Spousal Support

Section 4321 of the Domestic Relations laws provides that married persons are liable for the support of each other according to their respective abilities to provide support as provided by law. Similar to child support, spousal support will be calculated based on a statewide guideline. Without children, spousal support is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support will only be 30% of the difference of the net incomes. There is a defense to the duty to pay spousal support where the spouse seeking support has engaged in conduct that would constitute grounds for a fault-based divorce. The fault grounds under the Pennsylvania Divorce Code include: (1) willful and malicious desertion without reasonable cause for at least one year; (2) adultery; (3) cruel and barbarous treatment of an injured and innocent spouse; (4) bigamy; (5) imprisonment for at least two years after conviction of a crime; and (6) indignities to the innocent and injured spouse which makes that spouse’s condition intolerable and life burdensome.

It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Many cases have touched on the issue of whether spousal support is appropriate if the other party had another relationship outside of the marriage. In this scenario the spouse objecting could raise a defense by seeking to prove adultery or indignities. Adultery is defined as voluntary sexual intercourse with a person other than his/her spouse. “Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.” A single act by a spouse will not support a finding of indignities. Instead, it must be a course of conduct that renders the life of the innocent party intolerable or burdensome. A party objecting to spousal support should be aware that conduct which takes place after separation is generally not relevant. It should only be introduced if you can show the conduct began before separation. Parties should be careful of the timing of new relationships if seeking spousal support.

by

Reconciliation

Pennsylvania allows a no-fault divorce on the basis of one year separation period. Separation is defined in Section 3103 of the Divorce Code as follows: “Cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.” Cohabitation, though not specifically defined in the divorce code, is generally understood to be living and dwelling together as husband and wife with the mutual assumption of all marital rights, duties and obligations. It requires more than just remaining in the same house overnight or for the weekend or taking a week-long trip together. Any reconciliation between parties can negate a prior separation period. Specifically, if a party is pursuing a divorce on the grounds of separation, a reconciliation may result in a new date of separation date and hence a new one-year waiting period.

Case law has distinguished what actions/behavior will be considered a successful reconciliation, hence tolling a new period of separation, versus those actions/behavior that will not change the initial separation date. For example, isolated instances of sexual relations during a separation will not alone establish a reconciliation. Additionally, residing in the same home does not alone establish reconciliation. The court would examine the facts in each case and evaluate whether or not there was a full-blown resumption of the marital relationship. In Britton v. Britton, 400 Pa. Super. 43 (1990) a reconciliation was recognized when the reconciliation lasted three months, the parties resumed living together, ceased to maintain separate residences, jointly purchased a townhome, shared the same bedroom, engaged in sexual relations, shared a joint bank account and had a social life as husband and wife.

by

Separation for Divorce

Separation is one of the no-fault grounds for divorce in Pennsylvania. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. Grounds for a divorce can be established if a one year separation period is established. One party would need to file an affidavit of separation setting forth the separation date. This affidavit is to be served on the other party along with a counter-affidavit. If no objection is made by the other party the date of separation as stated in the initial affidavit is accepted.

Separation does not mean the parties have to actually live separately from another. Many parties still reside in the same home but are considered to be “separate” based on the definition provided by the Divorce Code. Section 3103 of the Divorce Code defines “Separate and apart” as follows: Cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.” Accordingly, the date the divorce complaint is filed will be accepted as the latest date of separation regardless of whether the parties continue to live together or not. However, the date of separation can be an even earlier date such as the date one party moves out of the marital home. Alternatively, even if the parties continue to reside together, a date of separation can be established when one party makes it clear to the other party that the marriage is over by stating so clearly or preferably putting it in writing. Be sure that the other party is keenly aware of your intended separation, especially if you will continue to reside together and/or hold off on filing for divorce.

by

Jurisdiction for Custody

Pennsylvania abides by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in terms of determining where a custody case should be handled. The preferred method for establishing jurisdiction is based on the home state of the child. The homes state is defined as the state where the child had been living for at least six (6) months prior to the custody action or since birth if the child is less than six months old. If jurisdiction is not clear based on an analysis of the home state, the courts then look to see where there are significant connections and substantial evidence relevant to the custody action. Significant connections is more than just mere presence in any state.

