Obesity as Custody Factor

The issue of obesity among both children and adults is a regular topic in the news. It is also being addressed more and more often in the realm of family law. Parents in a custody dispute may allege the other parent is not a fit parent because of their own weight problems. The argument then follows that the parent will not be able to provide proper care for the child because he or she won’t be able to keep up with the child. Alternatively, parents may hurl allegations at each other because of the child’s weight problems. Here, arguments may be made that a parent is not looking out for the best interest of the child because he or she allows the child to eat predominantly unhealthy things or doesn’t promote adequate exercise. This failure to ensure an appropriate diet and active lifestyle puts the child at risk for developing serious medical problems such as diabetes or heart disease. It may also subject the child to additional ridicule from their peers damaging their self-esteem and psychological well-being.

Pennsylvania specifically alludes to a child’s physical well-being as one of the factors to be considered in making a custody award based on the child’s best interests. This factor was added when the custody laws were revamped effective January 2011. 23 PA CS §5328 (10) mandates the court to consider which party is more likely to attend to the daily physical, emotional, developmental and special needs of the child. Accordingly, it is relevant to discuss concerns with one parent’s weight and its potential to hinder their ability to provide basic hands-on care for the child. It is also relevant to raise the issue of how a party’s parenting is or isn’t beneficial to the child’s physical well-being. Child obesity is becoming a real epidemic with potential lifelong consequences and a Judge would be remiss not to consider which parent is taking the appropriate measures to provide a healthier lifestyle for their child.

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Pre-Nuptial Agreements

Given the statistics on the likelihood of divorce, many couples are opting to enter into pre-nuptial agreements to protect their rights in the event of a divorce. A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement would provide that each party retains anything they acquire in their own name and that anything marital or acquired jointly will be divided based on the divorce laws. A pre-nuptial agreement may also provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage.

Since a pre-nuptial agreement is a contract is must meet several requirements to be held valid. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. For these reason, the agreement should be signed well before the wedding to avoid any challenge to the agreement that a party was forced to sign because the wedding date was fast approaching. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation. Any challenge under the above listed causes of action will require a fact-based analysis with the standard being a preponderance of the evidence, or more likely than not. Overall, it is difficult to overturn a pre-nuptial agreement once entered into, however, it can provide some peace of mind if the parties do not end up living happily ever after.

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Health Insurance as part of Support

One frequent question in the context of divorce is what will happen to health insurance coverage in the context of a divorce. Generally, a spouse cannot drop the other spouse during the context of the divorce. Health insurance is often considered in the context of support and spouses are obligated to provide support for each other during the marriage. Once divorced, however, you cannot remain on your ex-spouse’s health insurance plan. If you are unable to obtain alternate health insurance on your own right away you can look into COBRA coverage.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives the employee providing the health insurance and their ex-spouse who has lost their health benefits the right to choose to continue health benefits for a limited period of time and under certain circumstances. A spouse who elects COBRA coverage following a divorce may be required to pay the entire premium for coverage, up to 102 percent of the cost to the plan. Additionally, COBRA coverage is only temporary and generally only lasts for 36 months. Only employers with 20 or more employees in the prior year who provide group health insurance are required to abide by COBRA and provide the opportunity for a temporary extension of health coverage.

If there are children between the parties, the children may remain under the health insurance coverage presently provided. There may be an adjustment to any child support award based on who is paying the premiums on the health insurance for the children. There is a 60 day window following the termination of coverage in which to notify the health insurance provider whether or not you are pursuing COBRA coverage.

Support

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Social Security Benefits in Divorce

A party in divorce may be entitled to collect social security benefits based on the earnings history of their spouse. Your spouse must already be at least 62 years old and receiving their social security benefits. Several conditions must be met before a party is entitled to their spouse’s benefits. First, you must have been married for at least ten years. Second, you must presently be at least 62 years old. There is an exception to the age requirement if your spouse is deceased in which case you can start collecting at 60 years old or 50 years old if disabled. Third, your social security benefits based on your earnings history must be less than your spouse’s benefits. You can only receive one social security benefit and should opt for whichever is higher. Finally, you cannot be presently married. There are exceptions to this rule as well. Specifically, remarriage is permissible if it occurs after age 60 or age 50 if disabled.

Be advised that even if you elect to receive benefits based on your spouse’s social security rather than your own, it will not in any way reduce your spouse’s benefits. You spouse will continue to receive the full amount of his or her benefit. In addition, you would be entitled to receive 50% of the benefit your spouse is receiving. If, however, your spouse pre-deceases you, you are then entitled to receive 100% of your spouse’s benefits. Further, any children under 18 at the time of your spouse’s death would be entitled to benefits based on your spouse’s benefits as well.

Divorcing After 50

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Military Deployment as Custody Factor?

The US House of Representatives just passed a bill that would prohibit family courts from considering military deployment as a factor when awarding custody. The bill was introduced by Representative Michael Turner, R-Ohio, and will now be headed to the US Senate for a vote. The rationale behind the bill is that individuals who are ordered into deployment by one branch of government should not be punished in the form of adverse custody decisions by another branch of government. Presently, family court judges can cite deployment as a factor in determining a custody order. The bill would only prohibit deployment as a factor if the individual being deployed cannot bring family members with them on their assignment. Further, the assignment must be between 60 days and 18 months in length.

There is already a law in place protecting military members in the context of divorce. Persons in the military service of the United States are specifically protected by the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SCRA), which, by making provision for the temporary suspension of legal proceedings and transactions relating to them, is designed to ensure that their civil rights are not prejudiced during their terms of service. The SCRA is not, however, a blanket moratorium on all divorce actions against servicepersons. Its protections only come into play when the defendant is prevented or hindered by his or her military service in defending the divorce action. An affidavit of non-military service is a commonplace requirement in a divorce action wherein the plaintiff must submit a signed affidavit indicating the defendant is not in military service in order to move the divorce forward. The defendant can waive the protections of the SCRA and proceed with a divorce while in military service if they so choose.

Military Divorce

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