Exclusive Possession and Divorce

Sometimes when a divorce is pending, a party may decide that they no longer wish to live in the marital residence. When a party moves out and establishes residence elsewhere, the party who remains in the home may seek and will usually always be granted an order for exclusive possession of the marital residence while the divorce is pending. This means that even if the house is owned in both names of the parties, only the party who is living in the house will be allowed in or on the property while the divorce is pending. If you are thinking of leaving your home and moving out, it is advisable to make sure that you have secured all of your possessions before you move as you could be prevented from re-entering the property. Until a court order is entered, however, if you left and decide to return unless there is an order preventing it, you can always return to the house. If your spouse leaves, you can change the locks, however, until you get a court order, they can break a window and legally gain access. You may want to either get a written stipulation for exclusive possession or a court order.

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Holidays and Custody

When it comes to holidays and custody, the courts generally will alternate the holidays so that one parent has the children in even years and the other parent has the children in odd years. Easter is usually only considered as a Sunday holiday not an overnight the night before. It is important, however, to always think about the children and parents can always design their own holiday schedule instead of leaving it up to the Courts. If both parties enjoy having Easter morning with baskets, you may want to alternate the Saturday into the Sunday. You may also want to split the day much like you with Christmas so that one parent has the night before and morning the other parent has the other half of the day into the next morning. Even children who do not have parents who are divorced are often shuffled on holidays between homes of in-laws, other relatives, etc. It is important to think about the children and what is in their best interests. When is it is not practical to share the holiday, a good alternative would be to Skype or facetime with the other party and family so that they can share in the celebration by video.

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Who provides medical insurance in divorce and support

Typically during a divorce, medical insurance is already in place when parties separated. Unless the parties agree otherwise, you cannot unilaterally drop your spouse from medical insurance during a divorce and must provide coverage until a divorce decree is entered as long as it still available through work. When parties go to support court, if both parties have medical insurance available for the children, it oftentimes make sense to look at who has a better plan and at what cost. It is not just the out of pocket expense on the premium that should be looked at, but also the coverage available and cost of deductibles. If the parties cannot agree on who will provide coverage for the children the court will weigh these variables to decide what makes the most sense. No matter who provides the coverage, the parties should realize that they will both share in the cost of medical premiums in proportion to their incomes either as an add on to basic child support or as a deduction. The parent who receives child support, however, will pay the first $ 250 in out of pocket medical expenses and the balance will be shared based on incomes.

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Documents to bring when beginning the probate process

Clients often ask what documents to bring when probating an estate.

First, if there is a will, you need the original signed will. The executor(s) named in the will must be present. If the executor does not wish to handle the estate, then they will need to sign a renunciation which will be presented to the Register of Wills. You will also need to present photo identification (i.e. drivers’ license).

You will also need a death certificate.

Finally, you will need to pay the filing fees, which are based on the size of the estate. You will also need to pay for each short certificate. A short certificate permits you to access the decedent’s accounts. It will list the decedent, date of death, and name of executor/administrator.

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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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