Who Pays Child Support?

If you are going through a situation involving the custody of your children, you may be wondering who has to pay child support. Both you and the other parent have a financial obligation to support your children. The type of custody arrangement between you and the other parent, whether by agreement or Order of the Court, will determine who pays child support. If you have a 50/50 custody schedule, then the parent that makes more money will likely be the one paying, but at a discounted rate. If you have primary custody of the child/children, then the parent who has partial custody will be obligated to pay child support. However, if the parent that has partial custody has the child overnight for more than 40% of the time (6 overnights over the course of a 14 day schedule), then the parent will be entitled to a discount of the amount of child support they have to pay. When seeking child support from the other parent it is best to get a Court Order to ensure that the payments come in. An Order from the court can provide you some assurance that the money you are relying on to help care for your children won’t suddenly disappear one day.

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What is the Process of Filing for Protection from Abuse?

Do you find yourself in an abusive relationship? This situation can be very difficult and scary for the person suffering from the abuse. Abuse can come in several different forms. It can be verbal and threatening to the point where you are terrified of what will happen next. Verbal abuse can be very scary as threats and harassment can make you fearful of what comes next. In other situations, the abuse can be physical where you are being physically harmed by your partner. This is a very scary situation that many people can find themselves in. You might be scared that you cannot do anything to stop the abuse, or worried about what will happen if you try. You do not and should not remain in an abusive situation and you can protect yourself by filing for a protection from abuse (PFA) order with the court.

When you file for a PFA a Judge will normally grant a temporary order that orders the abuser to stay away from you until you both can appear in front of a Judge at a hearing. On the day of the hearing an agreement will try to be reached between the parties where there are agreed upon terms regarding the abuser having no contact. If no agreement is reached, a hearing will be conducted in front of the Judge where he will decide what the order will be going forward. A PFA order can be put in place for any duration up to 36 months. If you are in an abusive situation and seek protection you should file for a PFA so that you can start living your life without the fear that you have been experiencing.

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Grandparent Standing for Custody/Visitation

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Section 5325 of the Domestic Relations laws sets out the circumstances under which grandparents and great-grandparents may petition for partial custody/visitation. One of three conditions must be met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months AND don’t agree on whether the grandparent or great-grandparent should have custody/visitation; or (3) the child has lived with the grandparents or great-grandparents for at least 12 consecutive months provided a petition is filed within six months after the child is removed from the home.

Non-biological grandparents also have the right to seek grandparent visitation rights where they stand in loco parentis to one of the parents of the child and it’s in the child’s best interest. In loco parentis embodies an assumption of parental status as well as an actual discharge of parental duties giving rise to a relationship which is the same as between parent and child. It is also possible for grandparents to request primary custody under Section 5324 of the Domestic Relations laws if they stand in loco parentis to the child. Again, in loco parentis means more than just taking on a frequent caretaker position. Under Section 5324, a grandparent can also file where they are unable to establish in loco parentis but can establish an existing relationship with the child and that the child is at risk due to parental abuse, neglect, or drug/alcohol abuse.

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Grandparent Custody Rights

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Sections 5324 and 5325 of the Domestic Relations statute sets out the circumstances under which grandparents and great-grandparents may petition for custody/visitation. Section 5324 deals with partial custody or visitation and requires that at least one of three conditions be met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months and do not agree on partial custody/visitation to a grandparent or great-grandparent; or (3) the child has lived with the grandparents or great-grandparents for at least 12 consecutive months provided a petition is filed within six months after the child is removed from the home.

Section 5325 deals with standing to request primary physical custody as well as legal custody. Grandparents must establish the relationship began with the consent of the parents, they are willing to assume responsibility for the child and the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity. After establishing standing, the best interests analysis that is conducted in all custody cases still applies and the court must weigh all relevant factors. Section 5328(c), concerning custody awards to grandparents and great-grandparents, requires the court to specifically consider amount of personal contact between the child and the grandparent prior to filing and whether an award of custody to a grandparent or great-grandparent would interfere with any parent-child relationship.

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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 contempt. 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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Disclaimers vs Renunciations

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Disclaimers and renunciations are forms that can impact the administration of an estate. As is true with all legal paperwork, the best policy is to consult with an attorney before signing. If you elect not to consult with an attorney, at least be aware of the purpose of each form. A renunciation is used where an individual who has been named as an executor declines to serve in that capacity. You may name the individual who should serve in your place unless a contingent executor as already been named. In the case of an individual passing without a will, the next of kin would be first in line to serve as administrator of the estate. This individual can also sign a renunciation to waive their right to serve and allow someone else to serve. If there are issues with the person who stands to serve and a refusal to voluntary renounce their position, any other individuals with an interest in the estate can still petition the court to address their concerns.

A disclaimer is used to waive your right to receive an inheritance. Being named as a beneficiary or being an heir at law does not mean that you have to accept what is designated to go to you. It is possible to decline to receive your inheritance. The result of a disclaimer is that you are treated as if you predeceased the decedent. A will or the laws of intestacy would dictate how your share would be distributed among other beneficiaries. A valid disclaimer must be in writing. It must adequately identify the decedent and the asset or amount being disclaimed. It is possible to do a full disclaimer or a partial disclaimer where you only refuse certain assets or a certain amount. The disclaimer has to be served on the person handling the estate, such as the executor or administrator, and/or filed with the court. A disclaimer is irrevocable so be sure of your decision prior to executing the document.

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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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Avoiding Probate

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Probate is the process wherein a decedent’s will is presented to the appropriate county office and the named executor is formally sworn in to handle their estate. Probate can also occur if a decedent passes without a will in which case their next of kin can apply to serve as the administrator of their estate. There are a number of steps to take and potential costs involved to complete administration of an estate once formally probated. Depending on the nature of assets and debts of the decedent, probate can sometimes be avoided. It is key to consult with an experienced estate attorney to see if this is possible.

A good estate plan can also eliminate the need for probate. An individual can make plans during their lifetime that may eliminate the need for any probate after their death. For example, they can funnel their assets into non-probate assets which include assets that have a beneficiary designation or payable on death designation. They may also consider titling assets with another individual as joint tenants with rights of survivorship. A trust may be a good fit such that assets are held in trust and not in the name of the individual, with instructions on how the trust should operate following the death of the person creating and funding the trust. Identifying a good estate plan is also very case specific and should be discussed with an experienced attorney as well as a financial planner and/or tax advisor.

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Divorce Forms

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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.

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