SSD vs SSI

Social Security benefits may count as income depending on the nature of the benefits be received. For that purpose, it is important to differentiate the types of Social Security benefits to ensure an appropriate support calculation. Social Security disability (SSD) benefits are counted as 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.

In addition to the recipient receiving a benefit, their children can also receive a derivative benefit. The derivative benefit can be set up to be paid directly to the primary custodian of the children if the recipient does not exercise primary custody. Disability payments are retroactive to the date the disability was established so there could be a lump sum payment initially. Both the amount received by the recipient and the amount on behalf of the children as a derivative benefit should be factored into in support calculation.

Social Security income (SSI) is not be considered income for purposes of a support calculation. SSI is a federal means-tested benefit. It operates as more of a welfare benefit similar to cash assistance or food stamps. 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 the parent is otherwise capable of working, income from employment can still be considered for a support award.

Click here to read more on calculating child support.

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File to Modify Support if you are laid off

Whenever there is a change income, whether it is the party receiving child support or the party paying child support, it is that person’s responsibility to file to modify the support order. When someone is suddenly let go from work, even if they qualify for unemployment income, it is often necessary to file to modify support. Even though the wages are attached and the court receives their funds from unemployment, this still does not mean the court is put on notice. You must take initiative and file to modify the order. Even if it is temporary, you should do this in case you are out of work longer than you anticipate. Having to pay a support order based on income you no longer have can be disastrous. In addition, if you have lost health coverage, it is important that you notify the other party as soon as possible. If you are receiving support, likewise, you should file to modify your support order. Support orders are modifiable if either party experiences a change.

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Communications with your Ex’s Divorce attorney

Are you getting divorced and represented by counsel? Under the PA Rules of Professional Responsibility, an attorney is not permitted to communicate directly with a party whom they are aware is represented. This applies to that other party as well. These rules are there to protect not only the attorney but also the party. While sometimes you may think it is cheaper and easier to communicate directly with your ex’s attorney, it is a mistake. You may say or do something that could jeopardize your case. If you have hired an attorney, it is best to let them do their job and filter everything through your attorney. Your attorney will be able to determine what is relevant and should be conveyed to the other side and what may just simply end at their office. If you are frustrated with your legal fees and working with a middleman, explain this to your attorney and they may be able to offer suggestions on ways to either minimize your expenses or getting the information faster to the other side. Whatever you do, do not pick up the pen, computer or phone and contact the other attorney.

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Keeping Medical Records for Support Orders

If you have a charging support order in PA for either child or spousal support, you likely have to pay the first $ 250 in out of pocket medical expenses each year per person before the remainder are allocated based on a percentage. You need to keep good records in order to receive your remainder share. You should create a list per person of all medical bills per person that are received each month and keep a copy of the bill. You will also need to keep a copy of the check or credit card receipt showing that you paid the copay or bill. Once you have reached $ 250 for the year, you should provide the documentation showing that you reached this limit and then start keeping track of all bills that come in for the rest of the year and request the percentage the other side is responsible to pay. You will likely have to front the money and seek reimbursement. In all cases, if payment is not made by March of the following year, you will need to file contempt with the court in your Domestic Relations office and again provide proof of notice and payment. It pays to be organized and you should make this something you do in January of each year.

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Dividing Retirement Accounts in a Divorce

If you are getting divorced, you may have accumulated retirement plans during your divorce. Sometimes clients are surprised when they learn that the retirement plan that they have earned in their own name is subject to equitable distribution. Not only can your current spouse be ordered to be named your beneficiary in the event of your death, but they actually will be awarded a percentage of the benefits at the time of the divorce. It is important from the outset to obtain the plan documents from your plan administrator so that you know what options you have in the event of retirement on the selection of a survivor beneficiary as well as so you know under what terms a spouse can receive a distribution. In addition, just because your court order or agreement awards your spouse a percentage of your benefits, does not mean this is automatically going to be tax free. You must also have the order drafted in the form of a Qualified Domestic Relations Order. Most plan administrators have sample language that they will approve and it is a good idea to ask your plan administrator if they have sample language. You must always have your plan administrator approve the QDRO that is prepared before you send it to the Court to have the Judge enter it as an order.

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Weighing the Cost of Litigation in Divorce

