Updates to Rules of Civil Procedure

Several updates are being made to the rules as it relates to family law matters. Rule 1915.11, which addresses the appointment of an attorney for a child for a custody matter, now permits the court to apportion the costs for an attorney appointed for a child as the court deems appropriate.

Rule 1915.15 will be revised to ensure parties’ names and addresses are included in a petition to modify a custody order. Finally, Rule 1920.33 will feature changes to the format and requirements for inventories and pretrial statements for equitable distribution matters.

Other proposals for change include an update to the support guidelines and self-support reserve which has not been revised since 2013. The current self-support reserve is $931 reflecting the 2012 poverty level for one person. There is a proposal to Rule 1915.3-2, concerning criminal record or abuse history, to include a space to indicate any involvement with a child protective services agency or active juvenile cases. Lastly, the criminal record history would add columns for contempt of an Order under the Protection from Abuse Act, adjudication of dependency or delinquency and history of sexual violence or intimidation under the Protection of Victims of Sexual Violence and Intimidation Act.

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How Do I Enforce a Custody Agreement in a Divorce Settlement?

When we work with you on your divorce, your divorce settlement agreement will contain all the important issues facing you and your spouse including who has what type of custody. If your relationship breaks down and one party refuses to recognize the other parent’s custody rights, the aggrieved parent can try to have the agreement enforced in court.

A properly executed, final divorce agreement is binding on the parties. It’s normally incorporated into the final divorce decree so that it will be as enforceable as any other court order. After your divorce the family courts retain the ability to enforce that judgment as long as necessary.

When you have problems it is important to know that there is a formal procedure to follow to have a custody arrangement enforced immediately. Yes, you can call the police, but do you really want your children to see that circus? To most effectively enforce the agreement we need to get in front of a judge if your spouse is being uncooperative.

An enforcement hearing is normally a much more simple legal proceeding compared to the entire divorce case with all the many issues it involves. At issue will be whether the agreement is valid and enforceable and if so whether it was violated or not. If so, the court needs create an order to enforce the agreement.

A motion to enforce the agreement would be filed with the family court. It explains the situation and discusses what terms of the agreement or prior court order was not complied with. After it’s filed the court will set a hearing date for the motion. If there are disputed issues of material fact a hearing will be scheduled. At the hearing both sides can present evidence to support their side of the story. The judge considers the evidence and legal arguments and issues a decision.

If the former spouses have a difficult relationship child custody issues and all the emotions that come with them can turn a bad situation much worse. Like all other divorce issues it’s best to try to negotiate a resolution to disagreements over custody but ultimately an aggrieved parent being denied his or her custody rights can try to bring the issue to a close with a court order.

If you have questions about child custody or feel your rights to the custody of your child have been violated, contact our office so we can talk about your situation, how the law may apply and what can be done to protect your interests and those of your child.

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Two Year Separation Divorce

To move forward with a no-fault divorce in Pennsylvania, the parties need only allege an “irretrievable breakdown of the marriage” and either consent to the divorce after a 90-day period or establish 2-year separation. A no-fault divorce can also be obtained if one of the spouses is institutionalized for a period of 18 months provided they will likely still be institutionalized 18 months following the commencement of the divorce. No-fault divorce became available in Pennsylvania in 1980 when the Divorce Code was revised. Originally, a separation period of three years was required but that has since been reduced to the two year separation period currently required. Recently, there was a legislative push to further reduce the separation period to only one year.

Last November the House voted for the passage of Bill 380 which proposes amending Section 3301(d) of the Divorce Code to allow divorce on the basis of separation for a one year period as opposed to the current law which requires a two year separation period. At this point, Pennsylvania has one of the longer waiting periods for divorce on the basis of separation. New York, Ohio, and Maryland require only one year of separation. New Jersey and Delaware only require six (6) months of separation. The Pennsylvania Bar Association (PBA) played a significant role in pushing for the passage of the bill. According to the PBA, there has actually been a decrease in divorce since many neighboring states have allowed divorce after only a minimum period of separation. Additionally, a shorter separation period will allow the parties to move on with their lives quicker with less emotional and financial strain as well as promote the best interests of minor children in decreasing the period of uncertainty. Unfortunately, the bill died in the Senate this summer such that a two-year separation period stands for Pennsylvania.

