Birth Certificates

Additional copies of a birth certificate may be ordered from the Department of Vital Records. An application is required along with a fee. Fees may be waived for members of the armed forces Parties that may request a birth certificate include attorney or legal representative (documentation may be required), spouse, parent or step-parent (must submit marriage record supporting the relationship), grandparent or great-grandparent (specify maternal or paternal), and power of attorney for person named on birth certificate or immediate family member listed above. The following individuals may also submit an application if over age 18: person named on the birth certificate, siblings (including half siblings), children or step-children, grandchildren and great-grandchildren.

Simple changes to a birth certificate can be made by agreement of the parents through the Department of Vital Records as well. Desired corrections can be stated on the back of the birth certificate and must be signed by both parties in the presence of a notary. A change in civil status form is required for a name change on a birth certificate due to the subsequent marriage of the biological parents. An acknowledgment of paternity form must be filed to have the biological father added to a birth certificate where no one was previously listed. The Pennsylvania Department of Vital Records can be reached at (844)228-3516 or at the address below:

Division of Vital Records Attn: Corrections Unit 101 S. Mercer Street, Room 401 PO Box 1528 New Castle, PA 16101

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Improper Custody Relocation

23 PA C.S. 5337 is Pennsylvania’s custody relocation statute which requires any party seeking to move with minor children to get court approval or the other parent’s permission prior to the relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” A move that is only a few miles away would not count as a relocation. Procedurally, the party intending to relocate must give at least 60 days’ notice, or notice as soon as possible, of the intended move. The party would include a counter-affidavit with the notice which allows the non-moving party to designate their position. If the move is contested a hearing on whether or not the relocation should be granted should be held prior to the move. In addition to addressing the 16 factors as to what’s in the child’s best interests required in any custody case, the moving party must also address 10 relocation factors. The moving party has the burden of proof to show relocation will serve the best interests of the child(ren) and that there is no improper motive in seeking to move.

Failure to abide by the procedures listed in the statute has consequences. Section 5337(j) discusses the ramifications for failure to provide adequate notice and follow the appropriate channels. The court may consider the lack of notice as a factor when making a final determination on the relocation and whether custody rights should be modified. The court can also view the lack of notice as a basis for ordering the return of the child to the jurisdiction. The court may order the party who improperly relocated to pay attorney’s fees and expenses on behalf of the party who must initiate litigation to indicate their opposition to the relocation. The court can also treat it as a matter of contempt and impose sanctions against the moving party. Finally, 5337(l) explains the court is not permitted to confer any presumption in favor of the relocation where it occurs before the court holds a final hearing.

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Earning Capacity

In a support matter, the incomes of the parties will be used to calculate an appropriate award based on the support guidelines applicable throughout the Commonwealth. At the initial appearance for a support matter, both parties are asked to bring in proof of their income in the form of W-2s, tax returns, pay stubs, or other documentation of income received. If a party is unemployed or underemployed, the rules specify that an earning capacity may be imputed. Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4) explains the first step is a finding that a party willfully failed to obtain or maintain appropriate employment. Involuntary reductions in income (e.g. lay-offs or unemployment due to illness or disability) generally do not trigger earning capacity arguments.

If the reduction in income is seen as voluntary or willful (e.g. took a lower paying job or cut hours) then the court may impute an income consistent with that party’s earning capacity. Factors to consider when trying to identify an appropriate earning capacity include age, level of education, special training/skill set, work experience and prior earnings history. A Judge must explain the rationale behind any earning capacity that is assessed against a party. The earning capacity provision exists so that parties who have a support obligation cannot escape their obligation by purposely leaving their jobs or otherwise lowering their income. Under- or un-employed parties seeking to avoid imputation of an earning capacity should be prepared to show they have taken good faith efforts to secure comparable employment and that any reduction in income was for a valid purpose.

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Wills for Heroes

Wills for Heroes is a program in conjunction with the Pennsylvania Bar Association that provides free wills, living wills, and powers of attorney to first responders and their families. Appointments are required along with proof of military or public service. There is also a limit on the size of the estate to utilize this service. Appointments can be made online at the Pennsylvania Bar Association website. Each appointment slot is one hour. Each participant will have their final, notarized documents to take home with them by the conclusion of their appointment. If a spouse or significant other is also participating, their appointment will be immediately following that of the first responder. The program is made possible through the time of volunteers including attorneys, reviewers and witnesses.

