Mar 062018
 

It is never too late to take personal stock of major life decisions. These decisions encompass who will take care of my legal and financial decisions if I cannot express them, who will make health care decisions for me if I cannot express them, who will be a recipient of my financial bounty upon my death. Rest assured that there are three documents that address each of these decisions respectively: Durable General Power of Attorney, Durable Health Care Power of Attorney and a Will.

First, a Durable General Power of Attorney (or POA) is a document that effectively assigns your decision making powers, relating to legal and financial issues, to another person. The term “durable” means that this document stays valid even after you become incapacitated. There are a myriad of powers you may want to bestow to your agent. You may bestow broad powers or you may bestow very limited, specific powers. For example, you may want to allow your agent to make gifts of your assets to family members; however, you may not want your agent to change beneficiary designations on your financial accounts. You may name a sole agent or joint agents, as well as alternate agents, in the event your primary agent is unwilling or unavailable to act. A Durable General Power of Attorney is effective after you, the principal, and your agent sign the document.

Second, a Durable Health Care Power of Attorney operates the same way as a General Durable Power of Attorney, where you assign decision making powers to another person (your agent). The difference between a Durable Health Care Power of Attorney, and a Durable General Power of Attorney, is that the former specifically concerns health care decisions, if you are unable to make them. What type of medical treatment do I want? Do I want artificially administered food or water if I am unable to take them by conventional means? These questions are laid out in advance, directing your agent to communicate such decisions on your behalf. A Health Care Power of Attorney is effective only when the principal (you) suffers from an end-stage medical condition or are permanently unconscious, rendering you incapable of communicating your own medical decisions.

Finally, a Will, differs from the above documents because it is effective only upon your death. The primary purpose of a Will is to give your assets that pass under your Will to the individuals or charities of your choice. Non-probate assets, or assets that do not pass under your Will, are those that are governed by beneficiary designations that make. For example, when you open an IRA you typically are asked to designate beneficiaries, or recipients, of that asset upon your death.

Your “estate” includes all assets and debts you own at the time of your death. A Will may also address who will care for your minor children upon your death (guardian) and who will manage assets held in trust for your children under your Will (trustee). A Will can be as specific, or as general, as you want it to be. Altogether, a Will is meant to make clear to your loved ones what is to be done with your estate after your death.

Here, at Fries Law Office, we have multiple decades of experience to assist you in your estate document needs. Please contact us if you need direction and assistance with any of the above. Remember that major life decisions can be addressed well in advance of a life-altering event.

Nov 152016
 

On October 4, 2016, Governor Tom Wolf signed into law Act 102, which has major implications upon divorces in Pennsylvania.

In Pennsylvania, there are two general grounds to establish a divorce: fault and no-fault. Fault divorce can be secured on various grounds, such as by demonstrating that your spouse has committed indignities in the marriage. Examples of indignities are abuse, neglect, abandonment and extramarital affairs. Securing a divorce on fault grounds is costly, both time-wise and monetarily.

Alternatively, under present law, a no-fault divorce can be secured by either demonstrating that both spouses consent to the divorce or after waiting two-years from the date of separation. A consent divorce can be obtained after both parties wait 90 days from the filing and service of the Divorce Complaint. Once 90 days pass, both parties may file the necessary documents with their respective County Court, and generally, the Court will grant the divorce.

Under current law, if one spouse does not wish to consent to the divorce, the other spouse would have to wait two years from the date of separation, before obtaining a divorce. For example, if you separated from your spouse June 1, 2016, and your spouse did not wish to consent to a divorce, you would have to wait until June 1, 2018 before obtaining a no-fault divorce.

However, Act 102 reduces the two-year date of separation period to one-year. This law only applies to those divorces where separation has occurred after the effective date of the law. Therefore, only those separations occurring after December 3, 2016 can take advantage of the new one year date of separation requirement.

