The finances of your divorce – Three Important Parts

During your divorce every nook and cranny of your financial picture will be evaluated. Together we will take a look at the finances you brought into your marriage and then what you and your spouse accumulated together. It is very important that you have a full understanding of your financial picture and copies of all financial documents.

What did you bring into the marriage?

Before you got married you may have had assets including investments, property and savings account. If you kept them solely in your name and they did not increase due to the influence of your spouse, they are yours to keep. If you commingled these assets with your spouse, meaning you added his/her name as an owner, then they are considered a contribution to the marriage and the court will determine how to allocate them. Some counties will apply their own methodology for determining what portion you will get credit back for this contribution based on the date it was contributed and time that has passed. The increase in value of a separate asset is always marital. Usually we look at each asset on a case by case basis. It is important that you provide your attorney with the details of any contributions you made either from before the marriage or through an inheritance and it is also important to have a paper trail of these transactions.

What assets did you build together?

The assets of a marriage are simple to state but can be difficult to calculate. For instance, if you had a 401k before your marriage but continued to then add to it during your marriage, your spouse is entitled to share in the accumulation since the date of your wedding. If you and your spouse purchased a home together the current equity is up for consideration.

Make copies of your statements

A very important part of your financial situation is knowing your current financial situation. When you decide to divorce (or find out you are getting divorced) start to immediately make copies of financial statements. Do not let your spouse try to hide money or claim

Just as every couple is different so is every divorce. You have the ability to negotiate each part of your divorce to ensure you are getting your share of the assets. Additionally, based on other factors such as income and potential income we can always negotiate in other ways as well – trade-offs are common. An experienced divorce attorney will be able to explain your options and negotiate creative solutions for you.

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Pennsylvania Victims of Domestic Violence May Have Easier Road to Divorce Under New Law

On April 21, 2016, Governor Wolf signed into law a bill which essentially simplifies the process for victims of domestic violence to obtain a divorce. Currently, under the Divorce Code, even in the case of domestic violence, if a spouse refuses to consent to the divorce after 90 days, the divorce cannot proceed until there has been a two-year separation. In the new law that takes effect in sixty days (around June 22, 2016), a victim of domestic abuse can file for divorce and the law presumes consent of a party if they have been convicted of committing a personal injury crime against the other party.

Additionally, the new law allows the victim to object to court-mandated divorce counseling if they have a protection from abuse order. The victim can also object to court-mandated counseling if they were a victim of a personal injury crime for which the other spouse has been convicted or is in an accelerated rehabilitation disposition program as a result of conduct for which the other party was a victim.

For purposes of presuming consent to a divorce under this new law, the party has to have been convicted, meaning having been found guilty, having entered a plea of guilty or nolo contendere or having been accepted into an accelerated rehabilitative disposition program. A personal injury crime under this new law is defined as an act that constitutes either a misdemeanor or felony or criminal attempt, solicitation, or conspiracy to commit any of the following: criminal homicide, assault, kidnapping, human trafficking, sexual offenses, arson and related offenses, robbery, victim and witness intimidation, homicide by vehicle, or accidents involving death or personal injury.

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Child’s 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 nonrelocating party to exercise custodial rights.” Case law has established that when neither parent moves but the child is moving, Section 5337 is not triggered. In D.K. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014), the Father was located in Pittsburgh, PA with the children and Mother was located in North Carolina. Mother was subsequently awarded primary custody resulting in the children moving to North Carolina. This was not considered a relocation since neither parent had moved, however, the court did state that certain factors in Section 5337(h) should be considered due to the impact on the children.

Specifically, Section 5337(h)(2), the age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child, (h)(3) the feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties, and (h)(7) whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity. These factors should be considered in addition to, or alongside, the best interests factors to be considered in every custody case under Section 5328.

Click here to read more about child custody.

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Treatment of Veterans Benefits

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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. Title 38 of the U.S. Code addressing veterans benefits dictates that the benefits are off limits to creditor claims. However, Title 38 has special provisions regarding the support of family dependents. Accordingly, receipt of veterans benefits can be counted as income for support purposes.

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. The definition goes on to draw a distinction between any benefits received in lieu of military retired pay. A similar distinction arises in support cases as far as whether the benefits can be garnished for payment of an award. Garnishment of veterans benefits is only permissible where the service member has waived military retired pay to receive the veteran benefit.

Click here to read about military divorce.

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National Alcohol Screening Day

Today is National Alcohol Screening Day. The day is intended to raise awareness and highlight treatment options. It was first observed in 1999 and falls under the category of mental health screenings. Alcohol abuse is a frequent issue in family law matters. Often times, excessive alcohol consumption can be a trigger to aggressive or violent behavior. It is not unusual for Protection from Abuse matters to include allegations from the victim that the other party was drinking prior to the incident resulting in the petition. Alcoholism is also a factor in custody matters.

Drug or alcohol abuse is one of the factors the courts must consider when trying to determine what custody arrangement will be in the child’s best interest along with past or present abuse. The court must also consider the criminal background of the parents as well as any other adult household members. Charges related to driving under the influence of drugs or alcohol are on the list as far as criminal history to be considered in a custody matter. It is possible to request a drug/alcohol evaluation as part of a custody matter. Depending on the extent of the abuse, supervised custody may be appropriate to ensure the safety of the child. You can visit https://mentalhealthscreening.org/programs/initiatives for more information on national alcohol screening day.

Click here to read more about Protection from Abuse.

