News

By: Tim Rayne, Esquire

On May 6, 2020, Pennsylvania Governor Tom Wolf signed an Executive Order granting broad civil immunity from malpractice lawsuits arising out of care provided to Covid-19 patients.

The immunity covers individual healthcare workers including doctors, nurses, hospital technicians, nursing home employees and other healthcare workers who have been involved in providing treatment to COVID-19 victims. The Order extends the civil immunity from liability afforded to state employees to individual healthcare workers, making them immune from claims of injury or death caused by their carelessness or negligence in the treatment of COVID-19.  This means that individual healthcare workers cannot be sued for malpractice arising out of negligent care of  COVID-19 patients.

The immunity for  healthcare providers covers only negligent/careless conduct and the providers are not immune from claims for willful misconduct (like assault or sexual assault) or gross negligence, which is negligence far beyond simple carelessness.

In addition, the Executive Order does not grant immunity to nursing homes or hospitals but, instead, only to individual healthcare workers. This means that facilities can still be held accountable and victims can still be compensated for injuries caused by negligent conduct.

Healthcare industry advocates argue that the Executive Order should have gone farther by granting comprehensive immunity to both individual healthcare workers and hospitals and nursing homes during this COVID-19 crisis.

However, victims rights advocates counter that comprehensive immunity is unfair because it leaves the victim of negligent care to bear the burden of their injuries rather than holding the negligent people and entities accountable.  Also it would be particularly unfair given that hospitals and nursing homes have protected themselves by purchasing insurance which means that the immunity would result in a windfall for the insurance companies by barring claims.

In the end, this might be a fair compromise because it protects potentially overworked doctors and nurses from individual liability during this national crisis but still hold holds facilities accountable for their negligence and does not leave the families of victims stuck with the consequences of negligent care.

Starting immediately the Chester County Family Court will resume custody conciliation. For the foreseeable future  conciliations are going to be scheduled as video conferences. Scheduling notices will be sent out soon, but to start, the courts are looking to begin scheduling new conciliation dates for cases previously scheduled for  the week of March 23, 2020.

Mediation with court approved and appointed mediators and parenting classes continue to be required and shall proceed forward online as well. The classes can be completed on a desktop, laptop, tablet, or phone. Click here for information on how to enroll into the course and access the program.

The following is the first in a series of articles exploring the effects of the COVID-19 pandemic and resulting economic crisis on the process of dividing property during a divorce, known as “equitable distribution”. 

For people navigating the complexities of a divorce, each day can be unprecedented in emotional and logistical strain. And for a society living under the health and economic stressors of a novel viral pandemic, life can feel rather unmoored as well. Given the great uncertainties and overwhelming urgency of the present, this series of articles seeks to unpack and explain the process of equitable distribution as it pertains to divorce proceedings and within the context of the new realities of the COVID-19 pandemic.

Over the course of a marriage, couples accumulate both assets and liabilities that need to be divided between partners in the event of a divorce. Together, a couple’s assets and liabilities are referred to as the marital estate and often includes cash, investment and retirement accounts, residential and/or commercial real estate, cars, personal property, insurance policies, business interests, and debt of all kinds.

Equitable distribution normally requires that the fair market value of certain assets be determined so that they can be divided between the parties. Even under normal circumstances, this process can be challenging because divorcing couples may not agree on the value of certain property. The value of property can also change over time, either appreciating or depreciating over the course of the marriage. In normal conditions, the evaluation and division of assets in a divorce already includes a degree of uncertainty that often requires the input of a neutral third-party professional. Given the current economic instability, the value of shared assets and thus the process of equitable distribution are likely to be impacted in significant but unpredictable ways, adding even more tension to divorce proceedings.

Similar to the evaluation of assets, divorcing couples must also divide liabilities, like debt, acquired during the marriage. Liabilities are generally measured as of the date of legal separation, or when the parties are living “separate and apart” from one another and no longer share the typical rights and duties of a married couple.  In equitable distribution, liabilities are generally divided in proportion to the parties’ ability to bear them.  Again, the widespread economic instability created by the COVID-19 pandemic alters a variety of otherwise more stable assumptions that are typical when dividing liabilities. Additionally, the need to quarantine and the limited ability to adjust living arrangements because of public health concerns can complicate the concept of living “separate and apart”.