Despite the reduction in wait time, it is always important to settle any economic issues each spouse may have against the other prior to finalizing their divorce. This means that all questions as to division of marital assets and liabilities (equitable distribution), alimony, and responsibility for counsel fees must be determined before getting a divorce. If these economic issues are not resolved, prior to obtaining a divorce, each spouse’s right to claim them are extinguished.

Divorce is an arduous episode in any person’s life. Therefore, it is imperative that you seek effective counsel before and during this process. We, at Fries Law Office, have multiple years’ experience in representing clients in divorce matters, including the protection of your economic interests.

Do not hesitate to contact us.

May 132016
 

On April 21, 2016, Pennsylvania Governor Tom Wolf signed into law House Bill No. 12 (2015 Session). This law provides a spouse, who is a victim of a personal injury crime committed by the other spouse, an easier route to obtain a divorce.

Under the existing provisions of the Pennsylvania Divorce Code, one spouse cannot obtain a no-fault divorce from his/her spouse unless both parties consent after a ninety (90) day waiting period or, if one spouse does not consent, following a two year separation. Under existing law, if a spouse physically abuses the other and does not wish to consent to a divorce, a victim spouse may be incapable of divorcing his/her aggressor spouse until two years passes. However, this new law provides a way of escape.

Under the new law, an aggressor spouse’s consent is “presumed where that party has been convicted of committing a personal injury crime against the other party.” (Rev. 23 Pa.C.S.A. § 3301(c)(2)). A personal injury crime may include assault or sexual offenses. The new law also forbids a Court from requiring a victim spouse to attend mandatory counseling when he/she has a protection from abuse order against his/her spouse or when said spouse is the victim of a personal injury crime.

This law becomes effective on June 11, 2016, and permits abused spouses who are victims of a personal injury crime, committed by their spouse, to obtain a divorce without the consent of the abusing spouse, or without having to await a two year separation.

If you are a victim of physical spousal abuse, you have the legal right to obtain protection. You should not only call the police, but you should also consult with an attorney.  The attorneys at Fries Law Office are experienced in family law and are ready to assist you in ceasing the marital ties between you and your abusive spouse. Protect yourself and contact us if you have questions concerning your rights as a victim spouse.

Apr 052016
 

You want to build a new home. You hire ABC Builders to design and construct your home, and sign a contract, in which the builder agrees to give you a warranty at closing. Several months later, the home is built, and by all appearances, it is a work of perfection. Now, comes the day – closing day. Among the many documents you are asked to sign is a builder’s limited warranty.  You come across a paragraph entitled “Binding Arbitration Clause,” the content in bold and CAPITAL letters. You think nothing of it and sign the dotted line.

Fast forward five years and you have problems not only in the foundation, but also in the roof of your home. You noticed these issues when you moved in, but thought nothing of it. You contact ABC to express your concerns. They do nothing about it because they say it is not covered by their warranty. You hire a lawyer and you sue in Pennsylvania Court. Now, the Court must consider the validity of the following arbitration clause:

“ALL DISPUTES ARISING OUT OF THIS CONTRACT, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY XYZ ARBITRATION CORPORATION. THE PLACE OF ARBITRATION SHALL BE IN DALLAS, TEXAS AND TEXAS LAW SHALL APPLY. JUDGMENT BY THE THREE-PERSON ARBITRATION PANEL, WHICH PANEL MEMBERS SHALL BE CHOSEN BY ABC BUILDERS, SHALL BE BINDING.  YOU MUST PAY ALL ARBITRATOR FEES IN ADVANCE BEFORE YOUR HEARING WILL BE SCHEDULED, AND YOU ARE RESPONSIBLE FOR ALL COSTS OF ARBITRATION.”

