Jennifer J. Riley, Author at JJR Law Firm

Who Keeps the House in a Divorce?

by Jennifer J. Riley

Knowing how to handle the house during separation and divorce in Pennsylvania can create the most insecurity during the process. This post addresses some of the more common questions we answer related to the divorce process and the house (also commonly referred to as the “marital residence” in equitable distribution.)

Can I afford the house?

This is not an easy question to answer. If you keep the house, you will likely need to refinance the house in order to remove your spouse’s name from the mortgage (if the mortgage is in both of your names). You will also likely need to pay to your spouse a significant percentage of the equity value of the house. Please call us for a free consultation to receive legal advice as to how a house is valued in equitable distribution. There are several details we will need in order to tell you how your house will be valued.

It is never too soon to discuss your pending divorce with a financial planner. A financial planner can help you investigate options available to you to help afford the mortgage after the divorce. Some things to consider will be: the other assets you will have; whether you will receive or pay alimony; whether there is enough equity in the house.

When we have all of the information related to your assets, your divorce lawyer can share with you different options available to help you afford the house. We can look at your other assets, such as retirement accounts (including 401k Retirement Savings Plans), bank accounts, savings accounts, pensions, and more, to help you create a distribution and settlement that helps you keep the house.

If it will not be possible for you to keep the house, you will likely sell the house during or after the divorce process. Consulting with a realtor early in the process will help you understand the true fair market value of your house, and will help you decide if selling is right for you.

Can I leave the house during the separation and divorce process?

There is a great deal of “advice” on the internet suggesting that you refuse to leave your home during the divorce process. In Pennsylvania, you do not lose your economic rights to the value of the house if you choose to move from the house. Everyone has the right to live in a happy – and, most of all, SAFE – environment. You are not a prisoner during the divorce process and the process can take anywhere from four months to several years, depending on the facts in your case; there is no reason to put your happiness on hold while the process continues.

If you move, you may not be able to move with the children – especially if you are relocating outside the county or state. Please schedule a free consultation so that we can help you navigate moving from the home when you have children. There are additional factors to consider when you are planning to move with your children from the house and we will provide you more detailed information to help you decide your next steps.

Do I have to pay the mortgage if I leave the house?

Generally speaking – and there are some exceptions – the spouse who continues to reside in the house is required to pay the mortgage, taxes, insurance, and other necessary expenses for the house. If the payments are not being made and your house may face foreclosure, be sure to contact a divorce lawyer as soon as possible.

We are happy to discuss other matters related to your house and the divorce process. Please schedule a free consultation with one of our experienced attorneys. We can provide answers to your questions to help you make these important decisions, and to help you protect what matters most.

Limits of AI in the Law

by Tyler Kaestner

Artificial intelligence (“AI”) systems have captured the attention and fascination of many; with the launch of the revolutionary “ChatGPT,” AI has become more accessible than ever. With the next step in its evolution, the tech company OpenAI has already outdone their introductory GPT model with “GPT-4.” “GPT-4 is an updated version of the company’s large language model, which is trained on vast amounts of online data to generate complex responses to user prompts.”¹ This ability to “generate complex responses” is referred to as “generative AI.” This technology has wide reaching applications – including integration in search engines, language learning programs, and in the legal field.²

This base GPT-4 technology has quickly made its way into program offerings by legal research companies, including Casetext and LexisNexis.³ Casetext’s “Cocounsel” program has promised to aid in legal research and tasks, becoming a premier “legal AI” tool. The program targets the general AI technology to the law practice by programming in a vast data base of case law and legal information, as well as allowing lawyers to upload documents for the program to review. These tech companies are also developing ways to bring legal tools to non-lawyers, including one company that is looking to make a “one-click lawsuit” for people to use in situations such as receiving an unwanted “robocall.”⁴

While a battle between robots might inspire visions of Transformers fight scenes – there is certainly as much peril in them. Yes, AI technology is rapidly improving, and it can be quite impressive, but it is also imperfect. Current AI technologies are still riddled with errors that prevent them from operating at the level of reliability required in the practice of law. For example, in a highly publicized case, a law firm in New York was sanctioned by a Court for including several fictitious cases in a brief submitted to the court.⁵ In their defense, the lawyers said that they used ChatGPT to help in their legal research, and that these fake cases were given by the AI system. Not only that, but in an effort to double check the results, the lawyer asked the chat-bot whether the cases were real before including them in his brief – which the chat-bot again purported them to be real, and existing on legal databases, even representing them as being authored by real judges!⁶