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Updating your Will after Divorce

After your divorce it is very important to update your estate planning documents, most importantly your will. If you leave your old will in place your financial assets, property and even the care of your children may wind-up in the hands of those who you no longer want – your former family members or ex-spouse.

Select a new executor of your will: the executor of your estate is the person who will be charged with distributing your wealth and property. While they are to follow your wishes, if your executor is still your former spouse he/she may not do as you wish or add undo stress when dealing with your family members. When you select an executor make sure they understand your wishes and

Clearly outline who gets what items: Part of the reason you want to clearly spell out the distribution of your items is to avoid fighting by your loved ones after the fact. This can include a family heirloom or an important piece of your jewelry. Rather than have your children fighting over items they were “promised” it is so much easier if you

Name a guardian for your minor children:

In most cases, upon your death your former spouse would be given full custody of your children. If that would not be in the best interest of your children then you will need to spell out why and we suggest you do that under the advisement of an attorney. Furthermore, if your former spouse is no longer in your children’s life due to domestic violence, alcoholism or drug abuse, it is critical that your will contain the right wording and plan for your children. Protecting

Estate planning may seem tedious but is there to protect your wishes should you pass on. Do not rely on state law to handle your estate. Take a proactive approach and ensure that financial assets and care of your children are handled by a responsible individuals who will ensure your children, financial assets and valuables are handled properly.

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Grandparent Custody 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.

It is also possible for grandparents to request any form of custody under Section 5324 of the Domestic Relations laws. Grandparents may request any form of custody if 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.

Peters v. Costello, 586 Pa. 102 (2005), was a Pennsylvania Supreme Court case which determined that 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. The court went on to explain that the statute conferring the right of grandparents to seek custody is not restricted to biological grandparents.

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. In Peters, there was testimony that the grandparents raised the mother, the mother and child had lived with them for several years, they had a close relationship with child and spent time with her including birthdays and holidays, and neither parent had previously objected to their de facto grandparental relationship with the child.

Click here to read more about custody.

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Post-Nuptial Agreements

Parties are often encouraged to try to reach an agreement to resolve whatever issues have arisen in any legal matter. In family law, agreements are especially encouraged due to the personal nature of the issues at hand along with the belief that it is better for the parties to draft their own agreement rather than allow a stranger to dictate their family dynamics going forward. A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement would provide that each party retains anything they acquire in their own name and that anything marital or acquired jointly will be divided based on the divorce laws. A pre-nuptial agreement may also provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage.

An agreement can still be entered even after the marriage date. It addresses the same issues as a pre-nuptial agreement as far as how assets and debts would be divided in the event of a divorce and if any support award would be contemplated. This type of agreement is a post-nuptial agreement. A property settlement agreement or marital settlement agreement is the term for an agreement entered in the context of a divorce. For any of the above agreements to be valid certain conditions should be met. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation.

Click here to read more.

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How To Tell Your Children About Your Divorce

Making the decision to your divorce can be difficult. If you have children, the thought of telling them about the split may be overwhelming. While it can be a very difficult conversation to have with your children, a bit of planning and commitment to compassion will make it easier on everyone.

Have a plan to tell them. You and your spouse are ending your marriage and so will begin your relationship as co-parents. While you may be battling each other on several fronts make the commitment to show your children peace. Bring the children together as a family, and explain the situation and plan. Make sure they are comfortable and in a safe place and do not have plans for that day. They may have a variety of emotions to deal with and will not want to cancel plans or be forced out of the house.

Accept the emotions and questions as they are presented to you and do not tell your children how they should react. They may cry, yell at you, sit stunned or actually say “this is better since you fight all the time.” Your kids will have many questions and may even seem a bit self-centered. Remember, children want to feel secure about where they are going to be living and when they are going to see you. More than likely they have friends who have divorced parents and see the switching of homes and sharing of holidays. Your kids are going to want to know what the plan is for them.

Reassure your children that it was not their fault and that you still love them. Often times children feel that if they behaved better, did not fight with their siblings, or earned better grades their parents would be happier and staying together. It is critical that they hear from you it is not their fault and that adult reasons are the cause for your split.

During the months while you are getting divorced you have a beautiful opportunity to show your children peace. Yes, there may be many moving parts including moving to two new homes. If you give them a stable environment and always come from a place of love while in their presence they will adjust a little easier to all the changes.

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Dividing Property in Divorce

Equitable distribution is the term used in Pennsylvania referring to division of marital property at the time of divorce. Marital property will consist of nearly everything acquired in either party’s name from the date of marriage through to the date of separation. It will also include pre-marital assets that have increased in value during the marriage. Equitable distribution does not necessarily mean a 50/50 split of all marital property. Instead, the statute on equitable distribution sets out 13 factors to be considered. Those factors are listed in 23 Pa C.S. 3502. While the length of marriage is a factor in equitable distribution, it does not mean that assets won’t be split at all in shorter marriages.

If the parties have to go to court for equitable distribution, they will be required to submit a statement beforehand laying out what they allege is the marital property at issue, how the factors listed affect their case, and what they are ultimately seeking as an “equitable” distribution. It is important to have knowledge of all the marital assets and debts at issue. Additionally, parties should have documentation to prove the value of any assets and debts to be addressed. Key dates for valuation may include date of marriage, date of separation and final hearing date. Items acquired after the date of separation but prior to the final divorce decree should also usually be excluded.

Click here to read more about division of property.

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