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Delaware Trial Practice Blog

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Alimony Decision Remanded For Determination Of The Date Of Cohabitation

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

The case of Sullivan v. Sullivan, Del. Supr. No. 258, 2014, April 21, 2015, raised multiple issues on appeal.  Of particular interest was Mr. Sullivan’s request to receive credit for alimony payments made after Ms. Sullivan began cohabiting with her boyfriend.

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Ms. Sullivan filed a motion for interim alimony in February 2012.  By order dated March 2012 Mr. Sullivan was required to pay monthly interim alimony payments commencing in April 2012.  In October 2012 Mr. Sullivan filed a motion to terminate this obligation alleging that Ms. Sullivan was cohabiting with her boyfriend.  In fact, he alleged that Ms. Sullivan began cohabiting before she filed the motion for interim relief.

The Family Court conducted a trial on Mr. Sullivan’s allegations and the issue of alimony.  In its decision, which issued on December 20, 2013, the Family Court concluded the evidence was “overwhelming that [Ms. Sullivan] began cohabiting . . . during the summer and fall of 2012.” Id. at 8. Despite that finding, the Court terminated alimony as of November 2, 2012, concluding that “the evidence clearly show[ed] that [Ms. Sullivan] was cohabiting by this point in time.” Id. at 9.  Mr. Sullivan appealed the decision challenging the termination date and the amount of credit due to him.

The Delaware Supreme Court agreed with Mr. Sullivan’s challenge and concluded that he “is entitled to credit for any alimony paid after [Ms. Sullivan] began cohabiting.”  Id.  The case was remanded to the Family Court to determine when during the summer of 2012 the cohabitation began, and to provide credit to Mr. Sullivan for any payments made after that date.

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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.

 

2015 Bench and Bar Conference

Posted in Uncategorized

The 2015 Bench and Bar Conference will be held in Wilmington on Friday, May 15 at the Chase Center on the Riverfront (a registration form can be found here).  This Conference is an excellent opportunity for practitioners to interact with colleagues and the Bench in an informal environment.  The view from the Bench portion of the program will include a discussion with members of the Bench from all Delaware Courts addressing best practices, preferences, practical instruction, and pet peeves.  The view from the Bar will report preliminary results of the survey of members of the Bar about how the Courts operate and how the system could be improved (see previous posts on this Survey of the Bar here and here).  The results of this survey will be incorporated into a final report and recommendations to be presented to the Chief Justice and members of the Supreme Court later this year.  The Conference will end with a BBQ reception and an opportunity to socialize with members of the Bench and Bar.

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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.

 

 

Writ Of Garnishment Examined By The Superior Court

Posted in Delaware Superior Court

The issue presented in Mosaica Education, Inc. v. Academy of Dover, Inc. was concise: Is the Office of the Treasurer subject to a writ of garnishment if a State affiliate has a debt owing to a third party?   The Superior Court decided the question in the affirmative.  The decision may be viewed 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.

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.

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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.