Where do I file for Child Custody?

Jurisdiction for child custody is wherever the child has lived for the past six months. If, however, you already have a court order, the court may have retained jurisdiction of the custody order if one of the parties still lives in that jurisdiction. If no party has lived in any jurisdiction for at least six months, you must look at the state that has the closest ties to the child and see if that Court will exercise jurisdiction. The reason a court exercises jurisdiction where the child resides is because that state and county will have the best available information regarding the child, including education, living conditions, etc. all of which are relevant in determining custody of the child. Within a state, you should file in the county where the child resides.

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Finality in Divorce

Sections 3331-3333 of the Divorce Code discuss the potential to review a divorce after a decree has been issued. The general policy is in favor of finality to avoid endless litigation, however certain circumstances will warrant reconsideration. First, parties should act as timely as possible. Section 3331 limits attacks on decrees. An appeal is the only option where one of the parties has died. There is a two year limit to take action specifically where the party questioning the decree had knowledge of the circumstances supporting the attack and failed to timely take action. Section 3332 outlines when a decree may be opened or vacated. In general, there is a thirty day time limit to request review of an Order pursuant to 42 Pa. C.S. 5505.

Section 3332 also draws a distinction between intrinsic fraud and extrinsic fraud. Intrinsic fraud must be alleged within the thirty day time limit whereas extrinsic fraud has a time limit of five years. Intrinsic fraud refers to an issue that was adjudicated. Extrinsic fraud refers to a situation where a party was precluded from having their fair chance at adjudication altogether. Examples of extrinsic fraud include where a party was kept unaware of the proceedings or by promise of a false compromise. There is no extrinsic fraud where the party had ample opportunity to object earlier in the proceedings and simply failed to do so.

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No Child Support Responsibility for College Costs in PA

In Pennsylvania, unlike New Jersey, child support terminates when a child reaches age 18 or graduates from high school, whichever is later. The Court has held that there is no obligation for parents to provide for children beyond this time. Even if your child resides with you and does not have a job and instead chooses to go to college, the other parent will have no obligation to pay anything towards college costs. If, however, you negotiate an agreement in writing with the other parent to pay for college costs and the other parent agrees to it in writing, then the Court can enforce that agreement under contract law. Oftentimes, parents who cannot negotiate an agreement for college costs in their divorce assume this means the other parent has no interest in paying or contributing to college costs. This is not always the case. A parent may still intend to assist a child with college costs but by not putting it in writing, they are not legally obligated to do that and instead, can decide if and how much they want to contribute. Also, it is important to decide where the child who attends college will reside as only the income of the parent with whom they reside will be relevant in qualifying for financial aid. If that parent, remarries, however, the stepparent’s income and assets can affect the amount of financial aid available to the child even if they have no legal obligation to support the child.

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Divorce after Two Year Separation

After two years of separation,  grounds for divorce can be achieved in PA without the consent of the other party. One of the two no-fault grounds for divorce is a two year separation. This separation does not have to mean physical separation. It is legal separation. Legal separation is no later than the date that a divorce complaint is filed. Parties can reside together in the same home while the divorce is pending. After two years, however, from the date the divorce was filed, one party can allege that it has been two years and seek grounds for divorce based on that fact. The other side must actively file a counter-affidavit denying the two year separation or denying there is an irretrievable breakdown of the marriage in order to stop the grounds for divorce from being entered. If a counter-affidavit gets filed, a hearing will be needed to determine if in fact the two year separation has occurred. Grounds for divorce is only the first step in getting a final divorce. In order to get a final divorce, if claims for equitable distribution or alimony have been raised, an agreement either needs to be put in writing or the parties need to go to a divorce hearing after they get grounds for divorce. This is often why there are cases that take at least three years before they are final, and some much longer.