Once a court obtains jurisdiction under one of guidelines above, that court continues to have exclusive jurisdiction until it is established that another court has become more suitable for jurisdiction. Accordingly, any modifications of custody must go through the court that made the initial or prior determination. If all parties and the child have moved from the jurisdiction where the initial custody order was established, there is a good chance the jurisdiction for the custody matter should change as well to the new home state of the child. There is an exception to the rules on jurisdiction in the event of an emergency. If a child is in danger and there is a need for immediate action, the jurisdiction where the child is located at that time can enter a temporary emergency order. The UCCJEA also provides a procedure for registration and enforcement of custody orders across state lines.

by

Alimony and Tax Implications

Alimony is support paid after a divorce has finalized. Alimony is deductible from the party paying alimony and taxed as income to the party receiving it if it meets certain requirements established by the Internal Revenue Service. For starters, you need to make sure the specific terms of your alimony award are spelled out in a settlement agreement or court order. Second, alimony is intended to be a cash payment. There is some flexibility here however in that payments of bills on behalf of the recipient are still treated as “cash” payments to the recipient. For example, alimony can consist of payments to upkeep a property such as mortgage payments, taxes and insurance though only half of the payments would be deductible.

Alimony can include payments to a third party if designated that it is in lieu of alimony. Additionally, alimony can consist of payment of life insurance premiums for the other party. It is important to note that the parties cannot file a joint return when alimony is being paid and should not be residing in the same household. Finally, alimony must terminate upon the death of the receiving party so any payments required after death would not count as alimony. Child support, noncash property settlement, and payments on the property of the partying paying alimony or use of that party’s property do not count as alimony. Alimony can be direct pay to the recipient or via wage garnishment through Domestic Relations. The method of payment has no bearing on the tax implications for the parties.

by

Asking for Custody if you are not a Parent

Parties other than parents and grandparents may be able to file for custody. Section 5324 of the Pennsylvania Domestic Relations laws discusses who has standing to file for legal and physical custody. First, a person who stands in loco parentis may file for custody. In loco parentis status means you are acting as a parent even though there isn’t the biological connection. It has been defined as an assumption of parental status as well as an actual discharge of parental duties giving rise to a relationship which is the same as between a natural parent and child. This requires more than just a frequent care-taker role.

A grandparent may be able to file for legal and physical custody if their relationship with the child began with the consent of the parents and they are willing to assume responsibility for the child. In addition, one of three conditions must be met. First, the child has been adjudicated dependent. This happens through a legal proceeding. Second, it is established that the child is at risk due to parental abuse, neglect, drug or alcohol use. Finally, if the child had resided with the grandparent for at least a year and is subsequently removed from the home then the grandparent can file for custody within six (6) months from the removal date. Grandparents can also see partial physical custody of their grandchildren under Section 5325 if they are unable to meet the requirements for standing under Section 5324.

by

Changes to Military Retirement Benefits

Retirement benefits can be a substantial asset up for division in the context of a divorce action. The same is true in the case of military retirement benefits. There is a certain time requirement for service in order to be eligible for military retirement. Once this threshold is reached, a spouse is then entitled to their share of the military retirement benefits no matter how insignificant. Under the ten year rule, where the parties have been married for 10 years and the service member has accumulated 10 years of service, DFAS (Defense Finance and Accounting Services) can pay the spouse directly. When the ten year rule has not been met, the spouse can still receive a portion of the military retirement benefits however the service member will be responsible to pay the spouse themselves. A court can only award a division of a military pension if it has jurisdiction over the service member via residence, domicile or consent.

As of January 2018, the framework for military retirement benefits is changing. All new service members will automatically be enrolled into the blended retirement system which is a combination of the traditional military pension as well as a Thrift Savings Plan. Members with up to twelve years of service can elect to switch to the new blended retirement system. There is a new continuation pay option between years eight and twelve of service contingent on an additional three years of service and a new lump sum payment option. The new rules will also freeze members pay grade as of the time of divorce for use in calculating the marital portion of the pension. This will have the effect of reducing the share to the spouse.

by

National Adoption Month

November is National Adoption Month. This is the 22nd year for recognition of National Adoption Month. It started as National Adoption Week in 1984 on the motion of then President Ronald Reagan. In 1995, President Clinton extended the recognition from a week to the entire month of November. This year’s initiative is finding homes for teenagers. Teenagers are often less likely to find a forever home due to their age however it is still vital for teens to establish stable connections as it reflects on their overall wellbeing and increases their likelihood for success as adults.

