Estate Planning after Divorce

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It makes sense to revisit your estate plan after any major life change, including new child, marriage and divorce. You want to ensure you are leaving your assets to the individuals you intend to and that can change over time. Sometimes, individuals do not get around to updating their plan leaving their heirs to deal with the fallout. Luckily, in the case of divorce, there is some protection offered by law. Specifically, any provision in a will relating to the testator’s spouse will become ineffective upon divorce unless it is clear the provision was intended to remain post-divorce. The same is true if the testator is in the midst of divorce proceedings and grounds for divorce have been established. Establishment of grounds is by order of the court and requires more than just the filing/service of a divorce complaint.

 

The rule for wills is also applied to beneficiary designations. The law provides that any designation naming a prior spouse shall become ineffective upon divorce. However, a prior spouse would still be entitled to receive their share of the asset if awarded to them pursuant to equitable distribution, where applicable. Your estate plan may also be automatically modified in the event of marriage. If a testator marries after making a will, the surviving spouse shall at least be entitled to what they would have received without a will if they are not named. Intention is also a factor here. If the document notes the upcoming marriage, the law does not apply to change the will.

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Can My Custody Order Be Changed?

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If you have children and have previously been through the custody process with the Court it is likely that it resulted with a Court Order. A Court Order for custody is issued in a Custody proceeding. This Order will direct which parent has legal and physical custody. Legal Custody is the right to make decisions for your child. Decisions such as where they go to school, what doctors they see, if they are involved in any religious activities would all fall under legal custody. The Custody Order will specify if one parent has sole legal custody or if legal custody is shared. If parents have shared legal custody they must consult each other about decisions in their children’s lives. A Custody Order will also direct who has physical custody. Physical custody is who the children are physical with. An Order could direct that one parent has sole physical custody or that the physical custody is shared. If the physical custody is shared the Order will probably also set out a schedule as to when the children are with each parent.

If you have a Custody Order and circumstances have changed or new developments have occurred you might think that the Order needs to be changed because the situation has. That is ok. Custody is always modifiable. If you have a Custody Order and you are seeking it to be changed we can help you with that. We would file a Modification of Custody requesting that the Custody be modified. If you are in Pennsylvania and have a Custody Order that you need to have changed, please call our office for a free 15 minute consultation to discuss your options.

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CYS Results

It has been 30-60 days since an anonymous complaint was made on the Child Line accusing you of child abuse. The investigation has been completed and a report issued. What does that report say? Children and Youth/DHS will send a letter giving the finding and explaining what it means. The letter will contain one of three results. These are Unfounded, Indicated, or Founded. What do each of them mean.

An Unfounded report is defined as any report that is not Indicated or Founded. That means that there is no proof that any actions of the accused person rose to the level of child abuse as defined in the Child Protective Service statutes.

An Indicated report is one where there is substantial evidence that an action of the accused rose to the level of child abuse based on available medical evidence, a child protective service investigation, or an admission of the alleged abuser. Typically this will be a one time act with no on going threat to the child.

A Founded report is one involving a perpetrator that is made pursuant to this chapter, if any of the following applies:

(1) There has been a judicial adjudication based on a finding that a child who is a subject of the report has been abused and the adjudication involves the same factual circumstances involved in the allegation of child abuse.

(2) There has been an acceptance into an accelerated rehabilitative disposition program and the reason for the acceptance involves the same factual circumstances involved in the allegation of child abuse.

(3) There has been a consent decree entered in a juvenile proceeding that involves the same factual circumstances.

(4) A final protection from abuse order has been granted when the child who is a subject of the report is one of the individuals protected under the protection from abuse order.

Typically, this means there is an ongoing threat of abuse and the Court has stepped in to declare the child(ren) dependent and they must be removed from the abuse perpetrator’s presence.

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What happens if a Protection from Abuse Order is Violated?

