Hague Convention Implications

Enforcement of an international custody order is addressed by the Hague Convention on the Civil Aspects of International Child Abduction. Signatories to the Hague Convention are required to immediately return children if taken or retained in violation of a custody order. All countries who are parties to the Hague Convention must establish a “Central Authority.” This office is responsible for dealing with any Hague Convention violations. For children removed from the United States, a petition for return should be filed through the U.S. State Department, Office of Children’s Issues. From there, the petition is transmitted to the Central Authority for the other country involved and ultimately adjudicated there. It is important to begin the process as soon as a violation occurs for the best likelihood of having the child returned.

If you are contemplating a custody order with a party who lives out of the country or has significant connections to another country you may want to verify if that county is a signatory. This will be invaluable in the event there is an issue with the custody order while your child is abroad. You may want to consider if the country is a signatory even for vacation travel if you do not trust the other parent. A good custody order or agreement should dictate that written consent is required for travel outside of the United States so that you can have a say on where the child goes.

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Child Support Awareness Month

August is National Child Support Awareness Month. August has been dedicated to child support awareness since 1995 when President Clinton began it as part of his welfare reform agenda. The purpose of raising awareness is to improve the collection of child support payments. The preferred method of collection is wage garnishment. There is also information on sanctions for failure to pay support which may include suspension of driver’s licenses and passports for parents with child support arrears. All 50 states participate in child support awareness month.

Child support in Pennsylvania is based on statewide guidelines established by the Pennsylvania Supreme Court. The guidelines are intended to ensure that similarly situated parties are treated similarly and are based on the combined net monthly income of both parties as well as the number of children involved. Pennsylvania does use wage garnishment as a means of securing consistent payment. The family court has the authority to issue a bench warrant to have a party who is not making support payments taken into custody. Additionally, the court can order additional incarceration at a subsequent support hearing as a means of reiterating the importance of regular support payments and demonstrating the severity of the punishment available for failure to comply. The court can also seize any lump sum payments due to the payor including unemployment compensation, workers’ compensation, insurance settlements, Social Security retirement or disability benefits, and other public or private retirement funds.

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Changing School Districts?

Custody refers to both physical custody, which is the schedule parties follow, as well as legal custody, which is who makes important decisions for the child(ren). Often times parties will share legal custody meaning they need to communicate, and ideally agree, on major decisions impacting healthcare, religion and education. Which school district a child goes to is an example of an education decision that should be discussed in the context of shared legal custody. If the parties ultimately cannot agree on a school district, the court could intervene to make the final determination.

Moving to a different school district may also arise in the context of a custody relocation. 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 non-relocating party to exercise custodial rights.” Prior to the relocation, the party seeking to move must give notice via certified mail to the other parent and said notice should include the proposed new school district.

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Lump Sum Alimony

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. As previously alluded to, an alimony provision within an agreement between the parties may not be modified in the absence of a specific provision allowing such a modification within the agreement. Generally, the length of alimony is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate.

The court can only Order alimony in the traditional vein of a monthly support award. This monthly support award is tax deductible for the party paying alimony. It is also taxable income for the party receiving it. Parties who are seeking to negotiate a settlement agreement can weigh the pros and cons on a lump sum alimony award as opposed to a month-to-month obligation. A potential con is a change of circumstance down the road where the support may have increased, decreased or been terminated altogether. A benefit would be getting it over with right away as well as the discount for present cash value. The payor must have the resources to afford a lump sum payment as well whether that been separate assets or through sacrificing some of their portion of the marital estate. You should consult with your attorney and accountant on whether a lump sum alimony award or a traditional alimony award would work best for you.

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Limits on Grandparent Rights

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; 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. However, in a 2016 decision, D.P. and B.P. v. G.J.P. and A.P., No. 25 WAP 2015, the Supreme Court of Pennsylvania for the Western District, held that Section 5325(2) intruded on the constitutional rights of the parents.

In the instance case the parents to three children had been married and subsequently separated, but did not institute divorce proceedings. The grandparents filed for partial custody under Section 5325, where the parents of the child have been separated for at least six months, after the parents mutually agreed to end contact with the grandparents. The court ultimately ruled that just because the parents were separated did not mean they could not still make sound decisions regarding their children. Parents have a fundamental interest in rearing their children as they see fit. Any law that seeks to impede on that natural right must pass the test of strict scrutiny, meaning the it must be “narrowly tailored to further a compelling government interest.” The court held that Section 5325(2) did not pass the strict scrutiny standard and hence the grandparents were not able to ask for custody. There has not yet been a change to the statute in response to this decision.

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Basic Requirements for a QDRO

A qualified domestic relations order or QDRO for short, is a document that is needed to split certain retirement benefits in the context of a divorce. Specifically, all benefits governed under ERISA (Employee Retirement Income Security Act of 1974) require a QDRO for division. ERISA plans may include pensions, 401Ks, profit-sharing plans, and stock ownership plans. A few examples of plans not governed by ERISA are local state or municipal plans, IRAs, or military benefits. There are certain base requirements for all QDROs. One, you must identify the name and address of both the participant spouse and the alternate payee, or party now standing to receive a portion of the benefits.

