Earning Capacity in a Divorce or Support Action

If you are getting a divorce and there are child or spousal support issues involved in your case, the Court can hold you to an earning capacity if you are not working or you are not fully employed. What this means is that Court can assess you with a potential income based on your work history, education, skills, or even possible earnings. For example, if you work 15 hours a week and earn $ 20 an hour, there is a good chance the Court can impute earnings of 40 hours a week at $ 20 and hour on you when they determine support. This does not mean you have to work 40 hours but it means that income will be used to determine how much support you will receive from the father of your spouse.

Sometimes a vocational expert may be hired to assess your abilities to earn a living and this person will testify and write a report on what they think is a reasonable earning capacity. This is not always employed due to the cost of hiring a vocational expert and bringing them to Court but may be useful when an employee has significant education or skills that should generate a higher income.

If you are self-employed, the Court may also impute an income to you that differs from what you report on your tax return. The Court will scrutinize you more closely when you are self-employed, reviewing tax returns, personal expenses paid by the business, your income and expenses form. If you attempt to testify that your income is less than what your expenses clearly seem to generate, the Court may decide your income is based on the expenses you pay out.

If you are disabled or you are receiving unemployment, the Court will use the disability or unemployment income as your income rather than assess you will a full time earning capacity. In some instances, a court may attempt to hold you to the minimal income you can earn while still collecting benefits, but you should never agree to this. If you are disabled and have children, you may want to also be sure you have applied for the benefit for the child. If you are disabled but you have not yet gotten approved for Social Security, the Court may hold you to an earning capacity. In those cases, you want to get a disability note and records certified from your doctor.

For additional information, see:com/Family-Law-Divorce/Divorce-Involving-Business-Owners-the-Self-Employed/

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What Happens to the Divorce if you Spouse dies?

If you are getting a divorce, what happens if your spouse passes away before it is finalized? Under Pennsylvania law, if you have established grounds for divorce, the Family Court may still proceed with equitable distribution of your assets. They cannot grant a divorce posthumously, but you can still seek your share of the assets that you both accumulated while you were married. This is especially important in cases where the assets are held in your spouse’s name. You will need to file a Petition to substitute your spouse’s estate as the other party.

If you do not have grounds for divorce, then the divorce action will terminate and you will have to pursue your rights in Probate Court. Under the Estate laws, as a surviving spouse, you are entitled to receive in Pennsylvania 30% of your spouse’s estate even if they did not include you in the will. You would have to file a Petition to seek your elective share of the estate. If you have grounds for divorce at the time your spouse has passed away, you lose your right to seek the elective share.

If you have a spouse who is ill while you are getting divorced, it may be important to make sure you have established your grounds for divorce. In Family Court, there is a greater possibility that you will receive more of the assets since it is a Court of equity. It does not mean that since your spouse died, you will receive everything, but you likely will fair better than if you have to go to Probate Court. In order to establish grounds under the no-fault statute, you either have to have both parties consent to the divorce after 90 days of service or you can move to establish the grounds after a two years separation.

For additional information see:/Family-Law-Divorce/Grounds-for-Divorce/

 

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Support for Adult Children

A child support obligation typically ends when the minor child is eighteen or graduates high school, whichever is later. However, in certain circumstances the obligation for support may continue past those milestones. One example would be if the child has a disability. Pennsylvania courts have held that the child support guidelines would continue to apply in the instance of a child who, despite age, remains unemancipated or unable to support themselves by virtue of a disability. The court is to determine if an adult child has a mental or physical condition that prevents the child from earning a living wage. Additionally, the court should look to see whether an order of continued support would result in undue hardship on the parents.

In Kotzbauer, 2007 Pa.Super.357 (2007), a Father appealed a support order regarding his then nineteen year old daughter. The daughter had recently been diagnosed with epilepsy which led to seizures, brain malformations and migraine headaches several times a week. While she had a driver’s license, attended community college and had a part-time job, ultimately the trial court held that the evidence presented still established she was unable to support herself. She had poor grades in school due to an inability to focus, often missed work or left early, and relied on her Mother to keep up with all her prescriptions, medical appointments, food, clothing and housing. The majority of states recognize an on-going duty of support if adult children are unable to support themselves due to a demonstrable physical or mental condition impacting their ability to earn a supporting wage.

Click here to read more about support awards.

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What to wear to Family Court

What you wear to Family Court is less important than how you act when you are there. That being said, however, it is important that you give the Court the respect it deserves. Do not show up wearing flip flops, tank tops, shorty shorts, beat up jeans, sneakers. Whether you have a conference or you have a hearing before the Judge in a Courtroom, you should dress like you were going to Church back in the day when people dressed appropriately for Church. If you have tattoos, cover them up. If you have piercing or gage earrings, take them out. Since Family Court is often based on subjective opinions, it is best to not give any reason to the Court to side against you, whether they do so consciously or not.