You may be surprised to realize that arbitration clauses of this nature are generally enforceable, unless  the Court finds that the arbitration clause is unconscionable; that is, inherently unjust or unfair.  Binding arbitration clauses are becoming increasingly common in major transactions, such as new home construction contracts, and in day-to-day transactions such as credit card agreements.  In the example above, you may be able to convince the Court that having your Pennsylvania case resolved in Texas, at your expense, is inherently unfair and “unconscionable.”  However, what if your home builder has a clause that the arbitration hearing will be held in Philadelphia, or New York, or even in the community where you live, and that the expense of the arbitration proceedings, including arbitrator fees, will be divided between you and your builder?  You may still have a serious problem because the arbitrators may have a bias, whether conscious or unconscious, in favor of the builder.  Even worse, if you disagree with the decision of the arbitrators, you will have no right to appeal.

Home builders, credit card companies, nursing home facilities and other corporate entities are using binding arbitration clauses more and more in their favor as a way to protect themselves from Court proceedings.  As a consumer, this deprives you of basic rights, including the right to take your home builder, your credit card company, or your store to a Court in your community, and in having your case decided by a jury consisting of individuals from your community.  Binding arbitration clauses also deprive you of your right to file your own lawsuit, without a lawyer, with your local Magisterial District Judge for disputes up to $12,000.  Arbitration clauses deprive you of these basic consumer rights, and, in some cases, prevent you from resorting to the Courts when you have suffered serious injuries.

As a consumer, your first and most effective defense, and solution, is to READ THE CONTRACT.   If you do not understand the contract, and if the sales person tells you that the language of the contract is just “standard,” do not accept this explanation.  “Standard” contract language can have serious and devastating consequences for you.  If you see a binding arbitration clause in a contract or warranty, demand that it be removed.  If you are entering into a contract with a builder for the construction of a new home, demand to see the builder’s warranty before you sign the contract to see if the warranty contains binding arbitration language.  If the sales person refuses to remove binding arbitration language from the contract or warranty, especially where the language is one-sided in favor of the company, do you really want to do business with this company, especially for something as important as your home?  Remember that many sales persons will tell you what you want to hear to get you to sign the contract, but you will be bound by the language of the contract.  Generally, verbal assurances are legally meaningless.

In some cases, the arbitration of disputes is a preferable alternative to Court proceedings, where the arbitrators are truly impartial, where the parties have an opportunity to jointly select arbitrators, and where the rules and costs are understood in advance.  However, in the context of consumer contracts for new homes, credit cards, nursing homes and other consumer necessities, it is not likely that the mandatory arbitration provisions in the corporate contracts will be favorable to you.

If you are unsure regarding your rights under a contract, you should consult with your attorney.  The attorneys at Fries Law Office are experienced in contract negotiations and the resolution of contractual disputes, whether by arbitration or in the Courts.  Protect your rights as a consumer, and contact us if you have questions or problems in enforcing your rights as a consumer.

Mar 032014
 

Have you ever wanted to convert a portion of your family home into an art gallery, or wanted to extend the hours of operation for your business or wanted to construct a gazebo that would come too close to your neighbors yard? If you answered yes to any of these questions, you have just drifted into the “Zoning Zone.”

Zoning approval usually starts at your local zoning office, but if the zoning office denies your application, your next step would be the Zoning Hearing Board. The Board decides cases based on the Zoning Ordinance of your respective municipality. Zoning Ordinances list land uses which are permitted, those which are prohibited and those which are allowed only under certain circumstances, all for the sake of the public welfare, safety and health. Like anything else, zoning law basics can be best explained through example, but it is important to note that each municipality’s zoning laws may be different.

In the city of Allentown, building a freestanding tower in an industrial district is usually permitted, but building a freestanding tower in a residential district would be prohibited and would be allowed in a business district only if the applicant meets certain conditions. Of course, it goes without saying, if an Applicant wanted to build a tower in an industrial district, he would not need to go before the Zoning Board because, barring any unusual circumstances, his application would be approved by the local zoning office.

