Who provides health insurance during/after the Divorce?

When the parties are married, usually, one of the parties carries the health insurance for the parties and any minor children. The Court keeps the status quo as much as possible while the divorce is pending. If you are carrying insurance for your spouse, you cannot drop them until the divorce is final. Health Insurance is an issue that arises in support court through Domestic Relations. As long as health insurance is available at a reasonable cost through work, that parent will be required to provide health insurance for the children.

If both parents are working and both parents have health insurance available for the children through work, then the Court will look at the cost of the plans and the benefits provided to determine which makes more economic sense. If there is a plan that is relatively cheap but provides for a high deductible, this may not be the best plan if the children have routine issues. It is important to not only look at monthly premium, but the deductibles, the special medical needs of the children, the cost of the copays for a doctor visit, specialist visit, etc. in order to determine which plan is better.

Whichever plan is chosen is paid by the parent through their employment and a portion of the cost for the children is reimbursed through the child support order. If you are the parent who provides health insurance and are receiving child support, you will get this portion included in addition to your basic support amount. If you are the parent who provides health insurance and are paying child support, then it will appear as a credit off of the basic child support that you pay.

The party who receives child support will be required to pay the first $ 250 per year per child of unreimbursed, out of pocket medical expenses. Once the $ 250 dollar point is reached, the order will allocate any remaining bills to be shared in proportion to income. It is the responsibility of the parent receiving support to document and provide proof of expenses to the other parent. Failure to pay these expenses can result in a contempt order. If there are significant, routine medical expenses, you can request that they be factored into the basic support.

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Earning Capacity in a Divorce or Support Action

If you are getting a divorce and there are child or spousal support issues involved in your case, the Court can hold you to an earning capacity if you are not working or you are not fully employed. What this means is that Court can assess you with a potential income based on your work history, education, skills, or even possible earnings. For example, if you work 15 hours a week and earn $ 20 an hour, there is a good chance the Court can impute earnings of 40 hours a week at $ 20 and hour on you when they determine support. This does not mean you have to work 40 hours but it means that income will be used to determine how much support you will receive from the father of your spouse.

Sometimes a vocational expert may be hired to assess your abilities to earn a living and this person will testify and write a report on what they think is a reasonable earning capacity. This is not always employed due to the cost of hiring a vocational expert and bringing them to Court but may be useful when an employee has significant education or skills that should generate a higher income.

If you are self-employed, the Court may also impute an income to you that differs from what you report on your tax return. The Court will scrutinize you more closely when you are self-employed, reviewing tax returns, personal expenses paid by the business, your income and expenses form. If you attempt to testify that your income is less than what your expenses clearly seem to generate, the Court may decide your income is based on the expenses you pay out.

If you are disabled or you are receiving unemployment, the Court will use the disability or unemployment income as your income rather than assess you will a full time earning capacity. In some instances, a court may attempt to hold you to the minimal income you can earn while still collecting benefits, but you should never agree to this. If you are disabled and have children, you may want to also be sure you have applied for the benefit for the child. If you are disabled but you have not yet gotten approved for Social Security, the Court may hold you to an earning capacity. In those cases, you want to get a disability note and records certified from your doctor.

For additional information, see:com/Family-Law-Divorce/Divorce-Involving-Business-Owners-the-Self-Employed/

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Support for Adult Children

A child support obligation typically ends when the minor child is eighteen or graduates high school, whichever is later. However, in certain circumstances the obligation for support may continue past those milestones. One example would be if the child has a disability. Pennsylvania courts have held that the child support guidelines would continue to apply in the instance of a child who, despite age, remains unemancipated or unable to support themselves by virtue of a disability. The court is to determine if an adult child has a mental or physical condition that prevents the child from earning a living wage. Additionally, the court should look to see whether an order of continued support would result in undue hardship on the parents.

In Kotzbauer, 2007 Pa.Super.357 (2007), a Father appealed a support order regarding his then nineteen year old daughter. The daughter had recently been diagnosed with epilepsy which led to seizures, brain malformations and migraine headaches several times a week. While she had a driver’s license, attended community college and had a part-time job, ultimately the trial court held that the evidence presented still established she was unable to support herself. She had poor grades in school due to an inability to focus, often missed work or left early, and relied on her Mother to keep up with all her prescriptions, medical appointments, food, clothing and housing. The majority of states recognize an on-going duty of support if adult children are unable to support themselves due to a demonstrable physical or mental condition impacting their ability to earn a supporting wage.