For either gender,  wear business casual clothes to court. You do not have to wear a suit and a tie unless that is how you typically dress for work. Make sure you are groomed and do not look like you just rolled out of bed. If you take the time to dress better and look better, it will put you in a better frame of mind to be prepared to settle or win your case.

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Divorce and When to get the House Appraised

If you are getting divorced and own a home, the value of the home is considered for purposes of equitable distribution. If the home was owned by you prior to the marriage and remained in your name alone, the increase in value of the home from the date of the marriage until the date of separation is considered marital. In this case, you should get two appraisals done on your house, one from the date of the marriage and one as of the date of separation.

If you received the home as an inheritance, you will need the values of the home as of the date of gift to you and as of the date of separation if you kept the home in separate names. Since inherited assets are non-marital, as long as they are kept separate, only the increase in value of the asset from the date received to the date of separation is considered. You again will need two appraisals to reflect these dates.

If, however, you own a home that was purchased during the marriage, you will want to delay getting the house appraised until you are either ready to sign an agreement or go to a divorce hearing. In Pennsylvania, the Court values the home as of the date of distribution so by getting an appraisal close to the date of your divorce hearing gives the most accurate value. If you get the house appraised too early, you may end up having to pay to have it appraised again.

If you own a home that was premarital or inherited, but you added your spouse’s name to the deed, you will want to get an appraisal at the time you married or received the asset, at the time you gifted it to the marriage and at the time of distribution.

When you get your house appraised, you may want to also consider whether you need to also get a fair rental value of the house included in the appraisal. If the house has no mortgage or a very low mortgage and you are not living in the house, you should get the fair rental of the house established in your appraisal so that you can make a claim for this value in equitable distribution.

It is also important to remember that you do not need an appraisal done if both you and your spouse are able to agree to the value of the home. You may also want to use a Comparative Sales Analysis in an effort to come to an agreed price.

If you are having trouble getting access to the home to have it appraised, there are remedies and you can file Special Relief with the Court in divorce in order to gain access for purposes of an appraisal. In that instance, you should consult with an attorney.

For more information see:/Family-Law-Divorce/Division-of-Marital-Property/

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Dating During and After the Divorce

When you are going through a divorce, you may wonder whether you should be dating and if you do how it will impact your case. Once you are separated, even though the divorce is not yet final, you are permitted to date without it being considered grounds for adultery in the legal arena. While adultery is a factor in the consideration of an award of alimony, it refers to relationships that began prior to a separation not after. Once a divorce complaint is filed you are clearly separated and for some that may now involve the choice to date. If you are entitled to support or alimony, you may date both during the divorce or afterwards. As long as you do not cohabitate, it will not affect your alimony award. Cohabitation can be found even if the other person has their own residence if they spend significant overnights with you.

Whether you choose to date during or after the divorce is a personal choice. It is also a personal choice as to whether you want to disclose it to your former spouse. Sometimes it may help your former spouse accept that the relationship is over and in other cases it may add such fuel to the fire that it makes an amicable settlement impossible. In the latter case, you may want to wait until the divorce is final. If you have children with your former spouse, you should consider disclosing it to them at the point that you are ready to introduce your children to that person. Oftentimes, this is where conflict occurs. It is only natural for your spouse to have concerns about some third party around their children that they do not know, especially if this person is going to spend significant time with your children. If you really want avoid litigation in custody, you may want to provide as much information or even an introduction to your former spouse depending on the circumstances in order to avoid unnecessary litigation in custody. If you consider how you would want to be treated if you were in the situation, it may help to guide you in how to approach the situation with your former spouse.

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When a Parent withholds custody

As detrimental as it is to the children of a separation or a divorce, sometimes one parent chooses to withhold the children from the other parent. They may feel they are the better parent and are protecting the children. They may just be angry and want to use the children as pawns to get back at the other parent. They may feel they have the right to determine the custody schedule for various reasons. Regardless of why a parent is withholding the children and keeping them from the other parent it is not something that either parent should take into their own hands. If you are the parent who is not seeing your children, you need to immediately file for emergency custody in the county where the children reside if they have been there for at least six months. If the children have not bee in that state or county for six months, then you need to file emergency relief in the state or county where they last resided for six months. If your ex moved out of state with the children less than six months prior, you will want to also seek relief that includes returning the children to the state, and possibly alerting the authorities if the other parent did not disclose their whereabouts. Waiting to file with the court can impact your case as the court will question why something was not done sooner. In addition, you should record all attempts that you make to contact the children both before and after you file. This could be text messages, letters sent to the house, phone calls made, and attempts to visit. You should be careful, however, in remaining calm as sometimes the other parent will then allege harassment or file a Protection from Abuse in an attempt to further gain control in custody. As difficult as it will be waiting to get into court, the sooner you file the sooner the court can remedy the situation.

