Filing for Support

23 Pa C.S. Section 4321 provides that married persons are liable for the support of their spouse according to their respective abilities to provide and parents are liable for the support of their unemancipated children under 18 years of age. Domestic Relations is the branch of the court that handles support applications. An application for support can be filed with their office in the county where you reside or where the payor resides. An application can also be initiated online through the support program website. Support between spouses is based on the difference in income. 40% of the difference in income can be awarded in a case where there are no children. 30% of the difference in income is appropriate where there is also a child support component. Child support in Pennsylvania is based on statewide guidelines established by the Pennsylvania Supreme Court. The guidelines are based on an “Income Shares Model” such that the guideline amount is shared by the parties based on percentage of custody time as well as percentage of income.

Once an application for support is filed a conference is scheduled. Both parties are instructed to bring relevant documentation to the hearing including pay stubs, last filed tax return/W-2, proof of health insurance coverage and costs, childcare expenses, etc. At the conference an officer will use the income information to complete a calculation and advise of the support award. If there are any issues concerning incomes or expenses or the suggested amount of support, the parties have the option to request a hearing for further review. Though it may take several weeks to get to the conference following submission of an application for support, support awards are retroactive to the date of filing so that applicants can receive support for that time despite the wait for a court date.

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Separation Defined

Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won’t consent, the other party can move forward after the parties have been “separated” for at least one year. This is referred to as a separation divorce. Separation, however, does not mean the parties have to physically live separately. Parties may elect to still reside in the same home but can be considered “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 generally be accepted as the date of separation regardless of whether the parties continue to live together or not.

The date of separation can be a date earlier than the filing of the complaint. For example, if there is a physical separation the date one party moves out of the marital home is an acceptable date of separation. 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 even reducing it to writing. The party alleging separation will have to submit an affidavit certifying the date of separation. The other party has an opportunity to object and a hearing may be held if necessary to determine the appropriate date of separation. Accordingly, be sure that the other party is explicitly aware of your intentions, especially if you will continue to reside together and/or hold off on filing for divorce.

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Step-parent Adoption

It can be a simple process for a step-parent to adopt their step-child. Some of the statutory requirements for adoption are waived in the case of a family member adopting a child. Specifically, a home study, which is expensive and can take several months to complete, is not required. Instead, the step-parent need only complete the necessary background checks.

Presently, there are three background checks required: (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare.

As with any adoption matter, the rights of the natural parent(s) must be terminated. If the natural parents are consenting to the adoption, their consents can be attached to the Petition for Adoption. You need to wait at least thirty (30) days after the consents are signed prior to filing them with the court since there is a thirty (30) day revocation period. Alternatively, if lacking written consents, grounds for involuntary termination can be addressed within the adoption petition. There is a filing fee due to the county at the time you file the Petition for Adoption. The filed petition and notice of the hearing must be served on all interested parties. Following successful completion of all the pre-requisites and filing and service of the Petition for Adoption and hearing notice, the final step is the adoption hearing. Generally, the hearing is just a matter of ceremony and a happy occasion for the adopting parents and child.

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Bringing Children to Court

One of the factors for consideration in determining what is in the best interests of the child for a custody award is the preference of the child. It is common for the opinion of the child to be sought in the course of a custody evaluation. There is also the possibility that a child will appear in court to offer testimony. There are rules specific to the testimony of children in Pennsylvania. The policy of the Commonwealth is to promote procedures to protect children witnesses. These procedures are outlined in 42 Pa C.S.A. 5981 – 5988. For the purposes of the provisions in these sections, child is defined as an individual under sixteen (16) years of age. Per Section 5984.1, the court may direct that a child’s testimony be recorded for subsequent presentation in court so long as the method accurately captures all information presented during such testimony.

Similar to the allowance for recorded testimony, Section 5985 allows for the child to testify in a room other than the courtroom with the testimony being transmitted by contemporaneous alternative method. For example, the court may interview the child in chambers as opposed to on the stand in the open courtroom. There should still be a transcript of what was said in chambers. The purpose of this would be to make the experience less intimidating for the child. The court should determine if the child would be subject to serious emotional distress if they had to testify in an open forum and/or before the defendant. It is good practice to contact your Judge prior to any hearing to see if they are interested in speaking directly to the children or if they will permit the children to testify if you would like them to.