Abuse can occur in several forms both physical, mental and emotional. If you find yourself in an abusive relationship you should know that there is help,. Getting out of an emotional relationship can sound a lot easier than it might seem. You might have fears that if you leave they will come after you. You could fear for your physical and mental safety. There are actions you can take to protect yourself. In Pennsylvania you can file for a Protection from Abuse Order (PFA). The process of filing for PFA is filling out the paperwork and then likely you will talk to a Judge and a temporary order will be granted. After the temporary is granted then a hearing is scheduled in front of Judge to see if the temporary needs to be extended or if a final order needs to be put in place.

Even if you do get a PFA however, you might have concerns that your abuser will not comply with the order. Do you have any recourse and if so what would that be? If someone violates a PFA Order they can be found in contempt of the Order. If they are found in contempt the result could be that the order is extended for a longer period of time, they could face fines, or they might be incarcerated. The result will depend on how serious the contempt violation was. If you are in Bucks County and are in an abusive relationship know that you do not and should not stay. There are ways of protecting yourself so that you can get out and start living your life safely. If you find yourself in this type of scary situation please contact our firm today for assistance.

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How is Custody Decided?

If you have children, and are going through a divorce or separation a major thought on your mind is probably what is going to happen with the kids? Who is going to get custody? How is custody decided? What are the different types of custody schedules? These are all very valid and important questions and I know these thoughts can cause anxiety, fear and worry as well. This will give you a little overview on how custody in Pennsylvania is decided to inform you of more information and try and answer some of your questions.

There are several factors that the courts in Pennsylvania consider when deciding on custody. The standard the court uses to determine overall is the best interest of the child. The court will always consider what is in the best interest of the child when determining custody. Using the standard of the best interest of the child there are 16 factors that the court will look to when trying to determine custody. The following are the 16 factors the court will use look to:

  • Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
    • They will look which parent actively promotes a relationship with the other parent. The courts do not like to see that one parent is preventing or intentionally hurting the relationship between the other parent and child.
  • The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
  • The parental duties performed by each party on behalf of the child.
    • They will look at who takes them to school, helps with homework, schedules and takes them to doctor’s appointments. Basically what the parties do for parental duties.
  • The need for stability and continuity in the child’s education, family life, and community life.
  • The availability of extended family.
  • The child’s sibling relationships.
  • The well reasoned preference of the child.
    • Depending on the child’s age and maturity a Court may consider their opinion as part of the decision. The decision will not solely be based on the opinion or preference of the child but could be considered.
  • The attempts of a parent to turn the child against the other parent, except in the cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
  • Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
  • Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
  • The proximity of the residences of the parties.
  • Each party’s availability to care for the child or ability to make appropriate child care arrangements.
  • The level of conflict between the parties and the willingness and abilities of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
  • The history of drug or alcohol abuse of a party or member’s of a party’s household.
  • The mental and physical condition of a party or member of party’s household.
  • Any other relevant factors.
    • The Court will consider any other relevant factors in order to determine what is in the best interest of the child.

These sixteen factors are what the Court considers when determining custody of a minor child. At a hearing evidence is presented and a Judge will consider that evidence with these sixteen factors. If you find yourself in a custody situation in Bucks County and need representation please call our firm today to schedule your free consultation.

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What Happens If My Protection from Abuse Order is Violated?

Being in an abusive relationship is very scary, stressful and difficult. You may have found yourself in an abusive relationship suffering from abuse from your partner, either physically, mentally or emotionally. If you are in an abusive relationship you can and should seek protection from the court. A Protection from Abuse order (PFA) is an order from the court that orders the abuser to have no contact with you. These orders can last anywhere up to 36 months. If you are in an abusive relationship and seek protection, a PFA is a way to get peace of mind that your abuser will stay away from you.

You may be wondering, even if you get a PFA your abuser might not follow it. What happens then? If the person you have a PFA against in any way violates any part of the order they could be found in contempt. You would want to file a contempt complaint with the court. That person would then be ordered to a hearing about the contempt where testimony could be presented regarding the particular contempt violation. The consequences for a contempt violation vary on the seriousness of the violation in particular. Those consequences range from extension of the PFA, fines, and incarceration.  by Meghan Fleming

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What is CYS?