If you are parent withholding, you should very careful that there is a legitimate reason which usually is only in the event the child is in serious physical bodily harm. In the event that you have chosen to withhold, the court will look at attempts to alienate the other parent as a factor in deciding to whom to award custody. If you feel your child is being abused, you should contact the Child Service Protective agency in your area to conduct an investigation as well as quickly file your petition for custody. Withholding out of spite or under the belief that you are the better parent can not only have serious consequences in the custody schedule that ultimately gets decided but can do serious damage to your children. Children should never be placed in the center of a custody dispute. The Courts favor a relationship with both parents, and in circumstances where it is warranted will place one parent under supervision.

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What happens if I don’t want a divorce?

Pennsylvania has two no-fault grounds for divorce. One is where both parties consent after 90 days of one being served the complaint and the other is where one party does not consent and the other party moves the divorce forward after a two year separation. If your spouse wants a divorce and you do not want a divorce, ultimately, unless they change their mind, they will be granted a divorce. Even if you have children and you contest that it is not in the best interest of the children, if your spouse does not wish to be married anymore, ultimately, the court will grant a divorce. You can delay the divorce by not consenting to the divorce. This will force your spouse to wait the two year period from when you separated before they can move the divorce forward. Even at that point, you can still contest that it is not irretrievably broken or that the two year separation has not occurred. You can say discovery is not completed and further delay the divorce or file an appeal. While there are many ways that a divorce can be delayed, ultimately, it will become final if one of the parties wants a divorce. The day will come when the marriage will end. While you may not want a divorce, you should weigh the benefits of delaying it against the costs. Unless you really think there is a chance of reconciliation if you delay it, or you benefit financially for health insurance purposes, sometimes, moving on quicker and accepting the ultimate outcome is better. It enables you to heal quicker and create a life that does not involve the pain and emotional turmoil that a drawn out divorce creates. It also may be financially better to have the finality and save in extended legal fees. Finally, it may also make it possible to move on to a different relationship with your ex-spouse where you are able to maintain a civil relationship verus one filled with resentment for keeping them in a marriage that they no longer desire.

For more information, see:/Family-Law-Divorce/Grounds-for-Divorce/

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Child Support and Child Custody in a PFA order

Under the Protection from Abuse Act, a Court can, as part of the order granting a protection from abuse, also issue terms on custody of the minor children as part of that order.A Protection from Abuse order can be granted in Pennsylvania for up to three years. If an order includes a provision for custody, this does not mean that the other parent will not get to see the children for three years. If an order is entered that contains custody provisions, it is very important if the order is entered against you that you file for custody through the Family Court in the county where the Child resides. The Court in Family Court will determine custody and the terms of that custody order will override the terms in the Protection from Abuse Order. Likewise, if you receive a Child Support order as part of a Protection from Abuse Order, you must file for child support within two weeks in order to continue to receive child support. You file for child support at Domestic Relations. As long as you file for child support within the two week period, you will continue to receive support under the PFA order until Domestic Relations has its hearing and enters a new child support order. If you fail to file in the two week period then the child support in the PFA will terminate and you will not get support until you file and have a hearing through Domestic Relations.

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Married Same-Sex Adoption

Today marked the completion of my first same-sex step-parent adoption. Prior to May 2014, a same sex couple had to follow the steps for second-parent adoption which required a home study as opposed to a step-parent adoption which did not. However, in a decision rendered May 20, 2014, the Honorable John E. Jones, III, sitting for the US District Court in the Middle District on the case of Whitewood v. Michael Wolf, ruled that two of Pennsylvania’s laws regarding marriage were unconstitutional on the basis that they violated the Due Process and Equal Protection clauses of the Fourteenth amendment. Now that Pennsylvania recognizes same-sex marriages, same-sex partners can also benefit from the simpler process of a kinship or step-parent adoption.

The adoption hearings are the final confirmation that all requirements for an adoption have been met. The adopting parents should indicate during the hearing their understanding of the responsibility they are taking on as parents. A sample colloquy is included below. Hopefully, many newlywed same-sex couples in Pennsylvania will be able to take advantage of this easier path to adoption.

Do you understand if this Court permits the adoption, both you and this child will have all of the legal rights and duties between a parent and child that the law provides for natural born children? Do you understand, for example, these rights and duties include: (A) the right of the child to inherit through you and your family (B) your legal obligation to financially support this child (C) the right of the child to seek support from you (D) do you understand these rights and duties would continue if you and your spouse separate or divorce (E) do you understand these rights and duties would continue if the child develops any physical, psychological problems or becomes ill or disabled for any reason in the future

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