Lehigh County has a “Wills for Heroes” event coming up on Saturday, August 18 2018. The event is being held at the Barrister Club. Their address is 1114 W Walnut Street, Allentown, PA 18102. Appointments begin at 11 a.m. For more information and events at other locations throughout the state, you can visit www.pabar.org/wfh/. Other upcoming dates include September 8, 2018 for York County and September 12, 2018 for Philadelphia. Our firm is also able to assist with estate planning documents at a reasonable cost including trusts, wills, living wills and powers of attorney. Please contact our office if you would like additional information or to set up an appointment.

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Jurisdiction

Jurisdiction grants a court the authority to make legal decisions and judgments. Jurisdiction is most frequently obtained by residency. Residency is required to file a divorce in Pennsylvania. Under Pennsylvania law, specifically 23 Pa. C.S. 3104(b), one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes their meals, receives mail, and stores personal possession. Members of the military are considered to be residents of their home state even if they are stationed elsewhere at the time a divorce is commenced. The home state would be the state where they intend to return to and reside in following any term of active duty.

Jurisdiction for custody matters in Pennsylvania also has a six (6) month residency requirement. Per the Uniform Child Custody Jurisdiction and Enforcement Act, jurisdiction is proper in the home county of the child which is where the child has resided for at least six months prior to commencement of the action. Temporary absences from the county do not negate residency for the purposes of jurisdiction. In emergency situations, the six (6) month residency requirement may be set aside. Temporary emergency jurisdiction may be exercised if the child is in the jurisdiction at the time and it is necessary to make an immediate determination to ensure the child’s safety. For example, an emergency order may be entered if a child has been abandoned, or is subject to mistreatment or abuse. An emergency order would only be valid until a court with jurisdiction as the home state of the child makes a determination.

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Discovery in Divorce

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.). Discovery is allowed in alimony and equitable distribution without leave of court. The information requested must be relevant to the case pursuant to Pa. R.C.P. 4003.1. In divorce, the court gives much leeway as to what is relevant since the factors for equitable distribution allow for broadness.

Formal discovery methods must adhere to the Rules of Civil Procedure and the acceptable methods include interrogatories, depositions, production requests, subpoenas to produce documents, and request for admission. Interrogatories and production request are the most frequent methods of discovery in divorce 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 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 discovery, lawyers will sometimes agree to exchange discovery informally. This generally involves the lawyers deciding what information is relevant and then gathering that information and sending it to the other side in exchange for receiving documentation that they need from the other side that is also relevant.

Rule 1930.5 states that there shall be no discovery in a simple support, custody or Protection from Abuse proceeding unless authorized by court.

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Special Needs Children and Divorce in PA

Divorce is a complex scenario that confronts many families across the globe every year. The situation becomes significantly more complicated when there is a special needs child involved. Issues of child custody, visitation, and support, and property division all become a little more complicated when the scenario involves a special needs child. There are a handful of things that need to be taken into consideration if you find yourself in this particular situation to ensure you and your child are taken care of.

Some of the first questions to consider are: What are your child’s medical and functional needs? How much will it cost to meet these needs and how are they to be managed? Child support charts do not address the additional cost that one may incur when caring for a child that requires specialty medical care, services, equipment, additional vitamins, enhanced nutrition, etc. One may consider consulting a life care specialist to help address these questions from a professional standpoint.

 

It is not uncommon for the parents of a child with special needs to disagree upon the amount of care or services necessary to meet the needs of the individual child. In this case, it is important that a third party professional is consulted to guide decision-making and offer solutions.

 

It is the objective of the court to determine what is in the best interest of the child. Common factors taken into consideration include:

 

  • With whom will the child be living?

 

  • To what capacity does the parent have the ability to understand and meet the needs of the child?

 

  • How much contact will the non-custodial parent be allowed?

 

  • How stable is the household in which the child will reside?

Each of these considerations become even more prominent when the court is determining the custodial parent.

Typically in the case of divorce, child support ends at the age of majority or when a child graduates from college. However, when dealing with a child with special needs, there is the possibility of lifelong caregiving. It is the parents’ responsibility to remain aware of the child’s eligibility for government or private agency benefits, employment, recreational and socialization opportunities, independent living, and custodial care as they transition into adulthood.  It will be necessary that the divorcing parents work together to keep their child actively engaged so that they may work toward becoming a self-sufficient member of society.