All parents dread being contacted by Children and Youth/DHS. It is the dread of a stranger misunderstanding or misinterpreting a situation they observe. There are a couple of things everyone must understand. The concept of mandatory reporters. There are certain professions, such as teachers, doctors, nurses, and therapist, that are licensed by the state. They are required by law to report even the suspicion of child abuse/neglect. If they fail to report, they could end up losing their license to do the job they love. Therefore, the mandatory is more likely to air on the side of caution and report.

The next thing to know is that Children and Youth is required by law to investigate any complaint made. When they investigate, they will talk to all the parties involved. They will want to speak to the child (age dependent) and the parents. They will also want to see the residence to make sure it is appropriate living space for a child. You are not required to allow them to enter your house or to speak to them until there is a court order saying otherwise. However, it is not recommended that you take this adversarial stance. They will assume you are doing so because you have something to hide. Once the Courts are involved with an Order, the process escalates into something much more If you are contacted by Children and Youth/DHS, immediately contact an attorney to discuss the best way to handle the situation.  by Russell Manning

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Who Pays Child Support?

If you are going through a situation involving the custody of your children, you may be wondering who has to pay child support. Both you and the other parent have a financial obligation to support your children. The type of custody arrangement between you and the other parent, whether by agreement or Order of the Court, will determine who pays child support. If you have a 50/50 custody schedule, then the parent that makes more money will likely be the one paying, but at a discounted rate. If you have primary custody of the child/children, then the parent who has partial custody will be obligated to pay child support. However, if the parent that has partial custody has the child overnight for more than 40% of the time (6 overnights over the course of a 14 day schedule), then the parent will be entitled to a discount of the amount of child support they have to pay. When seeking child support from the other parent it is best to get a Court Order to ensure that the payments come in. An Order from the court can provide you some assurance that the money you are relying on to help care for your children won’t suddenly disappear one day.

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What is the Process of Filing for Protection from Abuse?

Do you find yourself in an abusive relationship? This situation can be very difficult and scary for the person suffering from the abuse. Abuse can come in several different forms. It can be verbal and threatening to the point where you are terrified of what will happen next. Verbal abuse can be very scary as threats and harassment can make you fearful of what comes next. In other situations, the abuse can be physical where you are being physically harmed by your partner. This is a very scary situation that many people can find themselves in. You might be scared that you cannot do anything to stop the abuse, or worried about what will happen if you try. You do not and should not remain in an abusive situation and you can protect yourself by filing for a protection from abuse (PFA) order with the court.

When you file for a PFA a Judge will normally grant a temporary order that orders the abuser to stay away from you until you both can appear in front of a Judge at a hearing. On the day of the hearing an agreement will try to be reached between the parties where there are agreed upon terms regarding the abuser having no contact. If no agreement is reached, a hearing will be conducted in front of the Judge where he will decide what the order will be going forward. A PFA order can be put in place for any duration up to 36 months. If you are in an abusive situation and seek protection you should file for a PFA so that you can start living your life without the fear that you have been experiencing.

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Divorce Forms

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There are a number of forms required to be submitted to the court in the course of a divorce where a claim for equitable distribution of marital assets has been raised. An Inventory and Appraisement form has each party identify all the assets and debts at issue in the case. Values or balances at the date of separation should also be disclosed. The form distinguishes between marital assets and assets an individual may be claiming as non-marital. Any assets identified as non-marital should include an explanation as to why they should be categorized as non-marital. For debts, the creditors should be named along with the nature of the debt. Finally, the Inventory asks parties to identify any assets that have been sold or otherwise transferred.

An Income and Expense statement has each party provide detailed information on their present income and ongoing expenses. With respect to income, frequency of payment and taxes or other deductions from gross income should be disclosed. There is a separate form for self-employed individuals whose calculation of income can be less straight-forward. With respect to expenses, parties should identify if it is a monthly, quarterly, or annual expense. Additionally, parties can mark whether the expense is an individual one versus an expense incurred for their children and/or spouse. Both of these forms help in demonstrating standard of living established during the marriage and financial circumstances of the parties as they separate to assist the court in making support and/or equitable distribution awards.

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