Do I Need a Child Support Order?

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When two people have a child together, whether married or not, sometimes it just does not work out and they decide to separate. It is great when two parents who are no longer together have a strong co parenting relationship and can remain amicable with each other for the sake of their children. If you find yourself in one of those relationships you might think that you do not need a child support order because you and the other parent work everything out on your own and so far you have had no issues. While it may seem great that you are able to work everything out between the two of you, it is best to seek a child support order issued by the court.

Why would you want to get a child support order when you have been working it out yourselves? What happens if the payments that you have relied on and worked out between you two stop coming in. What course of action do you have? You call the other parent, you email them but no matter what you do they still are not receiving any financial assistance for your child. They keep telling you they will have it to you soon and then months go by and you have not received anything. By having a child support order you are protecting yourself from this scenario. In most child support orders, if the other parent is a W-2 employee, the child support will be attached to the other parent’s wages so as long as they are being paid you can be assured you will get your support payment. If there is an order and the payments are made directly to you and they stop paying you have options there as well if you have a support order. You can file for enforcement of the child support payments. Having a child support order protects and reassures you that the financial support you rely on for your child will not just disappear one day.

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Desperate for Divorce but Worried about Abuse?

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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.

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Support during Covid

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Both child and spousal support awards are primarily based on the income of the parties. Prior to establishment of an Order, both parties are directed to show proof of income and relevant expenses. With respect to income, this can include recent pay stubs, last filed tax return and W-2, disability payment statements, retirement payment statements, unemployment, etc. Relevant expenses may include health insurance premiums, mortgage payments, child care costs, and private school tuition. It is the responsibility of the parties to petition the court to review a previously entered support Order if circumstances (i.e. income of parties or expenses) change.

During this pandemic, many individuals have experienced changes in income and expenses. With many industries affected by various policies intended to slow the spread of coronavirus, hours have been cut or jobs lost. Where schools have closed, there could be new child care costs if both parents are still working outside of the home. Alternatively, child care costs may have been eliminated if a parent is now working from home and able to watch their child as well. Regardless of the nature of the change, the first step to take is to file a request for modification if you have a court-ordered support award. Second, the filing party should gather all the documentation reflecting the changes. It is also important to attempt to determine how long the new circumstances will last. For example, if you have a date that you are returning to work or that your children are returning to child care. The courts understand this is an unprecedented situation for all of us and are doing their best to balance the need for support with the current circumstances of the parties.

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Custody Exchanges during Covid-19 Pandemic

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Our country is still battling the spread of a new virus and with that, new questions as to custody exchanges in the event of confirmed Covid-19 diagnosis or suspected exposure. First and foremost, be compliant with your existing Order to the extent possible. This virus is not a reason to keep your child from seeing their other parent. If exact compliance with your Order is not possible, be reasonable in making necessary accommodations to permit shared custody to continue. It’s also key to try to be on the same page regarding best practices. Be prepared to discuss and model good behavior for your child(ren) in both homes including hand washing, wiping down surfaces, wearing a mask, and social distancing.

Be transparent and provide honest information with respect to any suspected or confirmed exposure to the virus and try to agree on what steps you will take to protect your child(ren) from exposure. The courts have provided some guidance in the event of confirmed Covid-19 diagnosis or display of symptoms. If the reporting party has custody at the time, they should maintain custody until the symptoms resolve. If the non-reporting party has custody at the time, they should keep the child(ren) until the other parent has recovered. An exception can be made if parent has work obligation and cannot provide adequate care for the child(ren), in which case the child(ren) should return to the other parent. If there is a temporary pause in your schedule because of diagnosis or displayed symptoms, endeavor to work with each other to maintain a relationship through other means such as Skype, Zoom or Facetime.