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Spousal Elective Share

It is possible for a spouse intentionally left out of the other spouse’s will to still receive a share of the estate in the event of death. Pennsylvania law provides for an “elective share” pursuant to 20 Pa. C.S. 2203(a). This law provides that if a person is still married at the time of their death with no divorce pending, the surviving spouse can elect to receive 1/3 of that person’s estate. There are items that are excluded from the estate in instances where an elective share will be applied. 2203(b) states the following exceptions: (1) any conveyance made with the express consent or joinder of the surviving spouse; (2) the proceeds of insurance, including accidental death benefits, on the life of the decedent; (3) interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for benefit of its employees and their beneficiaries; (4) property passing by the decedent’s exercise or non-exercise of any power of appointment given by someone other than the decedent.

To simplify, a surviving spouse cannot receive any portion of something that they already agreed to give away by way of previously consenting to it. As it relates to subsections (2), (3) and (4), accounts that have a beneficiary designation will pass to the named beneficiary. Additionally, the surviving spouse waives the right to seek other items they may have been entitled to if they choose to exercise the elective share. The surviving spouse must reduce to writing their intent to exercise the elective share and timely file with the court. Either spouse may waive their right to exercise the elective share before or during the marriage or even after death of their spouse. This waiver could be included in a pre-nuptial or post-nuptial agreement, for example. It is wise to consult with an attorney to see if choosing the elective share is the best outcome if you are left out of a spouse’s will.

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Custody Relocation

Parties should be aware of court requirements prior to moving with minor children. A local move may not require any additional steps to be taken other than just providing the new address to the other parent. If the move is of a significant distance and could impact the existing custody schedule additional steps must be taken prior to moving. Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” Procedurally, the party intending to relocate should give at least 60 days’ notice or notice as soon as possible after they have knowledge of the relocation. A full hearing on the relocation should be held prior to the move if the relocation is contested. In addition to addressing the 16 factors to consider in any custody award, the moving party must also address the 10 relocation factors. The moving party has the burden of proof to show relocation will serve the best interests of the child(ren) and that there is no improper motive in seeking to move.

Failure to abide by the procedures listed in the statute has consequences. Specifically, Section 5337(j) discusses the ramifications for failure to provide adequate notice and follow the appropriate channels. The court may consider the lack of notice as a factor when making a final determination on the relocation and whether custody rights should be modified. The court can also view the lack of notice as a basis for ordering the return of the child to the jurisdiction. The court may order the party who improperly relocated to pay attorneys’ fees and expenses on behalf of the party who must initiate litigation to indicate their opposition to the relocation. The court can also treat it as a matter of contempt and impose sanctions against the moving party. Finally, 5337(l) explains the court is not permitted to confer any presumption in favor of the relocation where it occurs before the court holds a final hearing.

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Saving Your Marriage: Signs Your Marriage is Struggling and What You Can Do to Save It

Divorce affects one in two marriages in the United States every year, and as time passes that percentage continues to increase. If you are involved in a marriage, it is important that you remain cognizant of the common signs that ultimately lead to divorce. If these trends are present in your relationship, there are some methods you may employ in order to save your marriage.


If your marriage is becoming an overwhelmingly negative experience there is a good chance your marriage is going to be coming to an end. Carrie Krawiec, a marriage counselor and therapist out of Michigan, suggests that for every single negative moment there should be five positive moments. This 5:1 ratio seems to be the balance required to maintain good chemistry between partners.


When unremorseful infidelity occurs there is also a very high likelihood the marriage is going to end. To the surprise of many, cheating can be overcome. In order to do so, it must be met with genuine understanding, love, compassion, and an unrelenting effort from both sides to fix that which was broken.


The decline of physical interaction between partners is a sign that the marriage is on the decline. This point goes far beyond sexual interactions. The simple things that have huge implications include hand-holding, hugs, kisses, and general physical contact. Body language is a very primal and intimate way to communicate sensually with your partner, and when that ends the marriage is likely to end as well.


Enough of the negative. Let’s look at some signs that suggest your marriage can be saved.


If you and your partner continue to go on dates there is a high likelihood that your marriage is salvageable. There is no doubt that our day to day lives have become filled with more and more chaos and to-do’s than those in the past. However, if you and your partner still make time to spend a Friday evening with one another for quality “couple time” there is a chance that the marriage can be saved.


If one partner fails to remain faithful, it doesn’t mean that the marriage is over. Despite the harsh negative emotions that accompany cheating, if both parties truly want the marriage to continue there are ways to make it happen. Understanding that cheating is usually the symptom of a larger problem within the relationship gives both partners the foundation upon which they can build.


Finally, if you are still comfortable enough to share your thoughts and emotions with your partner, the union is likely still strong enough to save. If both parties are able to offer a sanctuary within which they can truly be themselves, there are positive implications on the strength of the relationship.

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