Discovery During Divorce

Discovery is the part of the divorce process when information is gathered regarding marital assets and debts and separate assets. One of the main tools used to gather this information are Interrogatories and Production Requests. Many a client has gasped when they have receive 100 very detailed questions to answer or Production Requests that are pages long asking for a large quantity of documents. When you are served with Interrogatories or Productions Requests, it is best to remain calm. This is a standard part of the divorce process. Many of the questions may not apply to your case as attorneys try to cover every possible question and uncover every possible asset. When answering these questions, it is best to put that you do not have any if it is an asset such as a business that you do not have. If the question asks for records that are accounts in joint names, you also do not have to produce them. You can merely indicate that the other side has equal access to this information. Before you panic, talk to your attorney. He or she can explain to you what you essentially need. In most cases, that will be any and all records that are only in your name or your name with a third party, not your spouse.

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Two documents to get during your Divorce

When you are getting a divorce, it is important to get an overall financial sense of what you own and what you can expect to receive. Two documents you may want to obtain are your credit report and your statement from Social Security. Your credit report will identify all credit cards or loans that are open in your own name or jointly with your spouse. You want to make sure all of these debts are considered when you divorce. You can obtain a free credit report each year from each of the three carriers. I recommend that you obtain one from each every four months so you can periodically check on your credit and make sure there are no missed payments on the joint accounts and no new surprise accounts. It is simple and fast to obtain this report, simply go to annualcreditreport.com and pick one of the carriers to obtain the report. Then in four months, pick the next carrier, etc. This way, you will have an updated statement every four months for free. You should also have a copy of your Social Security Statement. This is useful in that it provides you with a history of your earnings paid through payroll as well as provide you with the estimate benefit you will receive if you retire, become disabled or if you have a child and something happens to the parent. You can register and download this information at www.ssa.gov and should print this information. Having an earnings history is useful when you go to court on support to show what your history of earnings is.

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What is a true shared custody arrangement?

When parents divorce with children, the children need a schedule when they will spend time with each parent.  Courts seem to be moving more towards a shared custody arrangement so that both parents can actively participate in the children’s lives.  A true 50/50 custody schedule is when both parents have equal overnights in a two week period.  This schedule can take many forms, from alternating weeks, to alternating every two weekdays with a long weekend, to three set nights with one parent each week and alternating one night every other week. There are many different ways to arrange it so that each parent has seven nights in a two week period.  As in any custody case, it is whatever is in the best interest of the children.  When there is a true 50/50 custody schedule, the children are able to attend school in either parent’s school district since there is no primary custodian, however, the parties have to decide or the court will decide which school district they will attend.  

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Child Support when Custody is Shared

When parties have an equal custodial arrangement, meaning that they share overnights on an equal basis, seven nights in a two week period with one parent and seven nights with the other, there is still the possibility of a child support order. The party who earns more money will be obligated to pay support. If, however, there is a cost for health insurance, this amount will be factored into the guideline calculation. Any cost for daycare or after school expenses will also be factored into the equation. These costs can be significant and can greatly impact who gets paid and what amount. It is a good idea to always get a rough estimate on child support before going to court over these issues.

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Distribution of Debt during a Divorce

During the divorce process, information is gathered not only on assets, but also on debt. Marital debt is debt that is accumulated during the divorce, regardless of the name of on the account. This means that if you have a charge happy spouse, you may be liable to share in the debt created by their spending spree. The balances of the credit cards and debts as of the date of the separation of the divorce is the date to look at for purposes of debt distribution. Since divorce often takes awhile, you will want to gather this information as soon as you separate. You will also want to keep track and gather proof of every payment you make on this debt since you separated so that you can seek credit for this payment when you get divorced. If your overall marital estate is primarily distribution of debt, you may want to consult with a bankruptcy attorney. Any debt that is discharged in bankruptcy does not get considered in the divorce if it is discharged prior to the divorce going through since it no longer exists. It is always wise to consult a bankruptcy attorney when there are high debts in divorce and few assets to determine not only whether to file bankruptcy or if you qualify but when to file it.

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Child Abuse Prevention Month

April is National Child Abuse Prevention month. The goal is to raise awareness in respect to preventing abuse, reducing the risk of abuse and promoting healthy families. The Children’s Bureau of the U.S. Department of Health sponsors the annual awareness campaign. The first Child Abuse Prevention week was recognized in 1982. It extended to an entire month of awareness the following year in 1983. The theme continues to be “Making Meaningful Connections” to promote familial and community relationships as a support system to reduce abuse.

The national website at www.childwelfare.gov includes resources with practical tips for parents on preventing abuse. Topic areas include how to make healthy connections, how to feed your family, how to manage finances, and how to identify risk factors and protect against them.

Information specific to Pennsylvania is available on at www.preventchildabusepa.org  All 50 states have a chapter of Prevent Child Abuse america with Pennsylvania’s chapter being chartered in 2010. If abuse is suspected a report should immediately be made to the local police department and the ChildLine hotline at 1-800-932-0313. A Protection From Abuse filing may also be pursued by the parent or caretaker.

Click here to read more on Protection from Abuse.

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Drug & Alcohol Testing in Child Custody

Sometimes in child custody cases one of the parents struggles with an addiction either to drugs or to alcohol. When the parties are no longer together, the court must decide contact for each of the parents with their children. If there is a drug or alcohol addiction, it can impact the type of custody and amount of time a parent will be able to spend with their child. Oftentimes, the other parent will want those visits to be supervised. In order to establish that a parent has an addiction and in order to determine the severity of the addiction, it may be necessary to have the court order mandatory drug and alcohol testing. There are various types of testing that can be done to determine what type of drugs a parent may have been doing and each of the different types of tests have a window of accuracy. In a child custody case, it is always best to request a hair follicle test as this provides the longest history of drug usage for a parent. In addition to drug testing, if a parent has an alcohol addiction, there are tests that can measure the consistency in which a parent consumes excess alcohol. These tests are critical when a parent has an addiction as being under the influence of drugs or alcohol while caring for children can greatly put them at risk of physical harm due to neglect and/or abuse.

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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.

Click here to read more on divorce.

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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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