There are two types of custody, legal and physical. In most instances, legal custody or the major decision making process and access to information is joint or shared. When people talk about shared or joint custody, they are usually referring to the physical schedule, i.e., where the child spends his or her time. The terms shared and joint are used interchangeably and mean that the child spends equal time in both parties’ homes. There are various schedules that could be construed in as a shared or joint custody schedule. Common schedules are week to week, rotating on the same day of the week, or two set week nights in one week and alternating the weekend as a Friday to Monday morning. These are not the only options, however, and parties need to look at their particular situation if they are attempting to come up with a joint schedule. It is important to look at maximizing the quality of time each parent has by considering work schedules of the parents and activities of the child as well as the distance between the two homes. As courts seem to be moving more towards a joint or shared custody schedule and away from one primary home, it is wise to explore all different possible scenarios for the best interest of the child.
Divorce brings up many issues and how to address each one. One very common issue is a car. The value of the car is usually determined at the time of the distribution and usually does not have significant value in most cases. Like other assets, it is the value of the car less any liens or loans on the car. Kelly Blue Book is often used to determine the value of the car. The person who keeps the car is responsible for the loan on the car regardless of whose name the loan is in at the time. In some cases, an indemnification clause can be added to the order or agreement whereby the party who keeps the car is responsible for the loan and if they fail to pay, the other party can seek recourse. In some cases, if the party driving the car is owed support, the other side may agree to deduct the amount of the loan payment from the support. Once the loan is paid off, it is important to include language regarding the transfer of the title. If one party is not agreeable to keep the loan in their name while the other party drives the car, then oftentimes, the balance of the loan can be paid off from other assets such as the refinance or sale of the home. In addition to being responsible for any payments on the car, whoever is in possession of the car is also responsible to keep the car insured. If the other side is paying the insurance if the vehicle is in their name, it will be credited back to them in either support or the divorce. Keep in mind that in a divorce, usage of the property oftentimes determines responsibility for payment of expenses.
When you are considering a divorce, it is often normal to obtain a divorce consultation to find out what to expect and what your rights will be. A divorce consultation may be done by phone or it may be done in the lawyer’s office. In order to make the best use of your time, you want to make sure that you are prepared. You want to keep to the facts and try to leave the emotional story out of the conversation so that you can obtain the best possible advice during the consultation. The basic facts will help the lawyer assist you in explaining your options and what to expect. If you want to have an idea of how much support you will receive or pay, then you will want to be sure to have the information on income for both parties, the cost of the mortgage, medical bills, child care and other expenses. You will also want to have an idea of what you think the custody arrangements may be. If you want to discuss options on how assets may be allocated, you will want to know approximately how much each asset is worth and what type of asset it is, such as a house, retirement account, etc.. If you find that you are too emotional, you may want to consider bringing a trusted friend who can assist you with during the consultation and provide you with emotional support. You may want to make a list of questions that you want to be sure to ask while you are in the consultation as oftentimes, it is overwhelming and you may find it difficult to think clearly. You should bring a pad of paper and pen so you can jot down notes during your consultation.
In a divorce, especially a long term marriage, a pension can be a very valuable asset. Assets accumulated during the marriage are marital assets, regardless of whose name the asset was accumulated in. Retirement accounts, including pensions are marital assets to the extent that they were acquired during the marriage. If a portion of the pension was accumulated prior to the marriage or after the marriage, the court will use a coverture fracture to determine the marital portion. This means the number of years married over the total years that the pension was accumulated will be marital. In addition, many pensions have a survivor benefit that should also be considered. A survivor benefit is an election when the pension is taken that reduces the monthly pension payment based on the election that is chosen. Depending on the value of the pension and the health of the parties, the divorcing spouse may want to pursue the survivor benefit whereby they secure a monthly payment in the event of pension earner’s death which could be various percentages of the monthly pension depending on the election that was taken. Instead of doing a percentage of the marital portion, in some cases, it may be beneficial to have the pension appraised and the survivor benefit appraised to offset the value with other assets. Usually a private company will be hired to do this type of valuation.
Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” This definition allows some room for interpretation on when it is necessary to request relocation. Some obvious examples would include a move which would potentially require a flight or at least several hours driving. If you had a schedule with a mid-week dinner visit or overnight, it would be impractical to travel that distance every time.
