If you are currently married and in a physically or mentally abusive relationship, it can be a very tarrying situation that you might be desperate to get out of. You might be thinking of leaving or filing for divorce but have that voice in your head telling you it is not a good idea because of the potential reaction from your spouse. What if filing for the divorce causes the abuse to escalate when they find out? If your spouse already has a history of abuse towards you, the fear you have might take over and prevent you from following through with the decision to follow through with filing for divorce, and separating from them finally.

If there is a history of abuse you can file a petition for a Protection from Abuse Order while you prepare to file for divorce. To get a protection from abuse order you would first want to file with the court. Then likely, a Judge would issue a temporary order without the abuser being present while a future hearing date is scheduled. Both you and the abuser would then have to appear before a Judge at the later date. At this hearing either the abuser can consent to the Protection Order, or request to have a hearing where the Judge would hear testimony and make an order. These types of orders can last for any duration of time up to 36 months. If the abuser were to violate any such order they would be held in contemp. Consequences of a contempt violation can range from fines to jail time. When you are in an abusive marriage and desperate to get out but just fearful of what will happen if you try, a Protection from Abuse order can grant you that peace of mind to be able to file and get divorced with added protection from your abuser’s potential reaction.

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.

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 calculated by multiplying the paying party’s income by 33% and the receiving party’s income by 40%. The difference of these figures would be the support award. If there is also a child support order, spousal support should be calculated first. Multiply the paying party’s income by 25% and the receiving party’s income by 30% and then calculate the difference. Child support is then calculated with the spousal support award being deducted from the party paying spousal support and added to the party receiving spousal support.

There are some defenses to paying support to your spouse. One exception to the duty to pay spousal support is where the spouse seeking support has engaged in conduct that would constitute grounds for a fault-based divorce such as adultery. 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. Alimony pendente lite (APL), a form of spousal support payable while a divorce is pending, does not allow the same defenses. The purpose of APL is to allow the income dependent spouse to participate in the divorce action and fault is not a factor. Alimony, spousal support paid after entry of the divorce decree, can be terminated by proving the spouse receiving alimony is living with a new lover or is remarried. Consult with one of our experienced attorneys to understand the different types of support that may be awarded between spouses.

A PFA Order is a civil remedy to end abusive relationships. Remedies for a successful PFA petition can include having the Defendant removed from a residence that was previously shared, restrictions on contact for up to three (3) years, relinquishment of firearms or other weapons, reimbursement for related expenses or out of pocket costs suffered, temporary support, and in some cases, a custody schedule. It is possible to list multiple persons in need of protection under the PFA in one petition including children. A Protection from Abuse (PFA) petition requires the petitioner to identify the defendant, state the incidents constituting the “abuse” as well as any prior history of similar incidents, provide notice of any weapons involved, and set out the relief requested.

A PFA can only be filed if there is a relationship between the Petitioner and Defendant. Recognized relationships include spouse or former spouse, parent of child with Defendant, current or former sexual/intimate partner, child of Plaintiff or Defendant, family member related by blood or marriage, and sibling. Abuse, for purposes of obtaining a PFA, is defined as

physical violence or imminent threat thereof, stalking or any other course of conduct which would place a person in fear of bodily injury. The party pursuing a PFA order must establish by a preponderance of the evidence, or more likely than not, that some abuse occurred. Violations of a PFA may be criminal in nature depending on the nature of the violation. Criminal charges may also be pending simultaneously with a PFA petition.

To effectuate a legal name change, you will need to file a petition with your local civil court.

A filing fee is due to the county at the time of filing as well as copies of your fingerprints which can be obtained at your local police department. A hearing on your request for name change will be scheduled for a few months later. If you are filing a petition on behalf of a minor, you will need to effectuate service of the petition and hearing date on the other parent. If you are filing as an adult, prior to the hearing date notice of the petition must be published in the county law reporter as well as a newspaper of general circulation. Additionally, adults must have checks through the Prothonotary’s office for civil matters, the Clerk of Courts for criminal matters, and the Recorder of Deeds for any property issues. If you have resided outside of your current county within the prior five (5) years, these checks should also be performed in the county where you used to reside.

At your scheduled hearing, you should appear with proof that all prerequisites have been met in terms of publication, background checks, and service, if applicable. Name changes are permissible so long as it is not sought for illegitimate purposes and the person seeking a name change does not have certain criminal convictions. Criminal convictions that will bar a request for a name change include murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, statutory sexual assault, sexual assault, aggravated indecent assault and robbery.

If requesting a name change of a minor and the other parent does not agree with the name change, the court will decide after hearing from the parties based on whether the request for name change is in the child’s best interests. The party requesting the name change has the burden of proof and must convince the court how the requested change would serve the child’s best interests.  By April M. Townsend

 

Marital property is defined as assets or debts acquired during the marriage. Marital property is subject to equitable distribution between the parties as part of a divorce action. There is a process to acquire information on potential marital property if you are unsure of what assets and debts would comprise marital property in your case. Discovery is the process of obtaining information from the opposing party in the course of a lawsuit. Discovery is allowed in any divorce case which includes a request for equitable distribution or alimony. The information requested in discovery must be relevant to the case. In divorce, the court gives much leeway as to what is relevant since the factors for equitable distribution allow for broadness. As a practical matter however, you will want to focus on assets and debts and their values as of date of marriage, date of separation and present as these are the important dates with respect to valuation.