A divorce under normal circumstances can throw parties’ lives into an upsetting state of uncertainty. Current economic and public health concerns during this pandemic have created a variety of new challenges that only intensify an already stressful divorce process. Follow this series as our attorneys work to anticipate and help you navigate the many unprecedented challenges we now face.

Recently, there has been some discussion in the news regarding a potential uptick in domestic violence.  Here are some frequently asked questions concerning domestic violence and Protection from Abuse (“PFA”) Orders.

1. What is domestic violence?

In Delaware, domestic violence is defined by statute under 10 Del. C. 1041.  “Domestic Violence” is abuse perpetrated against a family member or an intimate partner.  This definition is fairly broad, encompassing those in a substantive dating relationship and those with children in common.  “Abuse,” is also defined under 10 Del. C. 1041, and is broadly defined as follows:

“Abuse” means conduct which constitutes the following:

a. Intentionally or recklessly causing or attempting to cause physical injury or a sexual offense, as defined in § 761 of Title 11;

b. Intentionally or recklessly placing or attempting to place another person in reasonable apprehension of physical injury or sexual offense to such person or another;

c. Intentionally or recklessly damaging, destroying or taking the tangible property of another person;

d. Engaging in a course of alarming or distressing conduct in a manner which is likely to cause fear or emotional distress or to provoke a violent or disorderly response;

e. Trespassing on or in property of another person, or on or in property from which the trespasser has been excluded by court order;

f. Child abuse, as defined in Chapter 9 of Title 16;

g. Unlawful imprisonment, kidnapping, interference with custody and coercion, as defined in Title 11; or

h. Any other conduct which a reasonable person under the circumstances would find threatening or harmful

2. What should I do if I am a victim of domestic violence?

First, you should take steps to protect yourself and your children,, such as, but not limited, calling the police.  Second, you should contact an attorney.  Third, you should take steps to protect and preserve evidence, such as photographs, text messages, recordings, medical documents and the like.

3. What is a PFA?

A PFA is a civil restraining order that prevents an actual or alleged perpetrator of domestic violence from contacting the victim, usually for a period of a year.  Exceptions to the no-contact order are often included to allow parties to communicate regarding children in common and joint finances.  Violating a PFA Order is a crime.  A PFA Order may also contain provisions for other relief on a temporary basis, including possession of a home and/or vehicle, support for a spouse or child, and custody.

4. How does the PFA process work?

The process begins with a petitioner filing a PFA Petition claiming that they have been a victim of domestic violence.  Often, the petitioner will seek an ex parte order, which is an order obtained without notifying the other party or affording them the opportunity to respond based upon a likelihood of immediate and irreparable harm.  Because the other side is not notified nor given a chance to respond, these orders can only last for a brief period of time—usually two weeks or less.  An ex parte order, like a final PFA Order, can make provisions for custody, support, and temporary possession of the family home.  Usually about two weeks after the PFA filing, there will be a final hearing.  At that point, the petitioner can dismiss their petition, negotiate a consent PFA or other type of agreement, or have a hearing on the merits.  If the parties consent to a PFA or if one is issued after a hearing, matters concerning support, custody, and possession of the home cannot last for more than one year.

5. What is the difference between a consent PFA and a PFA issued after a hearing?

While a consent PFA is enforceable in the same manner that a PFA issued after a hearing is, a consent PFA does not make specific findings that abuse did or did not occur.  On the other hand, the Court does make factual and legal determinations that abuse did or did not occur if a hearing is held.

Charitable organizations are facing significant hardships due to the COVID-19 crisis. Fortunately, the newly enacted Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) provides new tax incentives for charitable giving, encouraging individuals and businesses to support their favorite charities during this time of need. The CARES Act specifically provides a new above-the-line deduction for non-itemizers and increases the charitable deduction limitations for other donors.

If You Take the Standard Deduction

For 2020, the standard deduction is $12,400 for single individuals and $24,800 for married individuals filing jointly.  Normally you need to itemize to get the tax-benefit of your charitable contributions.  However, if you take the standard deduction in 2020, the CARES Act allows each individual up to a $300 additional above-the-line deduction for cash charitable contributions.  If you itemize, you cannot take this new deduction.