However, many moves are a much shorter distance and it can be argued that there is not significant impact on the existing custody order. Nonetheless, you may still find that the courts expect a relocation petition. For example, what if you only move ten minutes away from where you live now; does this count as a relocation? Here are a few scenarios which may weigh in favor of still classifying the move as a relocation and following the relocation protocol in 23 PA C.S. 5337: (1) Across state lines (2) Across county lines (3) A different school district. When in doubt, it is better to err on the side of caution and request relocation. In C.M.K. v. K.E.M., the court held that the mere fact of filing for relocation does not support a presumption that the requested move is in fact a relocation and the parties can still litigate if the move does significantly impact the other parent’s custodial rights. 45 A.3d 417, 425-426 (Pa.Super. 2012).
In Pennsylvania, many people hear the words no-fault divorce and expect that it is going to be simple. Most people in Pennsylvania will get divorce on no-fault grounds, even when there has been infidelity or abuse. No-fault divorces refers to the grounds for divorce, meaning you either both sign consents to a divorce, or after two years of separation, you obtain grounds based on a two year separation. It does not necessarily mean that it will be simple. The complexity depends on the assets that have accumulated during the period in which the two parties are married as well as the difference in the incomes. If the parties are seeking to allocate assets between them or one party is seeking alimony, it does not mean that you no-fault divorce will be simple. You will need to either come to an agreement on these issues or you will have to go to court. The simple divorce, however, is the divorce where there are no assets and there is no alimony sought. In those type of cases, you can get divorced relatively quickly after both parties consent or the two year period has passed. You will also not have to go to court and you can process the divorce through the mail. This is true even if there are children since custody is handled separately from the divorce.
If you are served with divorce papers, you will want to first, keep them. Do not throw them away even if you are upset or angry. You can get a copy from the courthouse, however, if you have already done this. You are considered served on the day you receive them even if you tell the person who tries to hand it to you that you do not want the divorce papers. Your service date is an important date as it starts the period of time in which you have to wait if you are doing a mutual consent divorce. You will want to have an attorney look at the papers that you received so that they can determine for you if you need to response. The papers will always say you only have so many days to respond. Do not panic. It is unlikely that you will lose rights if you do not answer them within that time frame. Do, however, consult an attorney, who will be able to explain the legal jargon to you and let you know whether a response is required. A response is only usually required if you need to raise new claims such as spousal support or alimony or equitable distribution. Most attorneys will offer a consultation either by phone or in their office, and oftentimes, this initial consultation will be free. If you need support, you may bring someone with you to the appointment or have them on the phone with you. If you are served papers, in most cases, you will want to freeze any joint debt and secure any joint assets, but you may also want to discuss it with your attorney. Being informed and knowing what to expect is an important part of getting you through the process. An attorney can discuss with you what you can expect with respect to distribution of assets, support, and also the time frame in which things may happen or how things may be delayed.
Oftentimes parties are pro se, meaning they represent themselves. Sometimes, it can be frightening to receive paperwork in the mail that you do not understand or fear may end upwaiving your rights. In a divorce you may receive one of two types of a waivers. One is called a waiver of Notice of Intent to Request a Grounds Order and the other is a Waiver of Notice of Intent to Request a Divorce Decree. What these forms mean if you sign them are that you are giving up the 20 day notice required to let you know either a grounds order or decree will be entered. In the case of the decree, you need to make sure that you have reached an agreement on everything before you sign it. Otherwise, if you did not make claims for alimony or to divide property, they will be waived if you sign that and a decree gets entered. If you are served with one and have not raised claims but want to, you will need to do that rather quickly. For a waiver of notice of intent for a grounds order, it means grounds will be entered. You are not divorced just because grounds are established, however, you may lose rights to inherit if your spouse dies and you may want to make sure discovery is done. If you are ready to move to your divorce hearing, then signing a waiver for the grounds will not hurt you.
Mediation is a neutral and voluntary process wherein two or more parties that have a dispute meet with a mediator who facilitates the meeting in an attempt to come to an agreement and keep the matter out of court. A mediator does not have to be an attorney. Oftentimes, counselors receive training in mediation as well. It is important to keep in mind that if an attorney is a mediator, they cannot give you legal advice since they are a neutral party. For this reason, some people also keep an attorney for legal advice while going through mediation. The benefit of mediation is that it often can resolve issues or at least narrows down the issues in dispute. This is helpful in the legal setting so that only money is spent litigating a very focused issue, if needed. If an agreement is reached in mediation, it can be drafted and signed by the mediator or it can then be taken to an attorney to review. Agreements that are reached in mediation not only help keep costs down, but they also help to keep the relationship more amicable since both parties have had input in coming to the agreement.
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