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Third Party Custody Rights

Parties other than parents and grandparents may be able to file for custody. Section 5324 of the Pennsylvania Domestic Relations laws discusses standing for any form of custody. A person who stands in loco parentis may be able to obtain custody. In loco parentis status has been interpreted to mean 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. You must be able to establish more than just a frequent care-taker role. New Jersey allows other parties to file for custody if they have become a “psychological” or de facto parent. This person must have established a relationship with the child with consent of one of the parents, be living with the child, have taken on all responsibility for the child, and have developed a meaningful relationship.

If a party has established they are a “parent” under the applicable statute, any custody matter then proceeds as usual with an analysis of the best interests of the child. If a party has not met the requirements to be designated as a “parent,” they may still be able to request custody in NJ. The party must prove there is gross misconduct, neglect or exceptional circumstances affecting the welfare of the child. If that is proven, the then court shall consider if awarding custody to the third party would promote the best interests of the child. The initial inquiry is a tough to prove. This is due to a presumption that the parents should have custody and the state’s position in protecting the constitutional rights of parents as it relates to autonomy over their own children.

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Uncontested Divorce Hearing

Certain counties in New Jersey still require an appearance in court to finalize the divorce even if the divorce is uncontested or issues ancillary to the divorce have already been resolved by agreement. The parties should be prepared to testify as to the their residence in the State of New Jersey, date of marriage and grounds for divorce. For example, the facts establishing the divorce action be it irreconcilable differences, separation, etc. The parties should also state if there are any children between the parties and if so, their names and date of birth.

If there is an agreement that has been reached regarding ancillary issues, the agreement should also be introduced during the hearing. Each party should acknowledge their signature on the agreement, and their understanding of all the terms. Key terms should be reiterated including custody provisions, child support, and alimony, if applicable. The parties should indicate they are waiving their right to trial in favor of having the divorce granted on the basis of their agreement. Finally, if Wife intends to retake her maiden name, that should be requested at the hearing.

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Your First Vacation as a Single Parent

After vacationing for some time as a family, it can be hard to adjust to your first trip as a solo parent. Even if you are happy to be free from your spouse, doing everything yourself and not having another adult around can be hard. Your children may be asking why mommy or daddy did not join you all on the trip and the guilt of your failed marriage may be weighing on you for their sake.

Yes, this can all happen on your first vacation as a single parent. As we process your divorce many adjustments to your new life will need to be made. When bringing the children on vacation for the first time you can employ these strategies to help you through:

Travel with Friends – having other adults around can really help you through your first trip. You will have adult companionship and also have another set of hands to help with your children. If you want to take some alone time you also have an adult who can step in and watch your kids for a few hours. Finding the right adults to travel with now can be a bit difficult – it may be awkward to travel with family and friends who you have traveled with before when you were a couple, so finding the right people to help you through this time may be tricky. You could ask a friend who is divorced with children to come along with you as a group .

Make it all about your kids: When you have younger children most vacations are all about them – they need and want your attention anyway to explore and play. Focusing on your children having fun is a great diversion. Planning an adventure around their interests or even just making sure each day has activities focused around them can pass the time and bring you back to the most important aspect of your life – your kids.

Take a few minutes for yourself: If you have a bit of extra budget and some babysitting support, take a trip to the hotel spa. Other options include a long walk on the beach or reading a book undisturbed poolside. Whatever you like to do take a few minutes for yourself – after all, this is your vacation as well!

Most importantly, remember it is all part of the adjustment. The first trip may be lonely or an amazing experience for you. You may love the new pack formed with just you and your children or you may miss your spouse terribly. However the trip evolves for you remember it is all a time of transition and part of stepping into your new life as a single parent.

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Pensions and Retirement in Divorce

Pensions, as well as other retirement plans, are often one of the assets up for division in a divorce. The court will equitably divide the marital portion of a pension plan after considering all the relevant factors in equitable distribution. The marital portion of a plan would be the portion that accrued from the date of marriage through the date of separation. In some cases, the entire pension will be marital depending on the timing of the marriage alongside the start date of the pension plan. The marital portion will also include investment experience on the marital portion that accrues post-separation. It will not include contributions by the employee made post-separation.

A court order is necessary to effectuate a distribution of a pension, or other qualified plan, in a divorce matter. Often called a qualified domestic relations order, or QDRO, the court order provides requisite information to the plan administrator regarding the split of the pension. Qualified plans are governed by the Employee Retirement Income Security Act (ERISA) and the QDROs allow an exception to ERISA’s anti-alienation provisions. QDROs may also be utilized outside of pension plans to allow for a tax-free rollover of benefits. A popular example would be a 401k or other profit-sharing plan. It is important to check with the plan administrator to confirm if a special court order is necessary in the context of a non-qualified plan. In some instances, a property settlement agreement or transcript describing the transfer along with a divorce decree is enough.