If You Itemize

Individuals and corporations who itemize can now deduct more of their charitable contributions in 2020.  For individuals, the CARES Act replaces the 60% AGI (Adjusted Gross Income) limit for cash charitable contributions made in 2020.  Under the CARES Act, you can now deduct up to 100% of your AGI. For corporations, the CARES Act increases the charitable deduction limit to 25% of taxable income, up from a previous limit of 10%. Any donations over those amounts may still be carried over for 5 years and deducted later.

To qualify for the increased limits and new deductions, the contributions must be cash contributions made in the calendar year 2020. In addition, the contributions must be made to public charities – contributions to Donor Advised Funds and Supporting Organizations do not qualify.

If you have questions about the new tax provisions under the CARES Act, please contact Tara Stark at [email protected].

This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

The Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) was signed into law by President Trump on March 27, 2020, primarily to assist individuals and businesses with the financial implications of COVID-19. The CARES Act includes several provisions relating to retirement plans that plan participants should be aware of, including the waiver of required minimum distributions (“RMDs”), the extension of time to make 2019 IRA contributions, and changes to the rules for early distributions and plan loans.

RMDs Waived for 2020

Individuals age 72 and older are normally required to take minimum distributions from their retirement accounts each year.  However, the CARES Act states that individuals with defined contribution plans such as 401(k)s, 403(b)s, 457(b)s, and IRAs may skip their RMDs in 2020.  The waiver also applies to individuals who turned 70 ½ in 2019 and were required to take their RMD by April 1, 2020.  Individuals do not need to meet any COVID-19 qualifications to waive their 2020 RMD.

The CARES Act also addresses inherited retirement accounts, specifically those inherited by “non-designated beneficiaries” (namely charities, estates, and non-qualified trusts), that typically must be fully distributed within five years of the account owner’s date of death. The CARES Act provides that if one of the five years falls within 2020, the beneficiary gets an extra year, essentially turning the five-year rule into a six-year rule.

The CARES Act does not directly address those who have already taken their RMD for 2020, however, if you took your RMD within the last 60 days, you may be able to roll over that amount to an IRA to avoid a taxable distribution in 2020.

Deadline for 2019 IRA Contributions Extended

Taxpayers normally have until April 15 (the same as tax day) to make the previous year’s IRA contributions.  Now that taxpayers have until July 15, 2020 to file their 2019 income tax returns, the Treasury Department has also given taxpayers until July 15 to make 2019 contributions to IRAs. The maximum annual IRA contribution is $6,000, or $7,000 if you are age 50 or older.

Early Distributions and Loans

The CARES Act also expands access to early distributions and loans for qualifying individuals impacted by the coronavirus.

Individuals qualifying for relief include the following:

• Individuals diagnosed with SARS-CoV-2 or COVID-19 by a test approved by the CDC,
• Individuals whose spouse or dependents are similarly diagnosed, or
• Individuals who experience adverse financial consequences as a result of being quarantined, being furloughed or laid off or having work hours reduced due to SARS or COVID-19, being unable to work due to lack of child care, closing or reducing hours of a business owned or operated by the individual, or other factors as determined by the Secretary of the Treasury.

In general, early withdrawals from retirement plans by individuals under the age of 59 ½ are subject to a 10% early withdrawal penalty.  However, for qualifying individuals, the CARES Act eliminates the 10% penalty for up to $100,000 of retirement plan distributions.  Income tax will apply to the distributions, but any income tax owed may be paid proportionally over three tax years, beginning with this year.  The individual may also “pay back” the coronavirus distribution at any time during the three-year period following the date of distribution, without regard to annual contribution limits.

Additionally, those affected by COVID-19 who wish to borrow from their qualified employer plan can now take out a larger loan.  During the 180-day period following March 27, 2020, the amount that can be taken as a loan from a qualified employer plan is increased to the lesser of $100,000 or 100% of the individual’s vested account balance.  Loans were previously capped at $50,000 or 50% of the vested account balance.  In addition, for those who have outstanding plan loans, if the repayment due date falls after March 27, 2020 and before December 31, 2020, the due date will be delayed by one year.

We expect the IRS to issue additional guidance in the coming days and weeks to address questions raised by the new CARES Acts provisions.  We will be monitoring that guidance closely and providing additional updates. If you have questions about how the CARES Act impacts your retirement accounts please contact Tara Stark at [email protected].

This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.