Tips for Keeping Divorce Costs Down

1. Understand that family lawyers charge based on their time. This includes time reading emails, talking to you and anything else related to your case. Sending daily emails or calling constantly to talk about your case is a surefire way to escalate your bill. Instead, keep a journal of your thoughts and schedule one block of time to go over all your issues with your attorney and be sure to engage a private therapist or good friend if most of your conversation is related to emotional struggles instead of legal issues.

2. Weigh the cost of what you hope to gain against what you will have to spend to get that amount. Consider that in support matters, oftentimes, it may not make sense to hire a lawyer to fight over $ 100 difference between what you hope to get and what you spouse would agree to pay. You need to balance the cost of legal fees against the amount of money you hope to gain order to assess whether it is worth the litigation in the financial areas. This applies to support as well as the divorce issues.

3. Gather your own financial records and get organized. You can save money if you are organized and gather your own records that are needed for your divorce. Make sure you have current statements and statements from separation on all your accounts, including retirement accounts, contributions during separation, mortgage statements, credit card statements, etc. and present them to your lawyer in an orderly fashion and you will not only save the money having to have your lawyer gather this for you, but you will be in a better position to possibly settle your case out of court.

4. Consider Mediation. Even if you have an attorney, you are still able to mediate your conflicts if both parties agree. Even if you are unable to come to a global settlement, you can usually narrow down your issues in dispute which will in the long run save both time and money.

5. Understand that your emotional pain has no correlation to what you will receive. Unlike a personal injury claim where you are compensated for pain and suffering, the divorce laws are not structured to compensate you for you pain or hurt. Understanding the factors involved in dividing your assets are based on economic factors rather than emotional factors may help you set realistic expectations and help keep the costs down.

For more information, see: /Family-Law-Divorce/Bucks-County-Divorce/

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Five Mistakes to Avoid in a Child Custody Case

1. Allowing your new spouse to act as the go-between with other the other parent. In a custody situation is it important that the parents communicate with each other. Your new spouse or significant other should not be the one to handle all the affairs of your child. It is important as a parent to show that you are involved with your child.

2. Withholding the children unless they are being seriously abused. It is always a bad idea to take unilateral action and instead allow the courts to decide what contact is necessary. Withholding children without a very valid reason will end up as a factor against that parent in a custody proceeding.

3. Making unilateral decisions about the child without the other parent. In most cases, parents have joint legal custody and both parents are entitled to attend doctor’s appointments, make health care decisions, decide on schooling for the child. Withdrawing a child from school without consent of the other parent will often result in contempt. Not working with the other parent to schedule doctor appointments they can both attend can also result in contempt and can harm a parent in a custody dispute.

4. Posting photos on Face book that can be used against you. Be careful what you post on the Internet as it can come into play in a custody case.

5. Keeping the children from grandparents. If you exclude grandparents completely, oftentimes you will end up with additional litigation. Grandparents have rights and can bring their own action for visitation.

For more information see: /Family-Law-Divorce/Child-Custody-Visitation/

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Changing the Locks during a divorce

Sometimes the first action in a separation or divorce is when a spouse moves out. When a spouse moves out of the house, oftentimes the spouse who remains changes the locks. This is something that you can do, however, it is not always assurance that they will not get back into the home unless their exit was the result of a Protection from Abuse. Until you have an exclusive possession order signed by a Judge during your divorce, a spouse could legally gain entry to the home by breaking a window or any other method. In order to get an exclusive possession order, you would have to file a Petition for Special Relief and ask that Court to enter an order while the divorce is pending to award you the home. If your spouse left and has another residence that he/she has established, it is very probable that the court will award you the right to live in the home and your spouse will not be allowed in at that point without your consent. Once you have that Order from the Court, you can be assured that a violation of that Order will result in Contempt of Court. If you are the spouse who left, until that Order is entered by the Court, you can usually move back into the house if you change your mind. Getting an Order in place is something to consider to eliminate unexpected surprises.

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Remedies for the landlord

The most important thing that a landlord can get after an eviction hearing is the property itself. After a hearing, the tenant has 10 days to appeal, or else the landlord may request (and pay for) an Order for Possession. 10 days after that, the sheriff/constable will come and evict the tenant.

In addition to the physical property, the landlord can get past-due rent, late fees, and other unpaid bills (such as utilities and water, if they are the tenant’s responsibilities). Furthermore, the landlord is entitled to filing fees as well as the fees paid for the Order for Possession. There may also be a provision in the lease that states that the tenant is responsible for rent for the entire duration of the lease.

If the lease permits, then the landlord is also entitled to reasonable legal fees. However, not all leases allow for this, so it is important to read the lease in its entirety.

The landlord may also sue the tenant for damages, other than normal wear and tear, caused to the premises during the tenancy. Make sure to take photos, obtain estimates for repairs, and keep receipts.

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Typical landlord/tenant fees

To file a landlord/tenant eviction, you must pay the court’s filing fees. The fees are based on several factors: the number of defendants, amount seeking in damages (i.e. unpaid rent, destruction of property, legal fees), where you are filing (i.e. Bucks County vs. Philadelphia county).