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Diminishing Credit

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Diminishing credit is a concept that property brought into a marriage loses its separate nature and becomes marital in nature as the marriage progresses. The court may give credit for separate property brought into the marriage depending on the circumstances. Generally, any credit to be received decreases with the length of the marriage. For example, Bucks County will reduce the credit by 5% a year such that there is no longer a credit after 20 years. A prime example of a situation where this rule would be applicable is the purchase of a marital home. Say Spouse A contributed $40,000 of their pre-marital money to the purchase of the house. If the parties separated after 5 years, the amount of Spouse A’s individual contribution is reduced by 25%. Accordingly, Spouse A would argue that 75% of the $40,000 down payment, or $30,000, is their separate property and not subject to equitable distribution in the divorce. In contrast, Chester County applies a 10% reduction per year so that after 10 years there is no credit. In the above example, after 5 years 50% of the credit will have vanished so that Spouse A would only be able to assert $20,000 as separate property not subject to equitable distribution.

Since the diminishing credit is not a statute or official rule but more or less a policy used by the respective Masters when looking at the marital estate in a divorce matter, it varies from county and county. In that regard, it is important to work with an attorney who is familiar with the county where you are seeking a divorce. It is practical advice to avoid where possible the commingling of individual property with marital property. It will be hard to make an argument on the amount of individual property that should be credited to a party if it’s hard to trace the source of the funds. You ultimately risk all of the assets being addressed as marital property in equitable distribution and subject to division with your spouse if you cannot provide clear proof of their separate nature.

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Workers Compensation Awards

Pennsylvania law does recognize workers’ compensation awards as marital property subject distribution in a divorce action. In order for the award to be classified as marital, the underlying injury creating the eligibility for workers’ compensation must have occurred during the marriage. Pennsylvania generally utilizes the timing of the receipt of assets for identifying marital property. The court still has the discretion to consider the purpose of the award and other equitable considerations when determining what percentage should go to each spouse in distributing the marital estate.

Drake v. Drake, 725 A.2d 717 (1999), is one of the cases that explains Pennsylvania’s stance on workers’ compensation awards. In the opinion, the court rejects the analytic approach which only allows an award to be marital if it’s intended to replace lost wages during the marriage. It disagreed with the other approach which is to classify an award as separate property if it is intended to replace future lost earnings extending beyond the end of the marriage. In Drake, Husband had sustained an injury in 1985. By 1989 he had entered an agreement with his employer to receive a lump sum commutation award. The parties did not separate until 1993. The court held that surely the right to receive the award had accrued during the marriage and was accordingly, marital property subject to equitable distribution.

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Unreimbursed Medical Expenses

You may be able to get reimbursed for medical expenses if you have an existing support order. Unreimbursed medical expenses may be allocated between the parties in a support matter in proportion to their income under Pa. R.C.P. 1910.16-6. The court may include the expenses within the support order or direct that it is paid directly to the party receiving support or their healthcare provider. The first $250 per year is the responsibility of the party incurring the expense. This $250 threshold is per person for orders that cover multiple persons. The parties will only need to share expenses that exceed $250 per year per person. Proof of the unreimbursed expenses should be timely supplied to the other party but must be supplied to the other party and Domestic Relations no later than March 31st of the following year. Parties are certainly encouraged to work things out amongst themselves prior to this deadline.

A limit may be placed on the amount to be reimbursed if it would otherwise be excessive. Domestic Relations can assist in the collection of unreimbursed expenses if the other party still refuses to pay their share after receiving timely documentation of the expenses. Untimely submission of unreimbursed expenses is left to the discretion of the court as far as if they will still be allocated between the parties. Medical expenses that are eligible for reimbursement include co-pays and expenses for reasonable, necessary supplies or services. Surgical, optical, dental and orthodontic expenses are also included. Some expenses are excluded by Pa. R.C.P. 1910.16-6. Expenses that are not eligible for reimbursement include cosmetic, chiropractic, psychiatric and psychological expenses. These expenses may ultimately be included by mutual agreement or specific order of the court.

