Steps for Simple, Uncontested Divorce

The procedures outlined below are suitable for an amicable divorce where there are no ancillary issues such as equitable distribution, custody or support. First, a Complaint in Divorce must be filed with the court. This may be your local county court or another county courthouse within the Commonwealth provided you consent to their jurisdiction. The difference in filing fees is a reason why you may look into filing outside of your county. Second, the Complaint in Divorce needs to be served on the opposing party. This can be done informally by having the other party execute an Acceptance of Service. Other options include service via certified mail, return receipt requested, restricted delivery or personal service by a process server of the Sheriff’s office.

Third, you must establish grounds for the divorce. For a no-fault divorce this would be either mutual consent of the parties after ninety (90) days or one or more year(s) of separation. If pursuing mutual consent, both parties would need to sign an Affidavit of Consent as well as Waiver of Notice for the divorce. If doing a divorce on the basis of separation, one party would file an Affidavit of Separation with the court and then serve it on the other party with a counter-affidavit to make sure they don’t object to the date of separation. The final step is filing a Praecipe to Transmit for Divorce Decree. This motion details all the prior steps for a divorce have been properly completed and includes the actual form of decree for the court’s signature if the motion is satisfactory.

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Where Can You Adopt?

The Pennsylvania Adoption Act is fairly liberal in terms of where an adoption can take place. An adoption can take place in any county where the natural parents of the child occur. It may also take place in any county where the child to be adopted resides. Additionally, an action for adoption can be initiated in the county where the parties looking to adopt reside. Outside of any county where a party of an adoption matter may reside, an agency adoption can be brought in any county where that agency has an office. The final option as to where you may file is where the child to be adopted previously resided with leave of court. This means a court must make a determination as to whether filing in a county where the child used to live or was born is appropriate.

The third factor is most often seen in the context of family law matters. Often, parties will want to obtain medical information of the other party to present as evidence to the court. This may be in the context of a custody matter if a party is alleging the other party does not have the physical fitness or mental well-being to parent. It may also arise in a support matter where there is an assertion regarding an ability or inability to work because of a health issue. Essentially, a party must give written consent to their provider prior to the release of any of their medical information. Entities that must follow HIPAA include insurance companies and health care providers. In some circumstances it is possible to obtain records without the patient’s written consent by subpoena or court order.

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HIPAA

HIPAA is the acronym for the Health Insurance Portability and Accountability Act of 1996. This Act establishes guidelines on the dissemination of sensitive medical information. It is a federal statute applicable nationwide. There are three main provisions of the Act. First, it seeks to make it easier to maintain health care in terms of transfers between jobs or carriers. Second, it sets a standard for providers of health care and the plans they offer. Third, it addresses each individual’s right to privacy as it relates to their medical information.

The third factor is most often seen in the context of family law matters. Often, parties will want to obtain medical information of the other party to present as evidence to the court. This may be in the context of a custody matter if a party is alleging the other party does not have the physical fitness or mental well-being to parent. It may also arise in a support matter where there is an assertion regarding an ability or inability to work because of a health issue. Essentially, a party must give written consent to their provider prior to the release of any of their medical information. Entities that must follow HIPAA include insurance companies and health care providers. In some circumstances it is possible to obtain records without the patient’s written consent by subpoena or court order.

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How to Rollover Retirement Assets

Retirement assets are often one of the substantial assets in a marital estate. It is possible to do a tax-free rollover of retirement benefits as part of a divorce. First, you will need to know what kind of benefits are involved. Qualified benefits will require a Qualified Domestic Relations Order (QDRO) to achieve the tax-free rollover. Qualified plans include defined contribution plans such as 401K as well as defined benefit plans such as pensions. Federal retirement plans (e.g. CSRS, FERS, TSP) also require a court order to achieve the rollover however the appropriate order for federal plans is a Court Order Acceptable for Processing (COAP). Once the QDRO or COAP is drafted to dictate the percentage or fixed amount to be rolled over, it is signed by the parties and then the Judge prior to submission to the plan for execution.

Non-qualified plans, most notably IRAs, do not require a specific order to do a rollover. Often, just a copy of the settlement agreement or Order and copy of the Divorce Decree may be sufficient to complete a rollover. It is important to make sure the rollover is direct to ensure it is tax-free. If the funds are instead withdrawn with the intention to re-deposit into the other party’s account, there will be a 20% tax withholding on the withdrawal in addition to any early withdrawal penalties that may be applicable. It is also a good idea to make sure the rollover is done promptly after the divorce. As the party receiving funds via rollover, be careful as to how you elect to receive distributions once the funds are in your account. Similar, tax and any applicable early withdrawal penalties will apply to you once accessing the funds.

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Veterans Benefits in Divorce

Former military members may be eligible to receive a number of different veterans benefits from the Department of Veterans Affairs (VA). Possible benefits include disability compensation, pension benefits, life insurance, educational benefits and more. Veterans benefits cannot be divided as an asset in a divorce case. This is due to the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Pennsylvania Divorce Code confirms this rule. Under 23 Pa. Section 3501(a), discussing the definitions for marital benefits, veterans benefits exempt from attachment, levy or seizure are defined as non-marital.