Formal discovery methods include interrogatories, depositions, production requests, subpoenas to produce documents, and requests for admission. Interrogatories are a written set of questions for the other party to answer under oath. A production request identifies which documents a party is seeking. Subpoenas are utilized as well when it is necessary to get information directly from the source in the instance a party does not have it or will not cooperate in turning it over. Authorizations can be acquired in lieu of a subpoena if a party has not produced the documents themselves but is willing to cooperate in signing the authorization for the opposing party to do the legwork in obtaining the documentation. Due to the expense to the parties for formal discovery, parties often agree to exchange information informally. Consult with an experienced family law attorney to discuss the marital property in your case and the best way to obtain the necessary information to effectively handle your case.  By April M. Townsend

Pensions, as well as other retirement plans, are often one of the assets up for division in a divorce. The court will equitably divide the marital portion of a pension plan after considering all the relevant factors in equitable distribution. The marital portion of a plan would be the portion that accrued from the date of marriage through the date of separation. In some cases, the entire pension will be marital depending on the timing of the marriage alongside the start date of the pension plan. A qualified domestic relations order, or QDRO for short, is a document used to effectuate division of certain retirement benefits.

A QDRO can facilitate a tax-free transfer of retirement benefits from one party to their new or soon-to-be ex-spouse. The receiving spouse would then be taxed as they withdraw the money as the tax laws provide. The exact nuances of how the plan/benefit is split and what options are available will vary based on the type of plan. It is always advisable to review the procedures for the specific plan you may need distributed to understand what their rules and policies are when it comes to splitting a participant’s benefits via QDRO in the context of a divorce. You will also benefit from having an experienced family law attorney review the terms of the QDRO before you sign off on it and submit it to the Plan Administrator for implementation. Finally, most plans have very specific requirements as far as how the language of the QDRO is to be worded in order for it to be accepted and processed. At a minimum, a QDRO should identify the parties, the plan at issue, and the amount going to the receiving party either as a lump sum or a percentage of the total benefit. It is wise to enlist the services of an expert that routinely drafts QDROs to ensure the language is correct and all requirements are met.   By April M. Townsend

Each individual is permitted to gift $15,000 in assets each year without tax implication. $15,000 is the annual cap for federal gift tax purposes. There is not a gift tax in Pennsylvania. Even individuals who gift above this yearly threshold, may not need to pay taxes. Amounts in excess of the yearly limit can be assessed against that individual’s lifetime gift tax exclusion. Presently, the lifetime gift tax exclusion is 11.18 million. Most individuals will not exceed that sum over the course of their lifetimes.

You should be aware that gifts made within a year of death may be subject to Pennsylvania inheritance tax depending on the amount and nature of the gift. There are some gifts that are non-taxable and do not count against your annual exclusion or lifetime exemption. Gifts between spouses can be unlimited. Payments for tuition or medical expenses paid directly to respective institution or facility on someone’s behalf are not taxable. Gifts to political organizations and charities are also under the umbrella of non-taxable gifts. Any individual making a taxable gift above the annual exclusion must complete Form 709, the Gift Tax Return. Filing of the return does not mean any taxes are due however if still within your lifetime exemption. Consult with an experienced estate planning attorney to make further understand your options in making gifts as part of your estate plan.  By April M. Townsend

Many people consider their pets as members of the family and accordingly, when the family breaks up, custody of the pets can become an issue. While pets may be considered members of the family from the perspective of the owners, the courts in Pennsylvania deal with pets the same way as they deal with other inanimate personal property in the event of a divorce.

Parties can elect to enter an agreement on who will get the family pet or if there is a schedule to share the pet. This written agreement should be submitted to the court so that in the event either party does not comply, the disgruntled party can file for contempt and the court can assist in enforcing the agreement. The other option is to seek court intervention. This would require raising a count for Equitable Distribution in the Divorce Complaint. If you must go this route, understand the court will give the pet to one spouse or the other just as it would any other personal property such as furniture or TVs. Increase your likelihood of retaining your pet by showing you were the party that purchased the pet and/or you were the party that primarily cared for the pet in terms of vet appointments, grooming, etc.

 

 

 

Once you have identified your marital property, the next step is reaching an equitable distribution. Equitable distribution in Pennsylvania is not an automatic 50/50 split. Instead, there are thirteen (13) factors to be considered by the court in determining the appropriate division of a marital property. A few of the factors include the length of the marriage, sources of income and needs of each of the parties, value of property set apart to each party, standard of living established during the marriage, economic circumstances of each party as time division of property is to become effective, and whether either party will be serving as custodian for dependent minor children.

In a divorce involving equitable distribution, the parties are tasked with identifying all the property to be considered. Each party is to file an inventory of assets. The Inventory should list all marital assets and debts at issue, its value or balance, anything that has been transferred, and anything a party asserts is non-marital in nature. An Inventory must be filed prior to requesting a hearing on equitable distribution. You can supplement the list of marital property if you do not have knowledge of all the assets and debts at the outset. A pre-hearing statement must also be filed if a party is seeking a hearing to address equitable distribution. Similar to the Inventory, you will list all marital assets and debts. You will include as exhibits the statements or documents for each item confirming their value or balance. It is important to work with an experienced family law attorney when dealing with equitable distribution matters to ensure all marital property is identified, valued and submitted to the court in a timely fashion.  By April M. Townsend