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Benefits of a Law Firm Team

When you hire a law firm, it is a good idea to find out whether the attorney you hire is the only attorney who will be working with you or whether the firm takes a team approach. There are many benefits of the team approach. When you hire an attorney and you meet with your attorney in their office, it is often easy to forget that your attorney is not in their office everyday. You may expect that they will be readily available to you at a moment’s notice, despite the fact that they could very well have days that they are in court and not in the office. What happens when your attorney is in court and you have an emergency? What happens if your attorney is scheduled to be in court in another matter the same day that you have court? When a firm takes a team approach your options are expanded. Oftentimes there is another attorney at the firm who can assist you with any of your legal needs should your lead attorney be unavailable. In addition, in a firm that takes a team approach, if your attorney has a conflict, there is another attorney who could equally represent you if you do not want to or cannot move your hearing to another day. If, however, you like the idea of only one person handling everything, it is best to discuss this with your attorney from the outset and also to understand that this could result in slower turnaround if your attorney is out of the office or may result in hearings that have to be rescheduled if there are multiple court proceedings in one day. As with any relationship, communication is key and it is important to discuss all of these things when you hire your attorney.

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Changes to the Custody Order by Agreement

The purpose of a custody order is to provide both parties with a schedule on when they have their children and no longer live in the same home. This eliminates any confusion for everyone involved, including the parents, children, teachers, coaches and others who may need to know who is supposed to pick up a child and when. This is why schools require that a custody order be on file with the school. A custody order is not only a useful tool to help everyone know when they are supposed to have the children but also it guarantees time that both parents get to spend with the child or be held in contempt. With this said, however, there are times when both parents may want to deviate from this schedule by agreement. If BOTH parties are agreeable to change anything in the custody schedule, you do not have to go back to court to do so unless you want to make it a permanent, guaranteed changed. If both parties agree to make changes, it is best but not necessary to put it in writing. It is encouraged that parties work with each other as custody orders cannot contemplate every single thing that may arise such as a wedding, party, or other event that flexibility may need to be used. Parties can always give each other extra time, makeup time, agree to switch days, etc. by agreement regardless of what the custody order says as long as both parties agree.

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Revoking a will

If you create a will, the will is in effect until it is revoked. In Pennsylvania, a will may be revoked in several ways.

First, creating a new will revokes any prior wills.

Second, you may create a document stating that the will is to be revoked. This document must be executed the same way as a will is to be executed.

Third, you may burn, tear, cancel, obliterate or destroy the will, with the intention of revoking the will. You may also have a third party destroy the will in the same manner, as long as it is in your presence and by your express direction. In this case, two competent witnesses must affirm that this is the case.

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Codicils

Every time that you create a will, you revoke all prior wills previously made. However, sometimes you wish to amend the will while keeping the majority of the terms the same. For these situations, it is best to create a codicil.

A codicil is an amendment to a will. The document can add or delete provisions of your mst recent will. You may also make revisions, such as changing the name of an executor or giving a specific bequest to an heir. When you pass away, your codicil is filed with the Last Will and Testament for probate.

However, if the change is significant, I would recommend preparing a new will.

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Living Will

A living will, also called an advanced directive, is a legal document which details your wishes regarding medical treatment when you are in a terminal condition or in a state of permanent unconsciousness, including persistent vegetative state or irreversible coma. A living will gives you the right to determine which treatments, such as cardiac resuscitation and antibiotics, and you choose to accept or decline them.

A living will also gives a you the power to designate a surrogate to make medical decisions on your behalf.

If you create a living will, make sure that you give a copy to your doctors. It is also best to express your wishes to your family members.

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Life estates

When you pass away leaving real property (i.e. house), the property is sold or goes to your heirs, either under a will or through intestacy. Typically, the heirs have the right to do as they wish with the property, such as selling it, keeping it, repairing it, or renting it. Another option is to give someone a life estate.

Under a life estate, that beneficiary has the right to the property for the rest of their life, and then the property reverts to a remainderman. The beneficiary is still responsible for maintaining the property and paying the expenses such as mortgages, taxes, and utilities. While the beneficiary is alive, he can reside in the property or rent it out. He can make improvements on the property or keep it as is. Typically, if he rents it out, the beneficiary gets to keep the rental income. However, when the beneficiary passes away, the property does not go to his or her heirs, rather is goes to the heirs of the original owner.

There are several advantages to a life estate. For example, if you leave a beneficiary a life estate, you know that they will get to stay in the property for their life, and you still get to dictate who gets the property upon his passing. Additionally, there may be a savings on the inheritance tax, depending on who inherits.

One down side is that neither the beneficiary nor the remainderman has the right to sell the property on his own during the beneficiary’ lifetime. The beneficiary cannot sell the property because the remainderman has ownership upon the beneficiary’s passing, and the remainderman cannot sell as the beneficiary has the right to stay during his life. Both parties must agree to sell together.

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