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Self-Employed Parties and Support

It is important to take a very close look at the finances of a self-employed party in a support case. Generally, actual earnings will be utilized to accurately measure the income available for support and ability to pay. However, in a few circumstances, including at times the case of a self-employed party, earning capacity may be used instead to effectuate economic justice. For example, a self-employed party may reduce the salary they pay themselves in order to try to reduce the support obligation. Additionally, many self-employed parties claim a lot of deductions on their tax returns before reporting their net income. A portion of these deductions may be added back when the court is trying to determine a more accurate figure for income.

Specifically, the courts may consider all the personal perks provided at the expense of the company such as cell phone, car payments, entertainment, meal, or travel expenses, country club dues, and other comparable expenses that primarily benefit the individual. These expenses may be still be permissible deductions for tax purposes but the court should consider the amount and nature of these expenses in a support case. In Commonwealth v. Gutzeit, the Defendant owned his own business and claimed entertaining, maintenance and repairs of automobiles, life insurance for himself, and even gas for his Wife’s car as business expenses (180 A.2d 324 at 327). The court acknowledged that while the total sum of these deductions should not necessarily be added back in at least a part of them should be as determined from all the circumstances of the specific case to arrive at a reasonable earning capacity.

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When and where to file for Child Support in Pennsylvania

Child support is a remedy afforded to the parent who has the majority of time with the children or who has equal time but makes less money. Child support may be filed either in the county where the child lives, the defendant lives or the defendant works. In Pennsylvania, child support is based on guidelines so no matter what county in Pennsylvania you choose to file, the amount should be the same and the money is all funneled through the PACSES which is located in Harrisburg. The difference may be procedure, time and how many steps it takes you to see the Judge. For example, in Bucks County, PA, you will attend a lower level conference and if not resolved it will be scheduled for a Judge within a few weeks. In Philadelphia and Montgomery Counties, however, you will first go to a conference, then to a Master’s Hearing and then to a Judge.

You should file for support as soon as you know that you will not be living with the other parent and about six weeks prior to the date you will separate. There are no filing fees for support in any of the counties and it is one of the few times you will not have to pay a filing fee. Most counties have pre-printed forms that you can fill out to file on your own or you can hire an attorney to file it for you. Domestic Relations is the office that handles support matters and you will want to contact that office to find out the hours and location to file in your county.

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Disabled? Unemployed? When to Modify your Support Order

Whether you are receiving or support, it’s important that if you become disabled, or end up on unemployment, even temporarily, that you file to modify your support. Just because you are out of work, or undergo surgery, does not mean that you can explain it all later to the Court. Nor does it mean that your support will not be due. You need to file to either lower or stop your support if you are paying during the period of time you are disabled or out of work. Otherwise, if you do nothing, the amount you were ordered to pay will continue to charge against you and you could find yourself in contempt if it is not paid. If you are the one receiving support and you become disabled, or suddenly lose your job and are on unemployment, you need to file in order to see if you can get an increase in support temporarily while you are out. If you are unable to file yourself, it may be a good idea to give someone you trust a Power of Attorney to file on your behalf.
Support is modifiable whenever there is a change in circumstances. It does not always have to be due to a disability or unemployment. Whenever there is a change income or any of the factors that play into a support order such as child care expenses, health insurance expenses, etc. you may need to go back to court have your support order recalculated. If you think you may have a change in circumstance that warrants a modification, always consult with an attorney.

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Child Support and where the money goes

Oftentimes people who have to pay child support do not understand why they have to pay the amount that they do. Sometimes they think that they can demand receipts for everything that their money is used to by for the child. In PA, the parent who has the majority of the time is the one who is entitled to receive child support. If parents have equal time, the parent who earns less is entitled to receive child support. There is no accounting required for expenditures except in the instance when the party is seeking additional money in unreimbursed medical expenses, or child care costs which are over and above the basic support obligation. While it may seem that several hundred dollars is more money than you would spend on the average child in a given month, the paying parent often fails to consider that the basic child support factors in basic needs including housing, electric, food, clothing that the primary parent needs to provide. When you consider the additional cost that a two bedroom apartment costs versus a one bedroom apartment, and the additional water or electric used, it becomes easier to understand and accept why the court orders the amount of support that they do and easier to accept that it is not a dollar for dollar tally of the expenses used for the child.