Yes, that means that ChatGPT’s program completely made up court cases, but was sophisticated (if it were a person, we might say devious) enough to incorporate real elements into them. The newer version, GPT-4, is said to be “60% less likely to make stuff up” – this leaves far too big a margin of error that the program could still flat out make stuff up. This raises major legal ethics concerns. With the ability for false information to be generated from the AI systems, even the co-founder of Casetext, the company that created the “legal AI” assistant, urges that the program “still requires attorney oversight.”⁷ Lastly, there is the fact that in order to power these systems, it requires lawyers to disclose sensitive personal information, that should otherwise be kept strictly confidential, to the AI software.³ With tech companies like OpenAI keeping their data processing mechanisms secret, there is no telling where a person’s information might end up, or how a lawyer could control where it goes.

In sum, there is reason to be excited about the prospects around AI for personal use, and there might be way a person finds it makes life easier. But in the context of the practice of law, there is still too much room for error and violation of legal ethics for it to be relied on. The trained hand of an attorney is still required to meet the needs of their clients.

1 https://www.cnn.com/2023/03/16/tech/gpt-4-use-cases/index.html

2 https://www.theguardian.com/technology/2023/mar/15/what-is-gpt-4-and-how-does-it-differ-from-chatgpt

3 https://www.abajournal.com/columns/article/the-future-is-now-the-rise-of-ai-powered-legal-assistants

4 https://www.cnn.com/2023/03/16/tech/gpt-4-use-cases/index.html

5 https://www.reuters.com/legal/new-york-lawyers-sanctioned-using-fake-chatgpt-cases-legal-brief-2023-06-22/

6 https://www.bbc.com/news/world-us-canada-65735769

7 https://law.stanford.edu/2023/04/19/gpt-4-passes-the-bar-exam-what-that-means-for-artificial-intelligence-tools-in-the-legal-industry/

Divorce and Student Loans

by Jennifer J. Riley

Student loan debt can be a crushing financial burden for many Americans, and it can be even more difficult to manage when you’re going through a divorce. If you and your spouse have student loans, you’re likely wondering how they will be addressed in the divorce.

How Student Loans Are Divided in a Divorce

The way student loans are divided in a divorce depends on many factors. When you schedule a free consultation, please be ready to answer the following questions:

In whose name are the loans?
Were the loans taken out (in whole or in part) before or during the marriage?
Did you or your spouse use the loan proceeds for any purposes other than tuition/books and related expenses?
What are the outstanding balances of the student loans?
Did the loan balances increase or decrease during the marriage?
Did you or your spouse pay any of the balances during the marriage?

Your answer to these questions will help your lawyer inform you whether the loans are considered ‘marital’ and subject to distribution in the divorce.

What to Do If You or Your Spouse Have Student Loans and Are Getting Divorced

If you or your spouse have student loans, schedule a free consultation with an attorney. Our attorneys can help you understand your rights and options.

Divorce can be a difficult time, but it’s important to remember that you are not alone. There are resources available to help you through the process, including financial counseling and legal assistance, and our attorneys can help you along the path.

How to Divorce a Narcissist!

As a divorce lawyer, I have often read that “divorcing a narcissist is more difficult than being married to one.” I have never heard my clients say that, though! It is not a surprise that many clients report being married to narcissists. Our clients who are married to narcissists are often already receiving psychological counseling before seeing a divorce lawyer. They are protecting their mental health in preparation for the divorce because they know, from painful experience, what might be coming next. Your divorce lawyer is not a psychologist and cannot pretend to be one. They are your advocate and they are in your corner. But, when you are recovering from a marriage to a narcissist, it is advisable to have many professionals in your corner – especially a therapist well trained in the impact of narcissism on partners and the trauma many people report suffering as a result.