Two, you must specify exactly how much the alternate payee is to receive. This can be done a few different ways including as a fixed dollar amount or a percentage of the marital portion of the plan. The marital portion will be determined by looking at the years married in comparison to the total number of years as an employee earning benefits. Third, you need to explain when or how the benefits will be distributed. For many retirement benefits, the alternate payee cannot begin to collect until the participant spouse retires. Finally, the plan must be clearly identified. Certain plans may have specific language they want used or a particular template to file. It is wise to enlist the services of a company that routinely drafts QDROs to ensure the language is correct and all requirements are met.

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Dealing with Pre-Marital Assets

The Divorce Code defines marital property as that acquired from the date of marriage through the date of separation. It may also include the increase in value of property earned prior to the marriage to the extent the increase occurs during the marriage. A popular example of this may be a retirement plan or savings account. With assets or property earned prior to the marriage, it is important to ascertain the value of that property as of the date of marriage to assign that portion to the party who owns it.

The court may determine that an asset that is technically outside the definition of marital property is still up for distribution. This is a possibility for long term marriages such that the longer you are married, the less likely you are able to successfully keep certain assets off the table as being pre-marital. For example, Bucks County has applied a vanishing credit for pre-marital assets. The separate nature of a pre-marital asset is reduced by 5% a year such that there is no longer a credit after 20 years and the entire asset is considered marital.

A prime example of a situation where this rule would be applicable is the purchase of a marital home. Say Spouse A contributed $40,000 of their pre-marital money to the purchase of the house. If the parties separated after 5 years, Spouse A can still claim 75% of the down payment. However, if the parties separate after 20 years, there is no credit back to Spouse A for that initial investment of pre-marital funds.

The rules on credit for individual or pre-marital property can vary county to county since it’s not a statute, but more or less a policy used by the respective Masters when looking at the marital estate in a divorce matter. It is a good idea to be careful about commingling any separate or non-marital property with marital property.

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Informal Probate Administration

Informal administration is where the bulk of the process is by agreement of the interested parties. The notice requirements are still the same. After the short certificate, the executor or administrator needs to notify all possible beneficiaries as well as all possible debtors by publishing notice in the local law reporter and a local newspaper of general circulation. The executor or administrator should notify social security, employer(s), banks, insurance companies, retirement plans, etc. regarding the death of the decedent. The tax returns for the decedent and the estate still need to be completed with applicable taxes paid.

The actual distribution of the estate is by agreement of the parties. All parties should sign a final receipt and release or family settlement agreement. In this instance, it is not necessary to file a formal inventory and accounting with the court. The benefit is there are fewer filing fees and legal fees since less paperwork is filed with the court. Also, there may be more risk of liability on the executor or administrator, specifically if distribution of the estate is occurring prior to the one year mark from notice. It is a good idea to still wait the one year and to also still have an inventory and accounting prepared and presented to the beneficiaries.

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Formal Probate Administration

Formal administration involves handling the entire process through the courts. After the short certificate, the executor or administrator needs to notify all possible beneficiaries. They will also need to notify all possible debtors by publishing notice in the local law reporter as well as a local newspaper of general circulation. The executor or administrator should also notify social security, employer(s), banks, insurance companies, retirement plans, etc. regarding the death of the decedent.

Within three months of the date of death, the executor or administrator should pay estimated taxes on the estate to get a discount. Taxes for the estate will depend on the size of the estate. It is best to underestimate and potentially have to supplement later on than to overpay and risk not being able to get that money back from the government. A federal estate identification number should be obtained. The executor or administrator needs to make sure the final individual tax return for the decedent is prepared and filed in addition to the inheritance tax return. An inventory of the estate should be filed with the court along with a detailed accounting of all expenses of the estate and a proposed distribution of the remainder of the estate to close it out. Distributions should generally not be made until approx. a year after notice to allow creditors to make any valid claims against the estate prior to disbursement.

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Start of Probate Process without a Will

If a loved one has passed away without a will, the laws of intestacy will govern how their estate is handled. The closest kin can apply to the Register of Wills to be designated as the administrator of the estate. They will also be granted a short certificate has proof of their authority to handle the estate.

The administrator would then have the responsibility for identifying all the assets and debts as well as beneficiaries and their contact information and maintaining the estate until final distribution. If the decedent was married and does not have any children or surviving parents, the entire estate goes to their surviving spouse. If there were parents, the first $30,000 goes to the surviving spouse as well as half of the remainder of the estate.

If there are children of the marriage, the first $30,000 goes to the surviving spouse as well as half of the remainder of the estate also. If there are children of the decedent only, the surviving spouse gets half of the estate. The remaining half of the estate, or in the event the decedent is not married, the entire estate, shall pass in the following order: (1) to the decedent’s children; (2) to the decedent’s parents; (3) to the decedent’s siblings or their children; (4) to the decedent’s grandparents; (5) to the decedent’s aunts and uncles and their children and grandchildren. If there are multiple persons in a category, they will each receive equal shares such that a decedent with three children would have the estate separated into thirds.

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