitioners and offers statistics such as,

  • Disposition of appeals to the Supreme Court
  • Average time from filing to disposition of appeals to the Supreme Court
  • Average time from submission to disposition of appeals to the Supreme Court
  • Caseload of each Court
  • Caseload breakdown and disposition of matters filed in each Court with comparisons to previous years

Previous Annual Reports and Statistical Information can be found on the Court’s website.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

When is a home purchased prior to marriage considered marital property?

Posted in Delaware Family Court, Family Law, Property Division

Can a home that is purchased prior to marriage and titled in the name of only one spouse ever be considered marital property? The short answer is yes.

Delaware law presumes that property purchased prior to marriage is non-marital. See 13 Del. C. §1513.  However, that presumption may be overcome and an equitable exception to the rule applied under certain circumstances. Those circumstances may exist if the home was purchased in contemplation of marriage.

Home For Sale Stock Photo

The party seeking to overcome the presumption has the burden to prove that it was the parties’ joint intent at the time the property was purchased that it was done in contemplation of marriage. If the parties do not agree that it was their express intent to purchase the property as “theirs,” the Court will consider the evidence to discern the parties’ implied intent. See B.G. v. A.S., 2014 WL 4268434 (Del. Fam. Ct.). Family Court has declined to adopt a bright line test to determine intent. Rather, the Court will apply a case-by-case analysis to determine if the property was acquired in contemplation of marriage.
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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Mediation in Family Court – Unique Rules For A Court Of Special Jurisdiction Part III

Posted in Civil Procedure, Delaware Family Court, Family Law

Mediation, it is a process and concept with which most people are familiar. The Court rules define it as follows:

Mediation is a process by which a mediator facilitates the parties in reaching a mutually acceptable resolution of a controversy. It includes all contacts between the mediator and any party or parties until a resolution is agreed to, the parties discharge the mediator, or the mediator determines that the parties cannot agree.

See Superior Court Civil Procedure Rule 16(f)(ii) Court of Common Pleas Civil Procedure Rule 16(a)(9) and Family Court Civil Procedure Rule 16.1(e)(2). In Family Court, however, the mandatory mediation of child support and custody matters conducted by Court mediators are governed by a separate Rule and are handled a bit differently.

Child Support

Child support matters are scheduled for mediation with a Family Court mediator (unless one of the parties has committed an act of domestic violence or if there is a no contact order). If the parties cannot reach an agreement then the mediator has the authority to recommend a resolution which will become a temporary court order. Specifically, Family Court Civil Procedure Rule 16(a) allows parties to proceed immediately to a hearing if they cannot agree at mediation. However, if they elect not to proceed to a hearing immediately, Rule 16 provides:

If an evidentiary hearing is not held. . . and if the matter is not resolved at the mediation conference by a permanent, temporary, or interim agreement of the parties, then, absent good reason otherwise to be stated on the mediator’s report, the mediator shall prepare an interim order based upon the documentation provided and the Delaware Child Support Formula which upon review and adjustment by the Court shall issue promptly and may include an order for such discovery as the Court deems appropriate. (emphasis added)

Custody

Custody matters are also referred to mediation in the first instance unless there are issues of domestic violence.  With regard to custody mediation Rule 16 provides,

If the matter is not resolved at the mediation conference by a permanent, temporary or interim agreement of the parties, the mediator shall recommend an interim contact schedule based on information received at the mediation conference and in the best interest of the child(ren).

The mediator’s recommendation shall be reviewed by a Judge and if the recommendation is approved, it shall become an interim order of contact, without prejudice to either party, pending a full hearing. In the event that the mediator’s recommendation is not approved, the Court shall enter an appropriate interim order. (emphasis added)

In each instance the mediator is obligated to make a recommendation and to prepare a form of order based on his or her assessment of the facts of the case. These recommended orders are frequently signed by the Court.

Practitioners and litigants often debate the pros and cons of this system. The benefit of the process is that it allows the Court to issue temporary, interim orders quickly.  This gives families a framework for support and/or custody until they can have a hearing before a judicial officer.  This structure can be invaluable to families in transition.  However, because the process may result in the imposition of an order over the objection of one or both of the parties, litigants and practitioners also have some concerns.  For example, concerns arise that: (1) no witnesses are presented at mediation so an order results from what may be limited information; (2) there is no record of the mediation so the judicial officer does not have an opportunity to hear from the parties and to gauge credibility for himself or herself prior to signing a recommended order;  (3) it may be difficult for parties to feel free to negotiate when the neutral is also the person who will be drafting the interim resolution; and (4) the mediator’s notes remain in the file and as a result confidential settlement discussions are contained in the Court file.  For better or worse, this is the system that is in place and recognizing that it is not a typical mediation process can be helpful.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.