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Retaking Your Maiden Name

A spouse can elect to retake his or her maiden name through the course of a divorce action. In Pennsylvania, pursuant to 54 P.S. § 504, “any person who is divorced from the bonds of matrimony may resume any prior surname used by him or her by filing a written notice to such effect in the office of the clerk of the court in which the decree of divorce was entered, showing the caption and docket number of the proceeding in divorce.” It is also possible to request to retake your maiden name while the divorce is still pending in Bucks County. There is a $9 filing fee payable to the court for the certified copies of the name change decree.

For New Jersey, you may also elect to retake your maiden name in the context of your divorce. Good practice is to include the request to retake your maiden name in the initial complaint. You can amend the complaint subsequently or even request the relief orally at the time of your final divorce judgment. If you are looking to resume your maiden name after the divorce has been finalized, you must file a post-judgment motion with the court. There is a $50 filing fee. This process is still simpler than doing a civil name change. Once you have the certified order, you can proceed to Social Security, Department of Motor Vehicles, banks, etc. to have your name changed.

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Post Divorce Finances – Wrapping Up, Moving Forward

After your divorce you will have a new life to build. This may include finding a new place to live, transition your children to their new lives between homes, and becoming accustomed to your new home. While your emotions may be running high and you are excited about your future you need to be vigilant in establishing your own credit and gaining financial strength.

1) Know your credit score. Checking your credit score will give you a benchmark of your current financial state of affairs. Your numerical score will show you if you have work to do to increase your attractiveness to lenders. As you go out and apply for credit – a car loan, mortgage or even find an apartment to lease your credit score will be checked. Poor credit can significantly limit your ability to borrow money. In addition to knowing your credit score your credit report will also display accounts are open in your name as well as any derogatory information that might not belong to you so you can work on repairing it.

2) Close joint accounts.

You and your spouse probably had many joint accounts open such as checking and savings, investments and even debt (credit cards and lines of credit). Dividing these accounts will be handled during the divorce process but it is important to make sure that they are closed. If they are left open both parties have the ability to still use them and accrue debt in your name, which could be problematic for your credit.

3)  Open your own credit

You will need to establish your own credit as soon as possible. This can be as simple as low-limit credit card. Charge items and services to this account and make payments every single month. This should have a positive impact on your credit and demonstrate your ability to pay your bills.

4) Create a budget and stick to it

Living on one income can be difficult so it will be important to know how much you are spending. Establishing a budget will help you track your expenses and ensure you do not go over budget. Have a plan to pay down debt, put a bit of money into an emergency savings account and also some money for entertainment if you can afford it. Being responsible now will lead to great rewards for you in the future.

5) Pay down debt
While you may want to put money away into your savings account it is wise to pay down your debt as quickly as possible. There are many options to do this and you can find a plan that is right for you. Try to send in a little more than your monthly payments each month and also cover the cost of interest charges.

Stepping out on your own financially can be an overwhelming experience. We help you set-up your financial future and as you step into the preparation it is important to move wisely to protect yourself. Put professionals around you for guidance and always keep your eye on establishing security for yourself. Most importantly, make wise and prudent decisions to build yourself the security that you need.

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Supervised Custody

23 Pa. C.S. 5322 defines all the different variations of custody. Physical custody is defined as “the actual physical possession and control of a child.” Physical custody can be supervised if warranted. Generally, the court is considering if the welfare and safety of the child necessitates supervision. If supervision is deemed to be necessary, you have to establish who would supervise the custody time be it an agency of the court, one of the parties involved, or a third party. If using a third party, that person should acquire an understanding of the responsibilities of serving as a supervisor and what types of behavior are not permitted.

Philadelphia County provides for court-sponsored supervision in the Family Court building located at 1501 Arch Street. Parties may utilize the program on Sundays. Parties must bring their court orders for each scheduled visitation. Bucks County has two independent programs that provide supervision for custody matters: Kids First and the Assurance Group. Both programs offer professional supervision for a fee. This would eliminate the need for parties to pick other family members or friends as supervisors when they potentially don’t want to be involved in the custody matter. The programs are also helpful in that reports are generated detailing what occurs at the visits which can be referred to in future custody proceedings.

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