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Timeline for Kinship Adoption

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The rights of the other biological parent will need to be terminated in connection with any adoption. Their parental rights can be terminated voluntarily or involuntarily. With voluntary termination the other natural parent will sign a consent to the adoption which is subsequently attached to the Petition for Adoption. There must be at least thirty (30) days between when the consent is signed and when adoption petition is filed with the court since there is a thirty (30) day revocation period. With involuntary termination, you will plead the applicable grounds for involuntary termination within your adoption petition. A filing fee is payable to the county at the time you file your petition for adoption. After filing the Petition, you will receive notice of when you are scheduled for your hearing. You will need to notify any party that is required to receive notice of the hearing per the adoption statutes in advance of the hearing.

With a kinship adoption the prospective parents will need to have three background checks completed prior to filing an adoption petition. Presently, the required background checks for Pennsylvania include (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare. The results of these background checks should be attached to the adoption petition. A home study is not required. A hearing will be scheduled by the court within a few months from filing the petition. If heading straight to adoption hearing because natural parents consent to adoption the total process can be completed in a few months. If an involuntary termination hearing is required before the adoption hearing the process can take twice as long.

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Support Between Spouses

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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.

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Protection From Abuse

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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.

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Medicaid Planning

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Medicaid is a need-based health care program that many older adults end up utilizing in the event of long-term care due to the expenses involved. Since Medicaid is need-based, there are limits on the amount of income and assets a party can have. An individual should plan ahead to make sure any countable assets and income are structured so as not to affect any future applications for Medicaid.  Additionally, individuals may want to shield assets such that Medicaid cannot assert a claim against their estate after their death for their subsidized medical expenses. Appropriate estate planning can assist in this regard.  Medicaid can look back five years from the date of an application so it is important to do any relevant estate planning well in advance.

Certain assets are not countable in terms of eligibility for Medicaid. One of the big exemptions is your home. Current federal law allows one residence to be exempt with a cap of $560,000 for the total equity of the home. Even if the home is above that amount of equity, it may still be exempt if a spouse, child under 18 or permanently disabled child is still residing in the home. In terms of income, a party seeking Medicaid cannot have more than $2,000 per month income. There are additional rules as far as assets your spouse can keep under the anti-impoverishment provision. It is important to look at your estate plan well before the need for any long term care arises to protect your assets and estate while maintaining the ability to use Medicaid to assist with medical costs.

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Inventory of Estate

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An inventory must be filed with the court in the course of administering an estate. This task would be the responsibility of the executor or administrator of the estate. The inventory should identify all probate assets of the decedent at the time of death. This may require some investigation by the executor/administrator. Ideally, the decedent would keep a list of all assets and debts along with their will. They make go a step further and include user name and passwords for their accounts along with this list since a majority of account maintenance and monitoring now happens electronically. If there is not a list provided, a good starting point is to monitor the decedent’s mail for evidence of statements for accounts.

The inventory filed with the court should include the value of the assets listed as of the decedent’s death. You can contact the respective institutions to request a date of death balance if not otherwise ascertainable by the statements available. The inventory is to be filed with the court within nine (9) months from the date of death unless an extension is granted. If additional assets are discovered after filing the initial inventory a supplemental inventory should be filed with the court.  By April M. Townsend

 

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Guardianship of a Minor Child

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A guardian can be appointed to make decisions on behalf of a minor child. Temporary guardianships can be put in place without a court hearing. The guardianship would transfer the authority to make decisions for a minor child from the existing parent/guardian to another person for a limited time. A written agreement is required to identify exactly what authority is being transferred under the guardianship. Ideally, the agreement should be notarized in addition to being signed by all parties. The parties need to be of sound mind when signing the agreement.

Temporary guardianships can be revoked at any time.  For this reason, it is important to work towards other legally enforceable means for retaining custody of the minor if that is the goal. Temporary guardianships can be used so that prospective adoptive parents can take care of the intended adoptee while the adoption hearing is pending. This would enable the adoptive parents to make any medical decisions, enroll the child for school, etc.  Once parental rights are terminated, custody of the child is put with the prospective adoptive parents by court order. Once an adoption is approved, the prospective parents have final custodial rights over the child just as if they were the natural parents.  By April M. Townsend

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