Supplemental Security Income

Supplemental Security income (SSI) is cash assistance to individuals who are disabled or over 65 years old. SSI can be payable to disabled children as well. Living arrangements may affect the amount of SSI received. You should report changes in living arrangements to the Social Security office. Similarly, relationship status may affect the amount of the benefit received. For example, the amount may be decreased following marriage depending on the income of the new spouse. If marrying another individual who receives SSI, the benefit may be converted from an individual benefit to a couple’s benefit.

Any other income or windfalls may also affect the payment. The changes may be temporary in the event of a one-time payment or more permanent in the event of employment. Payments may increase every year to account for cost of living adjustments. SSI is not be considered income for purposes of a support calculation. This is because SSI is a federal means-tested benefit. It operates as a welfare benefit. It is not meant to replace lost earnings but instead to provide some income to disabled people who would otherwise be poverty-stricken. Even though SSI cannot be considered, if a party is otherwise capable of working, income from employment can still be considered for a support award.

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Changes to NJ Custody Relocation Laws

If you are seeking to move to a distance that makes your current custody schedule difficult or impossible to follow it classifies as a relocation. In the event of a move that does classify as a relocation the party looking to move should obtain the written consent of the other parent or court approval. Previously, New Jersey courts primarily focused on if there would be any harm to the child in allowing the move. In a recent decision (Bisbing v. Bisbing) the New Jersey courts have shifted their focus to considering if the move is in the child’s best interests. This standard puts the burden on the party looking to relocate to demonstrate how it benefits the child. It also allows for a better look at how the move affects both parents.

In the instant case, a mother has primary custody of the parties’ two daughters pursuant to their marital settlement agreement. Mother sought to relocate with the daughters to Utah and Father objected to the move. At the initial court proceeding, the court agreed that the move would not be to the children’s detriment. On appeal, the court held that a best interest analysis should be applied instead. This change in the standard for relocation will certainly have an impact on the number of successful relocation requests given it requires a more stringent analysis as to the effects on the children.

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SSD

Social Security Disability (SSD) benefits are payable to individuals who have a long-term disability that limits their ability to earn income. The disability payments are meant to replace the income the recipient would have received if they had not become disabled. Essentially, disability payments have been pre-paid by the recipient during their employment. Accordingly, the recipient must have a sufficient earnings history, or in other words have paid social security long enough, to be eligible for payments. Your benefit will remain the same whether you are single or married. The issue of social security disability benefits may arise in the context of a support action. Social security disability benefits are recognized as a source of income pursuant to Pennsylvania Rule of Civil Procedure 1910.16-2. Accordingly, a support order may require payment of a portion of the benefit received.

Benefits may also be payable to the children of the disabled party. Where child support is being calculated and the child(ren) at issue are receiving their own social security benefit, the amount of their benefit also must be accounted for in the support calculation. PA RCP 1910.16-2(b) goes into detail about the treatment of benefits received by the children in the context of support. The child’s benefit should be added to the net income of the parents for determining what the basic child support award should be based on the state guidelines. The amount of child support based on the support guidelines is then reduced by the amount of the child’s benefit. After the reduction, the appropriate support award would be calculated after considering each parent’s share of the support obligation based on their income, as well as other relevant factors such as health insurance costs and custody.

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Grounds for Termination of Parental Rights

Termination of parental rights means the natural parent of a child forever loses or forfeits any rights as a parent. This would include the loss of any standing for future custody actions. On the flip side, it also means they are not financially responsible for their prior child in terms of support. Termination of parental rights can generally only occur in conjunction with an adoption matter. Termination of parental rights can be voluntary or involuntary. A biological parent can consent to an adoption and voluntarily relinquish their rights. Alternatively, parental rights may be subject to involuntary termination. Pursuant to 23 Pa.C.S. § 2511, there are nine (9) grounds for involuntary termination of parental rights.

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well‑being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

(3) The parent is the presumptive but not the natural father of the child.

(4) The child is in the custody of an agency, having been found under such circumstances that the identity or whereabouts of the parent is unknown and cannot be ascertained by diligent search and the parent does not claim the child within three months after the child is found.

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

(6) In the case of a newborn child, the parent knows or has reason to know of the child’s birth, does not reside with the child, has not married the child’s other parent, has failed for a period of four months immediately preceding the filing of the petition to make reasonable efforts to maintain substantial and continuing contact with the child and has failed during the same four‑month period to provide substantial financial support for the child.

(7) The parent is the father of a child conceived as a result of a rape or incest.

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

(9) The parent has been convicted of one of the following in which the victim was a child of the parent: criminal homicide, aggravated assault, a comparable crime in a different jurisdiction, or any attempt/conspiracy to commit the above.

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Proving Cohabitation

Alimony is support paid to an ex-spouse following the divorce decree. The amount of alimony is largely based on the incomes of the parties but may also be affected by the distribution of the other assets, if any. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. Generally, the length of alimony is directly attributable to the length of the marriage such that the longer the marriage, the longer the term of alimony one may expect.

In Pennsylvania, alimony will terminate upon remarriage or cohabitation of the party receiving alimony with an unrelated partner. It may be difficult to prove there is in fact a cohabitation relationship as the party seeking to terminate alimony. Case law establishes that you need to show more than just some overnight visits. Starting points may include if both the party receiving alimony and their partner receive mail at the same address, if any utilities for the home are in their name, or if they have been added to the lease or mortgage. A private investigator may also be utilized to observe the comings and goings and report back as to whether the parties staying together is a regular occurrence as opposed to an occasional visit. This option can become very expensive since you will need to hire the investigator over a period of time to establish a pattern of conduct.