There are many resources available to you if you think you are married to a narcissist. First, make sure you tell your divorce lawyer. It will help us know best how to help guide you in the event your narcissistic spouse exhibits some of these behaviors and attempts to sabotage your divorce or attempts to harm you: violence, threats, gaslighting, or blaming you, or any of the other common behaviors we see. Second, please consider psychological counseling, before and during the divorce. This will help you build a strong, supportive team through the divorce process. Finally, take good care of yourself. You will undoubtedly feel pressure to ‘give in’ during the divorce when your narcissist spouse feels the power shift back to you. Do what you know is best for you and for your children. What is “best” for you can only be decided by you, with advice from your divorce lawyer and, if you choose, with some guidance from a therapist. Take time to think about how you want your post-divorce life to look as you regain the power and control to redesign your life, free of the pain associated with being married to a narcissist.

You survived a marriage to a narcissist – you will certainly thrive in the divorce!

“The Best Views Come After the Hardest Climbs”

I take to the woods when I need a dose of nature to balance life. While I’m a pretty experienced hiker, my friend, Karen, is a much better hiker than I am (read: less afraid of falling down the side of the mountain!) She’s the kind of hiker who sees hawks where I see tree limbs, who can spot animals as soon as she hears the crackling of a branch, and who knows her way back out of the woods (and without whom, I would certainly not).

I am really good at climbing up hills and rocks, but fairly terrible at making my way back down. I feel like there is less ability to balance on the hike back down, and you need to have faith that the rocks and branches will support you.

Karen and I took a new hike recently in Skippack. It was absolutely beautiful and the views overlooking the woods and creek were well worth the climb. However, this meant the path was full of sections where we had to “make our way back down.” By the time we had to hike back down, it had started to rain a bit. The rocks were slick, the leaves were slicker, and I tried to hide my discomfort as we started on our way.

I did not say a word to Karen about my fears. Karen forged the path ahead of us and, once she made it down the rocks first, turned to me with her hand out and offered me support. She did not say a word to me, either — no direction, no judgement; she just held her hand out, offering support when I needed it most.

This is part of what your divorce attorney should do for you. There will be ups and downs along your path. There will be days you feel like you can climb the mountain, and other days when you’re afraid of what the path back down will bring. As your lawyers, our job is to turn to you and offer support — not judgment — when you need it most. You know how to navigate the woods and the path ahead of you. Making your way through this process is hard work. But remember — the best views come after the hardest climbs.

The Split – Who knows what you might find on the other side?

“Can there ever be the good divorce? A laying down of arms. Sanguine recognition that not all divorce is failure. Simply some marriages are finite. Why do we place so much weight on the idea that things must last?
Surely what constitutes a successful relationship is knowing when it is over. Being brave enough to call time. The desire of two people who have spent their lives together, good lives together, who are not willing to throw it all away for a few months of pain.
Isn’t that what also constitutes a good divorce? One where memories are left to exist untainted, where children are guided through the storm, where two people can say we did it well, we took care of one another even if the marriage is no more.
Be brave. Don’t be afraid. Who knows what you might find on the other side?”
—The Split

*_{Mark Johnson/Sister Pictures/BBCW/SundanceTV}*

So begins the final episode of the final season of The Split, a British drama that explores the concept of a “good divorce.” As a divorce lawyer, I tend to avoid television shows that focus on divorce, often because many shows try to find humor in divorce, or try to make this incredibly complex process ‘simple.’ As our divorce and family law clients know too well, this process is never simple. But The Split, in its emotionally poignant, relatable, and touching way, demonstrates that there can be a “good divorce.”

What a “good divorce” means is open to interpretation. On The Split, we follow the lives of a beautiful, loving, intact couple who, through a series of life transitions over the three few seasons, find their marriage fractured. We share in the characters’ love, their confusion, their regret, their confidence, their fear, and their transformation. Some days, we want them to reconcile; others, we want them to leave. Anyone grappling with the decision whether to divorce, or whether to leave a partner, knows the repeating cycle of the painful back-and-forth only too well. As viewers of The Split, we share in their confusion and their disappointment.