Generally, if you wanted to build a freestanding tower in a residential district, you would have to apply for a variance. A variance is a form of relief which allows an applicant to pursue his proposed use, but only if he can prove to the Board the Zoning rules work an unnecessary hardship on him. An Applicant can prove an unnecessary hardship if the land, where the tower is proposed to be built, is unique, or if there is no way the land can be developed in a way to conform to the Zoning rules. It is also important to note that the hardship cannot be created by the Applicant and any variance, if approved, must not alter the essential character of the neighborhood and must represent the minimum deviation from the rules at issue. Thus, with our freestanding tower example, the Applicant has a high burden to meet in order to build in a residential neighborhood – making a variance the hardest form of relief to obtain from the Zoning Hearing Board.

Depending upon the particulars of your local zoning ordinance, generally speaking, if you wanted to build a freestanding tower in a business district, you would have to apply for a special exception. A special exception is for uses permitted by the zoning rules, but certain conditions must be met before the Board can approve the application. Special exception applications are generally approved unless they result in a significant safety hazard, traffic hazard, health hazard or if they cause a detrimental effect upon the surrounding community. Zoning Boards are also within their power to impose reasonable conditions upon the applicant if those conditions would preserve the public welfare, safety and health. Thus, with our freestanding tower example, the Applicant does not have much of a burden to overcome. Assuming the tower does not pose a threat to the public or creates an unnecessary hazard, a Zoning Board would more than likely approve the application.

These are just two examples of zoning issues, and you should consult with an attorney regarding the specifics of your zoning matter. At Fries Law Office, we are here to help you with any and all of your zoning needs. Just give us a call for an initial consultation and we will be happy to assist you.

Jan 292014
 

If you are going through a divorce or contemplating a divorce, it is likely that you will receive information on the subject from well-meaning family members, friends, co-workers, or others. Just about everyone has been affected by a divorce, whether it be from one’s own divorce, one’s family members, or friends. Unfortunately, there are a number of legal “myths” or just plain misinformation that exists with respect to the subject of divorce.

One common misconception that we often hear is the belief that if you leave your spouse, you give up the right to claim your share of marital assets, or, on another variation, that you give up all rights if you move out and remain separated for more than thirty days. Another misconception regarding marital assets is that if one spouse is at fault (for example, if a spouse has engaged in an extra marital affair) that he or she gives up the right to share in the division of assets.

Pennsylvania law provides that all marital assets are to be divided upon divorce without regard to fault. The division of assets involves a two-step process. First, the Court must determine whether an asset is “marital property”. Generally, anything acquired during a marriage is “marital property”, regardless of whose name the asset is held. This includes jointly acquired assets, and  property held in the name of one spouse, such as pensions and other retirement benefits. Common exclusions to “marital property” include separate property acquired by a spouse through inheritance, or property that both spouses have agreed to exclude as marital property, as generally occurs when there is a pre-nuptial agreement.

The second step in the division of marital assets is the “equitable distribution” of marital property. This means that one spouse can be awarded more than 50% of marital assets depending upon a number of factors, such as the length of the marriage, the ages of the spouses, the contributions made by each spouse, and the relative incomes and separate assets of each spouse. For example, if one spouse is a highly paid executive and the other spouse has a modest income or no income at all with little prospects for future employment, an award of 55% of the marital assets or more in favor of the economically disadvantaged spouse is likely. On the other hand, if the economic positions of both spouses are relatively equal, equal division of marital assets is likely.

Another common misconception is that a divorce is automatically granted after a two year separation. This is incorrect. While it is true that the consent of the other spouse is not necessary after a two year separation, if either spouse has made a claim with the Court for the division of marital assets or for post-divorce alimony, these claims will have to be resolved before a divorce is granted, unless the Court agrees to “bifurcate” or separate the divorce from the economic issues.

