Step-parent and Kinship Adoptions

In Pennsylvania adoptions are handled through the Orphan’s Court. The rules and procedures for an adoption can be found in the Orphan’s Court Rules under Rule 15. Each county may have a set of local rules pertaining to adoption which should also be reviewed and complied with where necessary. The primary, and in this instance the initial, requirement is the adoption petition. An adoption petition should include the name, age, residence history, marital status, other dependants, occupation, religion, race, relationship to adoptee, and state of health of all petitioners as well as the natural parents. The petition should also state the name, sex, race, age, date of birth, place of birth, religion, and residence history for the adoptee. Each adoptee requires a separate petition. The intended name of the adoptee following the adoption should be included as well. Consents of the natural parents and an original birth certificate of the adoptee should be attached as exhibits. Consent of the natural parents is not required if you are involuntarily terminating their rights. If that is the case you should indicate why involuntary termination is appropriate based on 23 Pa C.S. 2511(a) within the petition. An often used provision under 23 Pa. C.S. 2511 is that the natural parent has failed to perform parental duties or evidenced a settled purpose of relinquishing parental claim to the child for a period in excess of six months immediately preceding the filing of the petition.

The birth certificate to be attached to the petition should be a “complete” or “long-form” birth certificate that includes the full names and ages of the natural parents at the time of birth. You must specifically request a birth certificate with the parents’ ages or you will likely not receive the correct birth certificate. All prospective adoptive parents must submit to a criminal and child abuse background check in the context of the adoption. This must be completed before the petition is filed and also included as an exhibit. Once filed, the petition must be served on all interested parties to give proper notice as required under the law. This would entail either personal service or service by certified mail, return receipt requested, at least 10 days prior to the date set for a hearing. Certification of service must be filed with the court either before or at the time of the hearing. At the hearing, the Judge will make sure all the requirements under the law have been met and there is no objection by the natural parent(s) whose rights are being terminated. If so, the adoption can be granted.

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Qualified Domestic Relations Order

A qualified domestic relations order, or QDRO for short, is a document often used in the context of splitting assets in a divorce to rollover a portion of one party’s retirement plan/benefit to the other party. QDROs are frequently utilized when pensions, 401ks and other retirement benefits have been classified as marital in nature and therefore up for distribution at the end of the marriage. The benefit of a QDRO is that it allows a tax-free transfer of the funds from one party to their new or soon-to-be ex-spouse. The receiving spouse would then be taxed as they withdraw the money as the tax laws provide. The exact nuances of how the plan/benefit is split and what options are available will vary based on the type of plan. For example, it may be that the party receiving a benefit as a result of a QDRO, often termed the alternate payee, cannot begin to do so until the initial participant in the plan begins to do so. The receiving party may or may not be able to designate an alternate successor if they die before the benefits begin to pay out. Or, the plan may provide the receiving party can only designate a survivor beneficiary that would be able to receive the balance of their portion of the benefit if they have started receiving the benefit before they die. The receiving party’s benefit may or may not be affected by the death of the initial participant or his/her early withdrawal penalty, if applicable.

It is always advisable to review the procedures for the specific plan you may need distributed to understand what their rules and policies are when it comes to splitting a participant’s benefits via QDRO in the context of a divorce. You will also likely benefit from having an attorney review the terms of the QDRO as well before signing off on it and submitting it to the plan. Finally, most plans have very specific requirements as far as how the language of the QDRO is to be worded in order for it to be accepted and processed. At a minimum, a QDRO should identify the parties, the plan at issue, and the amount going to the receiving party either as a lump sum or a percentage of the total benefit. It is wise to enlist the services of a company that routinely drafts QDROs to ensure the language is correct and all requirements are met.

Click here for more information on dividing retirement benefits.

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Jurisdiction/Venue in Divorce

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Under Pennsylvania law, one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes her meals, receives mail, and stores personal possession.

Generally, an action may only be brought in the county where one of the party resides. There are two exceptions allowing a divorce action to proceed in a different county including by mutual agreement of the parties in writing or by participating in the action started in a different county. If two divorce actions are commenced within 90 days of each other, the county where a party resides or where the last marital residence was located gets to determine which county should handle the matter. If neither county is the location of the last marital residence and no party resides in either county, the county that received a complaint in divorce first can make the determination as far as which county will proceed.

Parties should be careful about agreeing to, or participating in, divorce actions outside of their home counties if property distribution and/or other issues such as custody and support may be raised during the divorce. A divorce action may need to be transferred to the county where the bulk of the property is located or where the children reside for custody or where one of the parties reside for support. This will likely result in the expense of having to file a new complaint in the appropriate county as well as the expense and delay of petitioning to have the matter transferred. On the other hand, parties with no issues relating to the divorce may benefit from a cheaper filing fee by choosing a county other than their own for the divorce action.

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