I recommend this beautiful show for anyone contemplating divorce or anyone who has been through a divorce. I recommend this show to fellow divorce lawyers who strive to offer clients a “good divorce.” I recommend this show to anyone searching for the definition of a “good divorce,” or striving to design a “good divorce” for themselves and their children.

“Be brave. Don’t be afraid. Who knows what you might find on the other side?”
—The Split

Watch the show on Hulu.

Spouses’ Election to Keep Married Name

In the United States, your surname may give you a sense of self and of belonging. For women who have changed their names upon marriage, a subsequent divorce raises the question: should I take back my own last name? There are several reasons some women may prefer to keep their married surname after a divorce. For example, she might wish to have the same last name as the children, or there may be professional reasons that she identifies with the name, preferring not to start building a professional reputation from scratch. For example, Victoria Beckham rose to fame in the Spice Girls empire at the same time as her marriage to David Beckham. When someone mentions Victoria Beckham, nearly everyone knows her. However, if someone were to call her by her maiden name, Victoria Adams, few would know her. .

You may also opt to keep your married name for simpler reasons, such as it being easier to pronounce than your maiden name or because you remember the hassles of changing your name (including getting a new passport, driver’s license, and updating the Social Security Administration as well as all financial institutions). Many men ask us if it is possible to require their ex-wives to change their last names to their maiden names. It is not possible to require anyone to change back to a prior surname. This is only the choice of the person carrying the name, even if it was not her birth name.

For many women, the choice to change their last names back to their prior surname is an important and liberating step in the divorce process. For some women, taking back their identify from before the marriage is critical to the divorce process. Taking someone’s last name upon marriage is a symbol of unity, and many wish to sever the legal and emotional connections with the former spouse upon the divorce. Please note that name changes upon divorce are not automatic. If you wish to change your last name, you may do so as early as the day after you file for divorce. You can also do so after the divorce is granted. We can help you through the process and answer any questions you have regarding this important decision.

What is the “Right of First Refusal” in custody cases?

The Right of First Refusal is a clause that many parents include in custody agreements. The provision requires that the custodial parent, if she cannot be with the children during her scheduled time, must first offer the other parent the opportunity to be with the children before seeking third-party childcare assistance.

For instance, let’s assume Mom is scheduled to have custody of the children Thursday through Sunday. However, she has a work event on Thursday night that she must attend. Rather than calling a babysitter to watch the children on Thursday night, she must first reach out to Dad to let him know that she cannot be with their children during her scheduled time and will need to call a babysitter. If Dad is free on Thursday night, he has the option to spend the time with the children in lieu of a babysitter. Dad is not obligated to take the time, of course. The Custody Order assigns the time to Mom and not to Dad, so he has no obligation to be there on Thursday night. However, if he is free and wants to take the extra time, he can do so with the Right of First Refusal.

The Right of First Refusal is important for several reasons. First, it helps to give each parent as much time as possible with their children. Also, importantly, the provision allows for the parents to be the first choice to watch children in lieu of babysitters. Depending on the parents’ relationship with one another, the Right of First Refusal can help encourage co-parenting and better communication.

There are some things to consider before adopting the Right of First Refusal in your Custody Order. First, and paramount – is the extra time in the best interest of your children? Secondly, is the relationship between you and the other parent healthy or will the additional obligation to communicate more frequently put a strain on an already difficult relationship? Finally, some parents actually use the Right of First Refusal provision to harm the other parent in court or to keep track of how often the other parent has conflicting obligations. In cases where the other parent is spiteful, instituting the Right of First Refusal may not be in the best interest of your children. We always ask our clients to consider their personal relationships within the family when making a decision about whether to add the Right of First Refusal to the Custody Order.

In Pennsylvania, custody agreements can be modified. Therefore, if your Custody Order does not include the Right of First Refusal and you think it would benefit your children, we can help you modify the Order to include it.

Medical Marijuana in Custody: Preventing Your Child Custody Rights from Going Up in Smoke.

