Bifurcation

Bifurcation is the process whereby a divorce decree may be granted prior to resolution of the economic rights of the parties. Where granted, the court retains jurisdiction over the parties’ equitable distribution claims as well as support claims. Section 3323 (c)(1) of the Divorce Code discusses where bifurcation might be available. If both parties consent to bifurcation, the court can enter a divorce decree indicating that they are retaining jurisdiction over the unresolved issues. In the absence of an agreement for bifurcation, the party requesting it would have to demonstrate why it is necessary. Specifically, the statute states compelling circumstances must exist and there must be sufficient economic protection for the other party.

The other requirement for bifurcation is that there are already grounds for divorce. In a no-fault divorce, this would refer to both parties having consented after 90 days or a two year period of separation having run. Whether there are compelling circumstances and sufficient economic protection is up to the court’s discretion. The length of time the parties have been separated and/or litigating the divorce matter can be a relevant factor. Tax consequences have been considered as a factor given the potential benefit of filing as individuals versus filing married separately. Finally, the court may consider the assets already in each parties’ possession as well as a support order to determine the appropriateness of a bifurcation request under the sufficient economic protection prong. Some of the policies behind allowing bifurcation is to let the parties move on with their lives and offer an incentive for prompt disposition of all issues.

Click here to read more on divorce.

by

Counseling during a Divorce

Oftentimes when people are getting divorced, there are many emotional issues involved. In instances where one spouse did not want the divorce, or even when they did but they endured physical abuse, adultery, mental abuse, or just the trauma of change that a separation brings, counseling with a qualified therapist or psychologist can be invaluable. While the process of getting divorced brings with it all these emotions, the application of the law of divorce does not consider all these emotions in the actual outcome of the division of the assets or alimony. This can be extremely frustrating for someone who feels that they need to be compensated for all they endured. It is important to be able to separate the emotion of the divorce from the actual application of the outcome of the divorce itself and this is where a therapist can really help someone. Having someone to help through the emotional process is important to be able to be rational when it is time to come to a discussion of the settlement of the assets and alimony.

by

What Happens to the Pet in a Divorce

In Pennsylvania, pets are considered personal property in a divorce. Like any personal property, if they were a pet prior to marriage, they go to the party who owned the dog at the time of the marriage. If they were purchased during the marriage, then like any other personal property, either party is entitled to keep the pet. If the parties cannot agree, they can either go to arbitration or they can decide that neither party gets to keep the pet. It is unrealistic to expect that the Court will entertain a custody schedule for a pet in a divorce. In addition, the custody statutes only apply to children. If you want to share custody of the pet, it is something that is best resolved through mediation. Through mediation, the parties can decide what things they want to address to agree on and this can include an agreement to share a pet. If you opt for this, be sure to not only include the schedule for you put, but also who will pay the expenses or how they will be shared, including vet bills, food, regular shots, etc.

by

How long will the Divorce take?

If you are getting divorced, or recently filed, you may wonder how long it is going to take to get your divorce. In Pennsylvania, there are two no-fault grounds for divorce which is the vast majority of divorces even if you think you have been wronged. If you are already separated for two years when you file for divorce and have no assets to divide and no alimony issues, it can take as little as two months to get divorced. If you have no assets and no alimony issues but have not been separated for two years, there is a mandatory 90 day cooling off period. In those cases, you can expect your divorce to take about four to five months.

When you do have issues, either alimony or division of assets, it is much more difficult to predict how long it will take. One of the reasons it becomes much harder to predict is that you cannot get divorced until you know what the assets are which is accomplished during discovery. If your spouse is non-cooperative and does not provide the necessary information, you may spend a considerable amount of time in and out of court attempting to get this information. If you spouse does not consent to the divorce, you could be waiting at a minimum two years before you can even get grounds for divorcee which you need before you get divorced.

If your spouse is cooperative and you have assets and alimony issues but you are able to come to an agreement at the beginning, the timing would be about the same as if you had no issues, two months if separated two years already and four to five months if you recently separated.

by

How an Inheritance could hurt you in a divorce

If you are getting divorced and you are entitled to a large inheritance, although the Court cannot distribute your inheritance as part of the marital estate (unless you put it into joint names), it still must be disclosed as part of the divorce process. Inheritance that you are entitled to prior to the divorce due, can hurt you in the distribution of the marital assets even though the inheritance is not marital. One of the factors that the court considers in determining how to distribute marital assets is the separate estate of the other party at the time of the distribution. If you have a large inheritance, this could lead the Master in Divorce or the Judge to decide that you deserve less of the marital estate than they otherwise would award you if you had no inheritance.

