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/

 

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Divorce and When to get the House Appraised

If you are getting divorced and own a home, the value of the home is considered for purposes of equitable distribution. If the home was owned by you prior to the marriage and remained in your name alone, the increase in value of the home from the date of the marriage until the date of separation is considered marital. In this case, you should get two appraisals done on your house, one from the date of the marriage and one as of the date of separation.

If you received the home as an inheritance, you will need the values of the home as of the date of gift to you and as of the date of separation if you kept the home in separate names. Since inherited assets are non-marital, as long as they are kept separate, only the increase in value of the asset from the date received to the date of separation is considered. You again will need two appraisals to reflect these dates.

If, however, you own a home that was purchased during the marriage, you will want to delay getting the house appraised until you are either ready to sign an agreement or go to a divorce hearing. In Pennsylvania, the Court values the home as of the date of distribution so by getting an appraisal close to the date of your divorce hearing gives the most accurate value. If you get the house appraised too early, you may end up having to pay to have it appraised again.

If you own a home that was premarital or inherited, but you added your spouse’s name to the deed, you will want to get an appraisal at the time you married or received the asset, at the time you gifted it to the marriage and at the time of distribution.

When you get your house appraised, you may want to also consider whether you need to also get a fair rental value of the house included in the appraisal. If the house has no mortgage or a very low mortgage and you are not living in the house, you should get the fair rental of the house established in your appraisal so that you can make a claim for this value in equitable distribution.

It is also important to remember that you do not need an appraisal done if both you and your spouse are able to agree to the value of the home. You may also want to use a Comparative Sales Analysis in an effort to come to an agreed price.

If you are having trouble getting access to the home to have it appraised, there are remedies and you can file Special Relief with the Court in divorce in order to gain access for purposes of an appraisal. In that instance, you should consult with an attorney.

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

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Dating During and After the Divorce

When you are going through a divorce, you may wonder whether you should be dating and if you do how it will impact your case. Once you are separated, even though the divorce is not yet final, you are permitted to date without it being considered grounds for adultery in the legal arena. While adultery is a factor in the consideration of an award of alimony, it refers to relationships that began prior to a separation not after. Once a divorce complaint is filed you are clearly separated and for some that may now involve the choice to date. If you are entitled to support or alimony, you may date both during the divorce or afterwards. As long as you do not cohabitate, it will not affect your alimony award. Cohabitation can be found even if the other person has their own residence if they spend significant overnights with you.

Whether you choose to date during or after the divorce is a personal choice. It is also a personal choice as to whether you want to disclose it to your former spouse. Sometimes it may help your former spouse accept that the relationship is over and in other cases it may add such fuel to the fire that it makes an amicable settlement impossible. In the latter case, you may want to wait until the divorce is final. If you have children with your former spouse, you should consider disclosing it to them at the point that you are ready to introduce your children to that person. Oftentimes, this is where conflict occurs. It is only natural for your spouse to have concerns about some third party around their children that they do not know, especially if this person is going to spend significant time with your children. If you really want avoid litigation in custody, you may want to provide as much information or even an introduction to your former spouse depending on the circumstances in order to avoid unnecessary litigation in custody. If you consider how you would want to be treated if you were in the situation, it may help to guide you in how to approach the situation with your former spouse.

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What happens if I don’t want a divorce?

Pennsylvania has two no-fault grounds for divorce. One is where both parties consent after 90 days of one being served the complaint and the other is where one party does not consent and the other party moves the divorce forward after a two year separation. If your spouse wants a divorce and you do not want a divorce, ultimately, unless they change their mind, they will be granted a divorce. Even if you have children and you contest that it is not in the best interest of the children, if your spouse does not wish to be married anymore, ultimately, the court will grant a divorce. You can delay the divorce by not consenting to the divorce. This will force your spouse to wait the two year period from when you separated before they can move the divorce forward. Even at that point, you can still contest that it is not irretrievably broken or that the two year separation has not occurred. You can say discovery is not completed and further delay the divorce or file an appeal. While there are many ways that a divorce can be delayed, ultimately, it will become final if one of the parties wants a divorce. The day will come when the marriage will end. While you may not want a divorce, you should weigh the benefits of delaying it against the costs. Unless you really think there is a chance of reconciliation if you delay it, or you benefit financially for health insurance purposes, sometimes, moving on quicker and accepting the ultimate outcome is better. It enables you to heal quicker and create a life that does not involve the pain and emotional turmoil that a drawn out divorce creates. It also may be financially better to have the finality and save in extended legal fees. Finally, it may also make it possible to move on to a different relationship with your ex-spouse where you are able to maintain a civil relationship verus one filled with resentment for keeping them in a marriage that they no longer desire.