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Disestablishing Paternity

It is difficult to avoid the obligations that come with parenting a child. Paternity can be established in a number of ways including by acknowledgment, by genetic testing, or by estoppel. Once an acknowledgment of paternity is signed, it is very difficult for a father to then try to allege the child is not his. An acknowledgment acts as conclusive evidence that the person who signed the acknowledgment is in fact the father of any subject child(ren). A court order on paternity will follow if the genetic test results indicate 99% probability of paternity. Paternity by estoppel recognizes a man as the father based on his role in the child’s life rather than the biological connection.

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, in K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012), Husband, though he had supported the child, acted as a father figure and was married to Wife at the time of birth, submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated. The establishment of paternity imposes the policies of the Uniform Parentage Act including strict liability for child support. In Wallis v. Smith, 22 P.3d 682 (2001), Father tried to avoid his support obligation on the basis that Mother had committed contraceptive fraud. In other words, the parties had an agreement that Mother would be responsible for birth control and subsequently stopped taking the birth control without alerting Father. The courts refused to relieve Father of his support obligation despite the parties’ alleged agreement. No state recognizes contraceptive fraud or failure to accurately practice birth control as a defense to child support.

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Discovery in Support Cases

Discovery is the process of obtaining information from the opposing party in the course of a lawsuit. Discovery is governed by the Pennsylvania Rules of Civil Procedure (Pa. R.C.P.). Rule 1930.5 states that there shall be no discovery in a simple support, custody or Protection from Abuse proceeding unless authorized by court. In order for you to be allowed to send discovery in a support matter, you must get your case deemed complex by the court. An example of a potentially complex support case requiring discovery would be one where one, or both, of the parties are self-employed. Procedure in Bucks County calls for a hearing date on the issue of whether or not discovery should be permitted. If so, the substantive portion of the hearing will be postponed pending completion of discovery as granted.

Formal discovery methods must adhere to the Rules of Civil Procedure and the acceptable methods include interrogatories, depositions, production requests, subpoenas to produce things and/or documents, and/or requests for admission. Interrogatories and production request are the most frequent methods of discovery in family law cases. Interrogatories are a written set of questions for the other party to answer. A production request lists all the documents a party is seeking. Subpoenas are a good tool when it is necessary to get information directly from the source in the instance a party does not have it, will not cooperate in turning it over, or you suspect they may tamper with the documentation. Examples of relevant documentation to seek in a support may include personal and business tax returns, W-2s, 1099 Forms, pay stubs, income projections, profit and loss statements, balance sheets, business ledgers, summaries or appraisals of all assets/property/equipment owned by the business, and statements for all personal and business bank accounts and/or credit cards.

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Veterans Benefits and Support

Former military members may be eligible to receive a number of different veterans benefits from the Department of Veterans Affairs (VA). Possible benefits include disability compensation, pension benefits, life insurance, educational benefits and more. The former service member may also be entitled to additional benefits for dependents. Where the service member is also responsible for paying child support, certain benefits can be garnished to ensure the support obligation is met. The first step is to correctly categorize the benefit to determine if it is subject to garnishment. The second step is establishing a need on the part of the party seeking support and other dependents as well as a failure by the veteran to supply the need. Thirdly, the VA must be assured that there will not be an undue hardship on the veteran as a result of the garnishment.

Procedurally, the party seeking the garnishment must apply for an apportionment. The form asks for information on the total income, sources of income, and expenses for the veteran as well as the custodial parent. The VA will review the request for apportionment and determine if it is appropriate. In either event a formal decision will be rendered. The final decision can be appealed to the Board of Veterans’ Appeals. The state child support agency will need to be involved with apportionment requests. Copies of the current support order and records of any arrears owed and former payment history will need to be supplied to the VA to review as evidence when making its determination on whether garnishment is appropriate and a reasonable amount to be garnished.

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