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Starting a Divorce Action

The initial step is to get a Complaint filed with the court. The Complaint would include the grounds under which you are seeking divorce as well as any other types of relief requested. For example, your complaint would state if you are asking for a no-fault divorce on the basis of mutual consent or separation or a fault divorce. It may also include counts for equitable distribution if there is marital property, custody if there are minor children involved, and support for minor children or between spouses. There is a filing fee due at the time the complaint is filed.

Once a divorce complaint is filed it must be served on the opposing party before the matter can proceed. Pennsylvania Rule of Civil Procedure 1930.4 discusses acceptable methods of service for all domestic relations matters.

The complaint can be served by personal service or certified mail, restricted delivery, return receipt requested. If the complaint is being served personally, the person effectuating service should complete an affidavit of service indicating when and where the opposing party was served. Personal service can be carried out by any adult that is not a party to the action. The Sheriff can be contacted to effectuate personal service for a fee. There are also numerous private companies that will effectuate service for a fee. The opposing party also has the option to sign an Acceptance of Service form. This is a good option for an amicable divorce. Service in a divorce matter must be accomplished within 30 days of when the complaint was filed. If service is not completed within the applicable time frame, the complaint must be reinstated and a new thirty-day period begins to run.

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Recognition of Foreign Orders

U.S. Courts have recognized foreign support/custody orders, divorce decrees, adoption decrees, and money judgments. A court will recognize a foreign Order under the doctrine of comity so long as the party has established domicile in the foreign country. As discussed in Hilkmann v. Hilkmann, “[c]omity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation…Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect.” 2003 PA Super 25 (2005).

The two primary considerations when determining whether to acknowledge a foreign Order are whether the foreign court had jurisdiction and whether fair procedures were used. Jurisdiction is governed by domicile of at least one of the parties. In Commonwealth v. Doughty, the court held “[i]t is an established and familiar principle that judicial power to grant a divorce is founded on domicile. In the absence of domicile by at least one of the parties to the action, the Court has no jurisdiction over the cause and its decree will consequently, not be endowed with extraterritorial effect.” 187 Pa. Super. 499 (1958). Accordingly, “[a]n absolute prerequisite to judicial recognition of an out-of-state divorce is that the plaintiff must have resided in the state or country for a minimum period of residency as determined by local authority and that the residency be accompanied by domiciliary intent, i.e., an intent to remain in the foreign jurisdiction.” Sargent v. Sargent, 225 Pa. Super. 1 (1973).

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Physician Verification Form

Each party’s income is relevant in the context of a support action. Pennsylvania can assign an earning capacity for parties who are voluntarily unemployed or underemployed. There are recognized exceptions to avoid having income imputed if you do not work. One of those exceptions is if you are physically incapable of working. In the event that a party in a support matter asserts an inability to work due to medical issues, the support rules require that a physician verification form be completed. Pursuant to Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1910.29 (b), the physician verification form should be completed by the party’s physician and submitted at the time of the support conference. A sample of the actual form to be used is contained in Pa.R.C.P. 1910.29(b)(3).

If the support matter does not settle at the conference and a hearing will be necessary, the physician verification form can be admitted into evidence if certain requirements are met. First, the party intending to use the physician verification form must serve a copy on the other side within 20 days from the conference date. The other party then has 10 days from receipt of the physician verification form to file an objection. If no objection is received, the form may be accepted into evidence without requiring the physician’s testimony. If an objection is made, the physician would need to testify in court and the court would determine how the cost of the testimony will be divided among the parties.

If a party receives Social Security disability or workers’ compensation benefits, proof of income from those sources would be submitted in lieu of the physician verification form. The amount of Social Security disability or workers’ compensation is treated as income for support purposes and utilized for any applicable support calculations in their case.

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