For more information, see:/Family-Law-Divorce/Grounds-for-Divorce/

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How to Divorce a Spouse you cannot locate

If you want to divorce and are not able to locate your spouse, it is not completely hopeless to get a divorce. There are challenges involved that are different than when you have an address for a spouse. In order to divorce your spouse without an address or location, you will need to first make attempts to locate your spouse. Your attempts need to be documented. Some ideas would be to send mail to their last known address and save the envelope showing that it was not deliverable and that there is no forwarding address. You may also want to contact relatives of your spouse and keep copies of letters or calls you have made to attempt to locate them. You may also want to get statements from relatives or prior coworkers indicating that they have no idea where your spouse is located. You may even want to hire a professional to try to locate them through their date of birth or social security number. You may want to contact the Post Office and request freedom of information for a forwarding address. If, after you have exhausted all attempts to find your spouse and you still have no success, you can then petition the court to serve them the divorce by publication. You should be prepared for the costs of publication. Newspapers charge based on the number of words, and it is not unreasonable to expect that this cost will exceed $ 1000, even if you have no assets to divide which is the case in most divorces that involve a missing spouse.

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Equitable Distribution and Worker’s Compensation

One asset in equitable distribution or support that parties should consider when getting divorced is worker’s compensation awards. Depending on what state the worker lives, there may be a component not only for lost wages but also an award comparable to a personal injury award. In these instances, the lost wages should be calculated into any support award and the again, you will need to decide whether you want to lump sum the award portion as either income for purposes of support or as an asset for purposes of equitable distribution. In the event that it is considered as income, you cannot double dip and claim it as an asset. If, however, the award is for an injury that occurred outside of the marital period, either before or after separation, you will need to include it as income as you cannot include it as an asset. Your support order should be very detailed and specific and identify exactly what portion of any worker’s compensation is included in the calculation of the income. Whether to have the worker’s comp treated as an asset or income really depends on how the court will treat the asset. In some instances, the court may award the majority of that asset to the injured party and it may be better to then include it income if you are also eligible to receive support. Speaking with your attorney about the expected amounts would be wise to do before you make that decision so that you can decide whether it is better as support or as an asset.

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

 

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Tips when first separating from your spouse

If you are separating from your spouse, there are various things that you should do or not do during this time:

1. You should freeze any joint credit card debts so that your spouse does not continue to increase debt in your name.

2. You should freeze joint bank accounts if you are not going to be living together. If you need some of the funds to live, it is a good idea not to take more than half and to leave half for your spouse to prevent litigation. Your spouse can and sometimes will wipe out the entire account forcing you into litigation.

3. You should figure out a budget for yourself best on how much you earn and how much you will expect to receive or pay in support so you can figure out how much you can afford when looking for a place to live. An attorney can help you figure out this amount.

4. You should collect your statements from all your accounts both debt and assets so you can establish what the values were at separation.

5. You should not drop your spouse or children from health insurance as you may be required to continue coverage during the divorce.

6. You should not change the beneficiaries on any insurance policies until after your divorce and only if there is no court order to maintain coverage.

7. You should pull your credit report so you do not have any surprises on what may or may not exist during the divorce.

8. You should gather other important documents, including your marriage certificate, your deed, car titles.

9. If you are struggling emotionally with the separation/divorce, you should engage a good therapist to help you through the process.

10. If you are expecting to receive support you should file once you know you are going to move.

11. If you expect to have custody, make sure you move locally or first obtain permission from the Court.

12. Take the personal property items that are most important to you as oftentimes it is very difficult or cost prohibitive to fight over personal property later.

13. If possible, talk to your spouse and try to come to terms on things as much as possible and consider mediation or collaborative law as an option.

14. Hire an attorney who specializes in divorce if you decide that you need legal assistance to help you with custody or support or if you decide that divorce is your next step.  You should not have expectations based on what happened with a friend or relative’s similar situation.