Pennsylvania participates in presentation of a proclamation every year regarding National Adoption Month pledging its commitment to make sure every child has a place to call home. Pennsylvania specifically recognizes the Statewide Adoption & Permanency Network and PA Adoption Exchange as organizations that work towards the overall goal of permanency for all children. In addition to a month-long awareness, a National Adoption Day is also recognized. This year Bucks County will celebrate National Adoption Day on November 17, 2017. PA estimates that currently there are approx. 2,500 children in foster care awaiting adoption. You can visit www.adoptpakids.org for more information on the adoption process as well as many of the children in need of a home.

by

Custody and Domestic Violence

,

Emotions run high in any child custody discussion.  When you are fighting with your soon-to-be-ex, in person or through your attorneys, that arguing adds extra pressure to the process.  When violence and abuse are already present in the relationship, there is added urgency along with a fear of you or your children being victimized.  

 

Whether you are negotiating parenting time and a custody schedule for the first time or you think an existing schedule should be reviewed, it is very important for you to tell your attorney about any abuse.  As divorce and family attorneys, we have helped many families through these situations.

First and foremost, if your spouse is abusing you and/or your children, it is critical that you get yourself to safety and follow the protocols of the Bucks and Montgomery County Protection from Abuse (PFA) procedures.

Next, an experienced attorney can help you unravel the tangle of domestic violence as it relates to your custody case.  To be clear, just because you say you are being abused does not mean the judge is going to grant you full custody or take away the other parent’s rights.  While protection and safety are of primary concern, there needs to be documented proof of abuse.  This is where an experienced attorney can help you.  

Documentation is a very important part of any abuse case and should include as much detail as you can by date.  Remember to not only include details about any physical abuse, but also emotional abuse as well.  You will need to find a safe place to store your documentation and sometimes the best place is out of your home and away from where your spouse may find it.  Sometimes your computer or phone can be safe.  We can help you put the right system in place.  Record incidents of physical abuse with a doctor (including pictures) and even with a therapist or social worker.  As you document, also make sure to tell at least one trusted confidant what is happening; this can be a friend or family member.  This level of documentation is critical so that you have a trail of proof should it ever be needed.  

As mentioned above, your safety is of utmost importance and stopping the abuse is the goal.  When your emotions run high, working through the legal process can seem tedious and a waste of time.  However, all custody issues in Montgomery and Bucks County, PA need to be resolved following a legal procedure and we can help you work through it quickly to obtain the best possible resolution.  

by

How to Change Your Custody Agreement/Parenting Time

,

If you have children and are getting divorced, you will negotiate a parenting time schedule, typically called a custody agreement. This dictates the amount of time that each child will spend with each parent. It can include overnights, holidays, and special arrangements like pick-ups and birthdays. If you are divorcing with younger children, your schedule will more than likely need to be adjusted in the future to accommodate different schedules.  If you have already been divorced for a few years, you may be concerned that your custody agreement is no longer working. After all, your schedule, as well as the activity schedules of your children, have probably changed over time.  


First, as you move through your year, you may find that certain dates in the schedule need to be adjusted.  For instance, you may need to attend a work event or a wedding on a weekend when you are scheduled to have your children.  If your ex is agreeable, a simple email, phone call or text can handle these one-time changes. Sometimes, in contentious post-divorce relationships, parents feel they need to get an attorney involved in every single change.  This can ensure that there is a formal agreement to the change, but is usually not necessary.  


For more substantial changes to your custody agreement, you will want to make sure that the new plan is fair and, most importantly, includes a consultation and/or review with an attorney.  For instance, if you are taking on more nights with your children, you may be entitled to additional child support.  With more permanent changes, you should file with the court.  A handshake (or email) agreement is not enforceable all the time.  


If you have a more serious circumstance to consider, it is essential that you have legal guidance through the process.  If your ex does not show up for scheduled time and your children are continually disappointed, homework is not completed when the children are in your ex’s care, your ex suffers from alcoholism or drug abuse or is incarcerated, then the circumstances may be extreme and legal guidance is imperative.


Lastly, you may want to change your custody agreement but your ex may be opposed to doing so.  You may be changing jobs or moving or you may realize that your child’s new schedule needs to be accommodated in a different way.  If you and your ex do not get along, then you might need lawyers, or even the court, to handle the change.  If both parties do not agree…this will need to be negotiated.  You must be able to demonstrate that it is in the best interest of the child to amend the parenting time agreement.  


Regardless of the changes you need to make, your parenting time schedule can usually be adjusted.  It is critical to find a lawyer who is experienced in Bucks and/or Montgomery County who can walk you through child custody issues and any other changes that should be considered.  

by