One of the biggest and most costly misconceptions in a divorce is the mistaken belief that property matters or alimony matters can be addressed after a divorce is granted.  This is not the case! If you fail to make a formal claim with the Court for the division of marital assets or for alimony before a divorce decree is granted, you give up the right to make these claims. If you have any property issues with your spouse or any spousal support or alimony issues with your spouse, these must be addressed before the divorce is final. Unfortunately, we have found that many people fall into the trap of obtaining a no-fault divorce under the mistaken belief that they can address property and support issues later on. If you have not made a formal claim for the division of marital assets or for spousal support or alimony before a divorce is granted, it is too late.

If you or your spouse are considering a divorce, property matters and support matters must be addressed before your divorce is final. With over thirty six years of experience, we are here to provide you with experienced advice and representation. Please feel free to call our office to schedule a consultation to discuss these important issues so that your interests will be protected.

Jan 242014
 

Custody cases are inherently emotional. In my observation, parties are generally willing to negotiate their assets, but face turmoil when they have to decide who keeps the kids and when. Because of the bitterness and subjectivity evident in custody disputes, parties usually forget about the procedures entailed with such matters.

At the outset, it is necessary to identify the different custody rights a party may have. First, there is legal custody. Legal custody concerns a party’s ability to make decisions for their child. Obtaining school records, taking a child to the doctor, or signing them up for a sporting activity all involve legal custody. Generally, parties maintain shared legal custody of the child. Second, there is physical custody. Physical custody concerns where the child lives. There are several levels of physical custody which are determined by the amount of time a party has with his/her child: sole physical custody, primary physical custody, and shared physical custody. A party has sole physical custody when only he/she have the right to exercise physical control of the child. A party has primary physical custody when he/she have more time to exercise physical control of the child than the other party. Parties have shared physical custody when both parties have equal rights to maintain physical control of the child.

Lehigh County has a three-step process when it concerns Custody actions: (1) the Mediation, (2) the Custody Conference and (2) the Judge. Either party may elect to resolve their issues before a professional mediator, but it is not required. No attorneys or children are present for the mediation. It is an opportunity for both parties to air their differences and reach a compromise concerning who will  have the child and at what times. If a compromise can be reached, such an agreement becomes an Order of Court, which can be enforced by either party if the other party does not follow its terms.

The next level involves the Custody Conference, which is conducted by a Family Court Hearing Officer, or Master, within the Lehigh County Courthouse. Unlike a mediation, a Custody Conference usually involves the parties’ attorneys; but, the desired outcome remains the same: the attorneys discuss the issues before the Master in order to reach an agreement. If parties are not represented, then they would discuss their issues before the Master in hopes of reaching an agreement. If a custody agreement is not reached, the Master generates an Interim Order, usually maintaining the status quo, and makes its recommendations to the Court.

The Judge is the last step in attempting to establish custody rights between parties. If a party is represented by an attorney, the attorney prepares a Pre-Trial Statement in advance of a custody hearing, which lays out the reasons why their client deserves custody of the child. A hearing is scheduled by the Court, and the attorney (or party if they do not have an attorney) must present their case. The Judge decides the parties’ custody rights by determining what is in the best interest of the child. Once the Judge decides the matter, an Order of Court is issued where both parties must abide.

There are many twist and turns involved in a Custody suit, but you do not have to go it alone. Consider contacting our office for assistance and leave the stress of any Custody matter to us.

Dec 302013
 

A New Year brings a new website! Hello to all, I want to extend a hearty salutations to all of our website visitors. We, at Fries Law Office, have greatly anticipated the launch of our new site and we hope that you enjoy its features and content.

To get started, take a look at our attorney biographies and practice areas. Get to know our history so you can attain a better grasp of how we have been shaped into the legal practitioners we are today. We offer links to local, state and federal agencies which may be handy tools as you conduct your due diligence. And we even offer a way for you to contact our firm directly via email.

Attorney Fries and I are excited for the opportunities and challenges this upcoming year will bring. In this New Year, if you decide to obtain legal representation for a matter, please consider our firm to offer its services. Our philosophy is to make the legal process as smooth and as cost-effective as possible. We care about our clients! Here’s looking forward to a prosperous and pleasant New Year!