It is important if you think that your spouse may have an inheritance, that you gather that information prior to the divorce by way of public record of a probated estate, or by production request, or interrogatories.

by

Post-Judgment Relief

Most agreements submitted to the court for enforcement or final judgments made by the court are difficult to change. There is the option of an appeal or motion for reconsideration within a certain time frame following the decision. The argument at that time is usually that a wrong decision was made based on the evidence presented or there was some error of law. The remedies available for possible modification or amendment to final orders or agreements become more limited as time progresses.

Under NJ Court Rule 4:50, the following are examples of instances where relief on the basis of a post-judgment motion may be pursued: (1) mistake, inadvertance, surprise or excusable neglect; (2) newly discovered evidence which is likely to alter the judgment/order and could not have been previously discovered with due diligence; (3) fraud or misrepresentation by the opposing party; (4) judgment or order is now void; (5) judgment/order has been satisfied, released or discharged or it is simply no longer equitable for the judgment/order to have prospective application; and (6) any other reason justifying relief.

There are still time limits to consider. Request for relief under the first three instances must be within a year after entry of the judgment or order. Relief under the remaining three grounds must be within a reasonable time which is interpreted to mean in a timely basis after discovery of the facts giving rise to the application. This option for post-judgment relief is often sought in family law matters as it relates to final judgments of divorce and equitable distribution provisions. Relief is only to be granted upon a showing of exceptional circumstances with specific emphasis on an unconscionable change in circumstances; otherwise, parties will be held to what they agreed to or were ordered to do within the court’s discretion.

Click here to read more on family law appeals.

by

How to Approach Debt in a Divorce

When you are getting divorced, most debt, with a few exceptions, accumulated during the divorce is marital debt regardless of the name on the debt. The first step in approaching your debt is to find out what you have. I recommend that you start by obtaining your free credit report. You can obtain one from each of the three major credit bureaus once a year. It may be a good idea to stagger it every three or four months so you can pull one from each throughout the year. Review your credit report to obtain balances, or identify accounts you either did not know about or forgot about. You should also have a title clerk do a search on your real estate to make sure there are no unknown liens on your house.

Next, compile an organized binder with a list of all your debts and start organizing your statements. You will want to obtain the statements of balances as of the date of your separation. You will also then want to start saving copies of cancelled checks and statements after your date of separation so that you can seek credit for payment of marital debt where it is allowed. In addition, you want to save the statements to show you did not increase the marital debt.

If you find yourself in a situation where you are unable to pay all the debt, you may want to consult with a bankruptcy attorney who can not only help you determine if it is a good idea, but may also be able to guide you in recovering money from creditors.

by

Checklist to Include in a Divorce Agreement

If you are drafting a Property Settlement Agreement for divorce or having one drafted for you, consider including the following topics in your agreement:

1. House/other real estate: Be sure you indicate who will get to keep the house, when the deed gets transferred into their name, who is going to prepare the deed, who will pay any fees associated with the recording and transferring of the deed. In addition, be sure to indicate when the mortgage, home equity loan or any other debts against the house will be refinanced into the name of the spouse keeping the house and what happens if they cannot refinance. Will the house be sold? If so, who keeps the proceeds? Indicate what percentage of the proceeds the other spouse is getting in the refinance or sale or the set price. If the house has to be sold, who is going to pay for repairs? Who will maintain the expense of the home until it sells? You may have a host of other issues if the house sells such as the selling price, terms, etc.

2. Retirement Accounts/IRAs/Pensions: If you have retirement accounts, be sure to cover the percentage of the account the other party is receiving, if any, or the set amount in dollars and how it is to be calculated. Will you need a QDRO to provide for a tax fee transfer and if so, who will pay the cost to have it prepared? Certified by the Court? Is there a beneficiary or survivor benefit? If so, is the spouse going to be named or given a percentage and is there a value to this?

3. Savings Accounts, checking accounts: Have you closed all joint accounts? Have all accounts been fully disclosed? Who is going to keep what funds? Any credits due to the other?

4. Business: If one of the parties has a business, has it be valued? Who is paying for the valuation? If it is not valued, do you agree on the worth or understand you could have had it appraised?

5. Other Assets: Have all assets been addressed? There could be rewards dollars, airline mileage rewards, timeshares, stocks, bonds, investment accounts, stock options, etc. Be sure you cover every possible asset and who is keeping what asset.