Medical Marijuana is a trending treatment for a number of serious medical conditions. Although Federal law classifies marijuana or cannabis as an illegal hallucinogen, 33 state legislatures, including Pennsylvania, have enacted medicinal marijuana laws[1] including the Pennsylvania General Assembly which enacted the Medical Marijuana Act that took effect on May 17, 2016.[2]

The Medical Marijuana Act allows licensed medical professionals who meet special requirements and appear on the state registry to recommend medical marijuana as a treatment to serious medical conditions enumerated in the statute, such as cancer, epilepsy, inflammatory bowel disease, and glaucoma.[3] Like all medications, there may be some adverse side-effects, but doctors have weighed these side effects against the potential benefits and recommended the treatment anyway. There may be special conditions placed on a patient’s medical marijuana such as limiting the duration of use or the form by which a patient may take the medicine.[4] Adhering to any requirements or limitations is important, not only to a patient’s health, but also his or her pending custody matter.

The Medical Marijuana Act itself includes a specific provision relating to child custody matters. The Act states, “the fact that an individual is certified to use medical marijuana and acting in accordance with this act shall not by itself be considered by the court in a custody proceeding”.[5] In determining the best interest of the child with respect to custody, the Court considers the provisions of the 16 custody factors enumerated in 23 Pa. C.S.A. § 5328.

One of the sixteen factors courts consider in determining the best interest of the child is a parent’s drug use. Typically, if there is a concern about a parent’s drug use, the court may order one or both of the parties to submit to drug tests, to determine if drug or alcohol use is a problem. The courts may consider a positive drug test as a reason to limit a parent’s physical custody.

So, what happens if a parent has a medical marijuana prescription? The most important thing to remember when dealing with custody matters, is that every case is different, and the court will look at all the facts presented in your particular situation to make a decision. This means that just because a judge made a ruling in one case, does not mean he or she will rule the same way in another. Even though it is the cardinal rule for all custody matters that every case is unique, it is especially important to keep in mind when appearing before the court with a medical marijuana prescription. Because medical marijuana is still relatively new, Judges are still figuring out how to deal with it in terms of child custody.

Courts have been inclined to treat prescription marijuana like other prescriptions where the court considers the side effects of the treatment against the best inters of the child and the custody schedule. For example, if Father injured his back at work and was temporarily prescribed medication to manage his pain, the court would not, on that fact alone, limit that parent’s custodial time. However, the court may consider the side effect of those types of medications and include a provision in the order that states Father is not to be under the influence of that medication at custodial exchanges because it may impair his ability to operate his vehicle safely. If, several months later, Father is still taking pain medication or has unilaterally increased the dosage he takes without consulting his doctor, the court may consider those types of facts and decide to limit Father’s custodial time.

The same holds true for medical marijuana. While the Act clearly states that the prescription itself shall not be considered in making child custody determinations, it does not mean that it will not play a part in the over all consideration of the best interest of the child. Parents are still expected to provide appropriate care for their children and maintain their safety and well-being. If a parent’s prescription cannabis impairs a parent’s ability to care for their child, they may see a reduction in their physical custody. Furthermore, compliance with one’s prescription is important. A court can still order a parent who uses medical marijuana to submit to a drug test and the court can consider those results against the doctor recommendation as a way to check for use or abuse of the medication. In addition, there are rules regarding the storage and consumption of medical marijuana. If a parent does not comply with those rules, a judge may consider that in making a custody determination.

In addition to complying with one’s prescription, one must also comply with the current custody orders of the court. If a previous court order prohibited the use of marijuana, and then a parent obtains a medical marijuana certificate, the court can still find a parent violated a custody order even if he or she were complying with the doctor’s recommendation. The nuances of a particular case can have a significant impact on how the court treats a parent’s medical marijuana certificate.

If you are concerned about how your own medical marijuana prescription may impact your custody case, or you have concerns that your child’s other parent is misusing his or her medicinal marijuana certification, you should contact a Pennsylvania Family Law Attorney to discuss the specifics of your case.

[1] https://www.webmd.com/a-to-z-guides/qa/what-us-states-have-legalized-medical-marijuana and Comprehensive Drug Abuse Prevention and Control Act of 1970

[2] 35 P.S § 10231.101

[3] 35 Pa. C.S.A §§10231.101 – 10231.103

[4] 35 Pa. C.S.A §§ 10231.501 — 10231.510

[5] 35 Pa. C.S.A §§ 10231.2101 — 10231.2110