15. Remember to be civil with your spouse. It will be easier and less expensive if you can handle matters with a respectful and practical approach.

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Who Pays What During a Divorce

Child Support: The party who does not have the majority of time pays child support or if the parties have equal custody time usually based on overnights, the party who earns more pays child support.

Spousal Support/Alimony: Paid by the party who earns more income

Mortgage/household bills: Paid by the party who remains in the home

Car Payment: Paid by the party who uses the car

Car Insurance: Paid by the party who uses the car

Medical Insurance: Paid by the party who carries the insurance and allocated during child support and spousal support in proportion to incomes

Home Equity Loan: Depends on what the loan was used for. May require a special relief action.

Credit Card Bills: Responsibility of both parties for what accumulated during the marriage. Typically paid by party whose name it in to protect credit but any payments made after separation should be document for shared reimbursement.

Repairs to House: Routine repairs are paid by party using home. Repairs that increase value f home benefit both parties and any payments made post separation should be documented to seek a credit.

Taxes: Parties may choose to file jointly or separately. If file jointly, usually a joint expense.

College Tuition: Neither parent is responsible for college tuition for children and any payments are voluntary and not reimburseable.

Legal Fees: Each party is responsible to pay their own legal fees

Filing Fees: The party who files

Expert Witness Fees: The party who retains the expert

Business Valuation Costs: The party who seeks the valuation

Appraisal: The party who obtains the appraisal

Pension Valuation: The party who obtains the valuation 

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Another Approach to Divorce – Collaborative Law

When getting divorced, there are several different approaches that a couple can choose. Some people opt for mediation to try to resolve their disputes and save them money. Others, take the traditional approach and opt for attorneys to handle everything. There is another approach that is less known but can be quite effective – collaborative law. Collaborative law, unlike mediation, involves two attorneys similar to the traditional approach. What makes collaborative law different, however, is that both spouses agree from day one that they want to settle everything out of court. They formalize this agreement in writing with their attorneys wherein they agree that they will make any and all efforts to resolve their issues involving divorce, custody, and support out of court. While they always reserve the option to go to court if they cannot reach an agreement, there is a hefty price to pay – loss of representation by both side’s attorneys. Even if one party is still willing to work it out of court, both spouse’s and their attorneys agree that if one of the parties decides to litigate, both attorneys will withdraw from the case and both parties will have to start over with new attorneys.

This option is a great option for parties who are both committed to settling their differences out of court but want the benefit of having legal advice that mediation does not provide. When hiring an attorney, you should ask if they are willing to handle collaborative law cases if this is an option that appeals to both you and your spouse.

 

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Dividing a Pension in Divorce and the Survivor Annuity

Oftentimes when parties get divorce, one of the biggest assets that they have accumulated is the pension of one or both of the spouses. In a Pennsylvania divorce, the pension portion that accumulates during the marriage is what is considered marital. There may also be a non-marital portion for the years of service prior to the marriage or the years of service after the marriage. When getting divorced, there are two methods of getting each spouse their share of that pension. One method is to do a percentage distribution of the marital years. When this method is use, the spouse receives a percentage multiplied by the number of years married that the pension accumulated divided by the total number of years that the pension accumulated. This is usually distributed by a separate document called a Qualified Domestic Relations Order which is often paid to and drafted by a company or firms that handles QDROs. The other method of distribution, and the preferred method by the Court (according to case law) is an offset. Under this method, the marital portion of the pension is assigned a dollar value based on a report prepared by a company who does pension valuations. This dollar value of the pension can then be swapped with other marital assets as an offset.

One often overlooked part of a pension is the survivor annuity. If a party has a pension, then the party who has the pension is given the option at retirement to select from several different options upon their death. This could include no survivor, a 75% survivor, 50% survivor, etc. This survivor benefit election is important in that if no survivor is elected, the one spouse will receive nothing upon death of the party who holds the pension. If a survivor benefit is elected, it reduces the monthly payment of both spouses when they receive the pension. Since only the spouse who will continue to receive the pension upon death of the pension holder will benefit, the surviving spouse has an asset known as the survivor benefit annuity which must be valued separate and apart from the principal of the pension. It is something that should be addressed at the time of divorce as once the pension is in pay status this election cannot be changed.

For additional information see: /Family-Law-Divorce/High-Income-Net-Worth-Divorce/Pensions-in-a-Divorce/

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