When issues arise in a divorce that are in dispute, parties oftentimes are concerned with being right or getting justice. The divorce action itself, aside from the peripheral issues of custody if there are children, involves money. The court does not assess who is right and who is wrong in wanting to get a divorce. The court generally does not care why someone is getting divorced. The issues before the court are what financial assets does the court need to divide and what are the incomes of the parties with the disparity income between the parties as the biggest driving factor in the outcome of a divorce. When parties have issues that are in dispute, they often either involve a dispute over the value of an asset or the percentage that should be awarded in the divorce. In these instances, a party who is more interested in being right forgets to weigh the cost of proving they are right. For example, if two parties disagree on the buyout figure for a house and their dispute is a matter of difference of $ 20,000, the parties need to step back and weigh the cost of getting the house appraised, bringing an appraiser to testify in court, preparation time for court, time at a court hearing and any court costs and their expected percentage of the asset. When this analysis is done, oftentimes, the party will realize they could spend more in litigation than the amount they hope to gain the dispute. Disputes over financial assets are best settled by compromise. No one is ever going to be right and since courts are not liberal in awarding attorney fees, even if a party’s position prevails, the party will still be out of pocket to get to that position. At a minimum, a party must consider at all times the cost of litigation. For each and every dispute, it is important to weigh these factors: the cost to bring the claim, the anticipated cost in legal fees for discovery, preparation and attendance at trial, the amount of time it will take to have the issue determined, the cost of any expert witnesses, the amount of time and money lost from work in order to prepare for court and attend a trial, the emotional and psychological toll both on the party and any witnesses, the importance of preserving the relationship if any with the other party and affect on any common relations. Sometimes, a party may have to give up pursuing being right for the art of compromise because it makes more sense financially and psychologically. Understanding this is something a party needs to do anytime they are involved in litigation.

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Bifurcation

Bifurcation is the process whereby a divorce decree may be granted prior to resolution of the economic rights of the parties. Where granted, the court retains jurisdiction over the parties’ equitable distribution claims as well as support claims. Section 3323 (c)(1) of the Divorce Code discusses where bifurcation might be available. If both parties consent to bifurcation, the court can enter a divorce decree indicating that they are retaining jurisdiction over the unresolved issues. In the absence of an agreement for bifurcation, the party requesting it would have to demonstrate why it is necessary. Specifically, the statute states compelling circumstances must exist and there must be sufficient economic protection for the other party.

The other requirement for bifurcation is that there are already grounds for divorce. In a no-fault divorce, this would refer to both parties having consented after 90 days or a two year period of separation having run. Whether there are compelling circumstances and sufficient economic protection is up to the court’s discretion. The length of time the parties have been separated and/or litigating the divorce matter can be a relevant factor. Tax consequences have been considered as a factor given the potential benefit of filing as individuals versus filing married separately. Finally, the court may consider the assets already in each parties’ possession as well as a support order to determine the appropriateness of a bifurcation request under the sufficient economic protection prong. Some of the policies behind allowing bifurcation is to let the parties move on with their lives and offer an incentive for prompt disposition of all issues.

Click here to read more on divorce.

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Support Orders and Retroactivity

Normally a support order is retroactive to the date of filing. If, however, there was a reason someone was precluded from filing for support, say for a physical or mental disability, the support order could be retroactive to the date they could have filed if they had been able. If a party conceals their income, the court could find that they are in contempt of an order that requires material changes to be reported in seven days and the court could retroactively modify the support to the date that they concealed their income. This also requires that the other party timely file once they learn of the misrepresentation. In these cases, a Court can retroactively adjust the amount of arrears on a support order. If there is a change income after a support order is entered that would materially affect the amount of support, it must be disclosed to the other side.

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Counseling during a Divorce

Oftentimes when people are getting divorced, there are many emotional issues involved. In instances where one spouse did not want the divorce, or even when they did but they endured physical abuse, adultery, mental abuse, or just the trauma of change that a separation brings, counseling with a qualified therapist or psychologist can be invaluable. While the process of getting divorced brings with it all these emotions, the application of the law of divorce does not consider all these emotions in the actual outcome of the division of the assets or alimony. This can be extremely frustrating for someone who feels that they need to be compensated for all they endured. It is important to be able to separate the emotion of the divorce from the actual application of the outcome of the divorce itself and this is where a therapist can really help someone. Having someone to help through the emotional process is important to be able to be rational when it is time to come to a discussion of the settlement of the assets and alimony.

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Changing Your Name Legally

There are many reasons why someone may want to change their name. It could be they have never really bonded with their parent and want a new last name. It may be that they wish to change their name for business purposes. Perhaps, they are from another country and want to change it formally to another name. Maybe they have always used a different first name. Whatever the reason, in most instance, when someone wants to change their name, they will have to file a Petition for a Name Change with the Court. The costs involved can sometimes be unexpected. In addition to paying for the filing fee that court charges to file the petition, there are fees to have fingerprinting done by the State Police. The Court will also do a credit check. In instances where someone is trying to change their name to escape from the stigma of a criminal record or from creditors, the Court will often deny the petition. There are also fees for publication in both a newspaper of local general circulation as well as in a legal paper. In addition, notice must be given, usually by personal service or certified mail to anyone whose interest may be adverse to the change of name (normally a parent who gave them the name). A change of name in the legal sense under these circumstances requires attendance at a hearing even if the parents do not dispute the change of name. This means that there will be lawyer fees on top of all the out of pocket expenses. Of course, when you remarry or divorce, you do not have to go through the Petition to Change a name. When you marry, you may automatically adopt the name of your spouse and if you divorce, there is a much cheaper option to file for a name change called a Notice to Retake your maiden name that does not require a hearing or publication and usually only a nominal filing fee. It can be done whether a person is an adult or a child. If it is a child, the parent must petition on the child’s behalf. In all circumstances, the court will weigh the reasons for the change, an in many cases, a name change will be granted when there is good reason or no opposition.

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