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Steps for Simple, Uncontested Divorce

The procedures outlined below are suitable for an amicable divorce where there are no ancillary issues such as equitable distribution, custody or support. First, a Complaint in Divorce must be filed with the court. This may be your local county court or another county courthouse within the Commonwealth provided you consent to their jurisdiction. The difference in filing fees is a reason why you may look into filing outside of your county. Second, the Complaint in Divorce needs to be served on the opposing party. This can be done informally by having the other party execute an Acceptance of Service. Other options include service via certified mail, return receipt requested, restricted delivery or personal service by a process server of the Sheriff’s office.

Third, you must establish grounds for the divorce. For a no-fault divorce this would be either mutual consent of the parties after ninety (90) days or one or more year(s) of separation. If pursuing mutual consent, both parties would need to sign an Affidavit of Consent as well as Waiver of Notice for the divorce. If doing a divorce on the basis of separation, one party would file an Affidavit of Separation with the court and then serve it on the other party with a counter-affidavit to make sure they don’t object to the date of separation. The final step is filing a Praecipe to Transmit for Divorce Decree. This motion details all the prior steps for a divorce have been properly completed and includes the actual form of decree for the court’s signature if the motion is satisfactory.

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Where Can You Adopt?

The Pennsylvania Adoption Act is fairly liberal in terms of where an adoption can take place. An adoption can take place in any county where the natural parents of the child occur. It may also take place in any county where the child to be adopted resides. Additionally, an action for adoption can be initiated in the county where the parties looking to adopt reside. Outside of any county where a party of an adoption matter may reside, an agency adoption can be brought in any county where that agency has an office. The final option as to where you may file is where the child to be adopted previously resided with leave of court. This means a court must make a determination as to whether filing in a county where the child used to live or was born is appropriate.

The third factor is most often seen in the context of family law matters. Often, parties will want to obtain medical information of the other party to present as evidence to the court. This may be in the context of a custody matter if a party is alleging the other party does not have the physical fitness or mental well-being to parent. It may also arise in a support matter where there is an assertion regarding an ability or inability to work because of a health issue. Essentially, a party must give written consent to their provider prior to the release of any of their medical information. Entities that must follow HIPAA include insurance companies and health care providers. In some circumstances it is possible to obtain records without the patient’s written consent by subpoena or court order.

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HIPAA

HIPAA is the acronym for the Health Insurance Portability and Accountability Act of 1996. This Act establishes guidelines on the dissemination of sensitive medical information. It is a federal statute applicable nationwide. There are three main provisions of the Act. First, it seeks to make it easier to maintain health care in terms of transfers between jobs or carriers. Second, it sets a standard for providers of health care and the plans they offer. Third, it addresses each individual’s right to privacy as it relates to their medical information.

The third factor is most often seen in the context of family law matters. Often, parties will want to obtain medical information of the other party to present as evidence to the court. This may be in the context of a custody matter if a party is alleging the other party does not have the physical fitness or mental well-being to parent. It may also arise in a support matter where there is an assertion regarding an ability or inability to work because of a health issue. Essentially, a party must give written consent to their provider prior to the release of any of their medical information. Entities that must follow HIPAA include insurance companies and health care providers. In some circumstances it is possible to obtain records without the patient’s written consent by subpoena or court order.

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How to Rollover Retirement Assets

Retirement assets are often one of the substantial assets in a marital estate. It is possible to do a tax-free rollover of retirement benefits as part of a divorce. First, you will need to know what kind of benefits are involved. Qualified benefits will require a Qualified Domestic Relations Order (QDRO) to achieve the tax-free rollover. Qualified plans include defined contribution plans such as 401K as well as defined benefit plans such as pensions. Federal retirement plans (e.g. CSRS, FERS, TSP) also require a court order to achieve the rollover however the appropriate order for federal plans is a Court Order Acceptable for Processing (COAP). Once the QDRO or COAP is drafted to dictate the percentage or fixed amount to be rolled over, it is signed by the parties and then the Judge prior to submission to the plan for execution.

Non-qualified plans, most notably IRAs, do not require a specific order to do a rollover. Often, just a copy of the settlement agreement or Order and copy of the Divorce Decree may be sufficient to complete a rollover. It is important to make sure the rollover is direct to ensure it is tax-free. If the funds are instead withdrawn with the intention to re-deposit into the other party’s account, there will be a 20% tax withholding on the withdrawal in addition to any early withdrawal penalties that may be applicable. It is also a good idea to make sure the rollover is done promptly after the divorce. As the party receiving funds via rollover, be careful as to how you elect to receive distributions once the funds are in your account. Similar, tax and any applicable early withdrawal penalties will apply to you once accessing the funds.

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Veterans Benefits in Divorce

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. Veterans benefits cannot be divided as an asset in a divorce case. This is due to the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Pennsylvania Divorce Code confirms this rule. Under 23 Pa. Section 3501(a), discussing the definitions for marital benefits, veterans benefits exempt from attachment, levy or seizure are defined as non-marital.

VA disability payments are non-marital as are any military disability retirement payments. When discussing which benefits should be classified as non-marital, the statute goes on to draw a distinction as it relates to benefits received in lieu of military retired pay. Specifically, veterans benefits may be considered marital to the extent that a service member has waived military retired pay to receive the veteran benefit. This is because military retired pay is subject to distribution as a marital asset so any benefit received in exchange for their retired pay should be treated the same way. Veterans should also be aware that disability payments can be considered as income for an alimony award.

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