VA disability payments are non-marital as are any military disability retirement payments. When discussing which benefits should be classified as non-marital, the statute goes on to draw a distinction as it relates to benefits received in lieu of military retired pay. Specifically, veterans benefits may be considered marital to the extent that a service member has waived military retired pay to receive the veteran benefit. This is because military retired pay is subject to distribution as a marital asset so any benefit received in exchange for their retired pay should be treated the same way. Veterans should also be aware that disability payments can be considered as income for an alimony award.

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Hague Convention Implications

Enforcement of an international custody order is addressed by the Hague Convention on the Civil Aspects of International Child Abduction. Signatories to the Hague Convention are required to immediately return children if taken or retained in violation of a custody order. All countries who are parties to the Hague Convention must establish a “Central Authority.” This office is responsible for dealing with any Hague Convention violations. For children removed from the United States, a petition for return should be filed through the U.S. State Department, Office of Children’s Issues. From there, the petition is transmitted to the Central Authority for the other country involved and ultimately adjudicated there. It is important to begin the process as soon as a violation occurs for the best likelihood of having the child returned.

If you are contemplating a custody order with a party who lives out of the country or has significant connections to another country you may want to verify if that county is a signatory. This will be invaluable in the event there is an issue with the custody order while your child is abroad. You may want to consider if the country is a signatory even for vacation travel if you do not trust the other parent. A good custody order or agreement should dictate that written consent is required for travel outside of the United States so that you can have a say on where the child goes.

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Child Support Awareness Month

August is National Child Support Awareness Month. August has been dedicated to child support awareness since 1995 when President Clinton began it as part of his welfare reform agenda. The purpose of raising awareness is to improve the collection of child support payments. The preferred method of collection is wage garnishment. There is also information on sanctions for failure to pay support which may include suspension of driver’s licenses and passports for parents with child support arrears. All 50 states participate in child support awareness month.

Child support in Pennsylvania is based on statewide guidelines established by the Pennsylvania Supreme Court. The guidelines are intended to ensure that similarly situated parties are treated similarly and are based on the combined net monthly income of both parties as well as the number of children involved. Pennsylvania does use wage garnishment as a means of securing consistent payment. The family court has the authority to issue a bench warrant to have a party who is not making support payments taken into custody. Additionally, the court can order additional incarceration at a subsequent support hearing as a means of reiterating the importance of regular support payments and demonstrating the severity of the punishment available for failure to comply. The court can also seize any lump sum payments due to the payor including unemployment compensation, workers’ compensation, insurance settlements, Social Security retirement or disability benefits, and other public or private retirement funds.

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Changing School Districts?

Custody refers to both physical custody, which is the schedule parties follow, as well as legal custody, which is who makes important decisions for the child(ren). Often times parties will share legal custody meaning they need to communicate, and ideally agree, on major decisions impacting healthcare, religion and education. Which school district a child goes to is an example of an education decision that should be discussed in the context of shared legal custody. If the parties ultimately cannot agree on a school district, the court could intervene to make the final determination.

Moving to a different school district may also arise in the context of a custody relocation. 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 non-relocating party to exercise custodial rights.” Prior to the relocation, the party seeking to move must give notice via certified mail to the other parent and said notice should include the proposed new school district.

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Lump Sum Alimony

Alimony is support paid to an ex-spouse following the divorce decree. The amount of alimony is largely based on the incomes of the parties but may also be affected by the distribution of the other assets, if any. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. As previously alluded to, an alimony provision within an agreement between the parties may not be modified in the absence of a specific provision allowing such a modification within the agreement. Generally, the length of alimony is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate.

The court can only Order alimony in the traditional vein of a monthly support award. This monthly support award is tax deductible for the party paying alimony. It is also taxable income for the party receiving it. Parties who are seeking to negotiate a settlement agreement can weigh the pros and cons on a lump sum alimony award as opposed to a month-to-month obligation. A potential con is a change of circumstance down the road where the support may have increased, decreased or been terminated altogether. A benefit would be getting it over with right away as well as the discount for present cash value. The payor must have the resources to afford a lump sum payment as well whether that been separate assets or through sacrificing some of their portion of the marital estate. You should consult with your attorney and accountant on whether a lump sum alimony award or a traditional alimony award would work best for you.

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Limits on Grandparent Rights

Section 5325 of the Domestic Relations laws sets out the circumstances under which grandparents and great-grandparents may petition for partial custody/visitation. One of three conditions must be met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months; or (3) the child has lived with the grandparents or great-grandparents for at least 12 consecutive months provided a petition is filed within six months after the child is removed from the home. However, in a 2016 decision, D.P. and B.P. v. G.J.P. and A.P., No. 25 WAP 2015, the Supreme Court of Pennsylvania for the Western District, held that Section 5325(2) intruded on the constitutional rights of the parents.

In the instance case the parents to three children had been married and subsequently separated, but did not institute divorce proceedings. The grandparents filed for partial custody under Section 5325, where the parents of the child have been separated for at least six months, after the parents mutually agreed to end contact with the grandparents. The court ultimately ruled that just because the parents were separated did not mean they could not still make sound decisions regarding their children. Parents have a fundamental interest in rearing their children as they see fit. Any law that seeks to impede on that natural right must pass the test of strict scrutiny, meaning the it must be “narrowly tailored to further a compelling government interest.” The court held that Section 5325(2) did not pass the strict scrutiny standard and hence the grandparents were not able to ask for custody. There has not yet been a change to the statute in response to this decision.

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