6. Taxes: If taxes are being filed jointly, how will the refund or money owed be divided? Who is going to claim the children in future years? If any taxes are owed as a result of any distribution of assets, who is going to pay the taxes?

7. Debts: What debts of the marriage exist whether in joint or individual names, and who is paying what? What happens if one party files bankruptcy on a joint debt?

8. Alimony, APL, Spousal Support: Is it being paid and if so for how long and how much and to whom? Under what circumstances may it terminate early? Is it being waived?

9.Full Disclosure: Has there been a full and final disclosure of all marital assets? What happens if an asset is discovered after the agreement?

10. Future Breach of an Agreement: What happens in the future if one party breaches the terms of the agreement? Will attorney fees and costs be paid by the other side? Will you go to arbitration?

11. Custody and Child Support: Both custody and child support do not need to be in your property settlement agreement in order to get a divorce as they are separate remedies. Any provision in your agreement regarding support or custody will be modifiable. Since schools require a copy of your custody order, it really should be set forth in a separate document.

These are by no means all the points you should cover in your agreement, but these are essential. You may want to consult with an attorney to assist you in this process.

For additional information see:/Family-Law-Divorce/Division-of-Marital-Property/

by

Living Together During Divorce

Sometimes when parties are divorcing, they continue to reside together under one roof while the divorce is pending. This can be the situation for many reasons. One reason may be that neither party has sufficient income to live on their own. It may be that all their funds are tied up into the house and they do not have a significant payment to put down on another residence. Sometimes, they both want to keep the house in the divorce. In others, it may be that neither wants to move out when there are children involved. Whatever the reason, it can be very difficult to live together while the you are divorcing and setting some ground rules may be in order.

When you have children and are in the process of divorce, it is best that you try to maintain a stable home environment for the children. Do not start dating and bringing your new partner into the home to visit while you are still living with your spouse. It can be confusing for the children and can lead to conflict. Likewise, do not bring other families into the home to live unless your spouse agrees. This can lead to an action in Special Relief to try to evict you and your unwanted guests. In addition, keep your arguments out of the earshot of the children. If you need to address things that stir emotions, put it in writing to your spouse or create a space in your home away from the children where you can go to talk.

Sometimes when you are living together while divorcing, it is not a bad idea to try to create a custody schedule if you have children. This allows you to test out what may work or not work in the future when you eventually do separate. It does not mean you have to leave or not see your children when you are in the home together but you may want to set up rules on responsibility for the children on particular nights and weekends, which may involve all the care for the children, from cooking, to dressing, feeding, bathing, etc. so you have a trial run before you actually physically separate.

Financially, many parties who live together while they are divorcing continue to manage their household expenses as they did when they were not divorcing. This seems to lead to less conflict in the home. You can still and should establish your own separate account so that any excess funds you generate from your own work can be deposited into that account. You may want to deposit your earnings in your separate account and transfer money into your household account to pay the bills. Any money you earn after separation that you keep separate will not be considered in the divorce. You definitely want to close joint credit cards unless they are used strictly to pay household expenses.

While it may not be ideal to be getting divorced and still living together, it can be easier when you set up rules that both parties follow.

by

What Happens to the Divorce if you Spouse dies?

If you are getting a divorce, what happens if your spouse passes away before it is finalized? Under Pennsylvania law, if you have established grounds for divorce, the Family Court may still proceed with equitable distribution of your assets. They cannot grant a divorce posthumously, but you can still seek your share of the assets that you both accumulated while you were married. This is especially important in cases where the assets are held in your spouse’s name. You will need to file a Petition to substitute your spouse’s estate as the other party.

If you do not have grounds for divorce, then the divorce action will terminate and you will have to pursue your rights in Probate Court. Under the Estate laws, as a surviving spouse, you are entitled to receive in Pennsylvania 30% of your spouse’s estate even if they did not include you in the will. You would have to file a Petition to seek your elective share of the estate. If you have grounds for divorce at the time your spouse has passed away, you lose your right to seek the elective share.

If you have a spouse who is ill while you are getting divorced, it may be important to make sure you have established your grounds for divorce. In Family Court, there is a greater possibility that you will receive more of the assets since it is a Court of equity. It does not mean that since your spouse died, you will receive everything, but you likely will fair better than if you have to go to Probate Court. In order to establish grounds under the no-fault statute, you either have to have both parties consent to the divorce after 90 days of service or you can move to establish the grounds after a two years separation.

For additional information see:/Family-Law-Divorce/Grounds-for-Divorce/

 

by