Many leases provide for the landlord to receive legal fees if successful. Unless the lease states this, each party will be responsible for their own legal fees even if they prevail. The legal fees awarded is at the judge’s discretion.

Some attorneys charge a flat fee for representation, while others charge per hour. The advantage to a flat rate is that the party knows the fee up-front, whereas the hourly charge could depend on the length of trial and amount of time needed for preparation. Court itself can be as short as 15 minutes to several hours. This is determined on the complexity of the issues and whether the tenants have any defenses.

Finally, if a landlord is successful in obtaining an eviction, they must pay for the sheriff/constable to serve the Order of Possession. This will then enable the sheriff to forcibly remove the tenant if he refuses to leave on his own.

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Should you have a will?

Many people ask me if a will is necessary for them. They believe that they’re too young, or they don’t have enough assets, or they can’t decide who gets their estate when they pass away. A will is important for anyone. I recommend setting up a will as early as possible. A will is always modifiable as long as you are competent to make changes so it’s not a problem if you change your mind. It is also recommended that you periodically review your wills to make sure that the terms have not changed. You should also modify your will whenever a significant event occurs in your life (i.e. marriage, divorce, birth of a child).

Wills give you the ability to determine your executor (the person handling the estate) as well as trustees and guardians of minors.

Without a will, your estate is divided pursuant to your state’s intestacy statutes. In Pennsylvania, if you have a spouse and children (all of whom are also the children of your spouse), then the spouse keeps the first $30,000 and then gets half of the remainder. If the children are not your spouse’s, then the spouse only gets half, with the children retaining the rest. The law is complex so it is best to consult with an attorney. With a will, you get to choose which beneficiaries will get to inherit, and what their respective shares are. Furthermore, you can give specific bequests, such as vehicles, jewelry, family heirlooms, and specific cash gifts to your heirs.

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Theories on Property Division

There are two different theories on how title to property may affect the division of the property at the time of divorce. The title theory looks at which spouse holds title to each asset. There are multiple forms of title. Sole title grants the unilateral power to control. Examples of assets that may be relevant in divorce that are solely titled include retirement accounts, individual bank accounts, and vehicles. The remaining forms of title often apply to real property. Tenancy in common is the co-possession of an entire asset where each party has a ½ interest. Joint tenancy with right of survivorship is also co-possession of an entire asset with the condition that the surviving party will receive sole possession upon death of the other party. Each party can potentially transfer their interest during their lifetime. Finally, tenancy by entireties is similar to joint tenancy with right of survivorship but can only exist between spouses and any transfer of the interest can only occur with consent of the other spouse. Most states prefer the title theory. Equitable distribution is the method for property division under this theory.

The other theory in property division is community property. Under this theory each spouse has a present, vested ½ interest in all property acquired during the marriage. This results in an equal distribution of the property and is the minority view. Regardless of the theory utilized, the process of dividing property involves three steps. First, all the assets must be identified and classified as either marital or separate. There is a presumption that if the asset was acquired during the marriage it is marital. Second, each marital asset should be valued. Finally, all assets should be distributed either equitably or equally, depending on the property division theory being utilized. Both Pennsylvania and New Jersey divide property by method of equitable distribution.

Click here to read more on equitable distribution.

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My spouse left me, why do I now have to pay the mortgage?

If you are getting a divorce in Pennsylvania, oftentimes the court will require the occupant of the marital home to pay the mortgage. It does not matter whose name is on the mortgage. The theory behind requiring the occupant to pay the mortgage is that only that person is receiving a benefit for use of the home. Consider it fair rental value. The court will normally impose a support obligation on the spouse to pay you if they earn more and you have been married for at least a few years. If you have children with your spouse, you can seek a mortgage contribution as part of child support if they children remain the home with you. The mortgage contribution, however, is never going to be equal to the mortgage, nor is it even half of the mortgage. In some cases, you will not even get a mortgage contribution if your income and the child support amount do not mathematically warrant it. It is also in the discretion of the Judge whether to even award it. If you cannot afford to pay the mortgage between the income you have and the support you receive from your spouse, it may be time to consider selling the home. If you fail to pay the mortgage while living in the house during a divorce, the Court can intervene and order it sold. It is a good idea if you are separating to consult an attorney who can assist you by figuring out approximately how much you can expect to receive. This not only helps in deciding if you can afford to stay in your home during a divorce but will also help you decide how much you can afford to live elsewhere if you have to move. The attorney can also provide you with the documented expectation of support in order to help you secure a rental if your income does not support it alone.

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Things to consider when selling your house during a divorce

When you sell your house during a divorce there are certain things that you should consider regarding equitable distribution:

1. Make sure that the house does not appear empty by removing the furniture. If buyers are aware you are going through a divorce, they may try to offer you less than your house is really worth. If possible, leave the furniture and photos on the walls. You can do a stipulation with your spouse on who gets what when you do sell and if you are not going to be living in the house you may want to get that done before you leave.

2. You may not agree with your spouse on the listing price or realtor. It is best to communicate with your spouse rather than have the court make these decisions for you. If you cannot agree on a realtor, one option the court likes is to submit three names to the court each and they will decide or you could do this between attorneys or a mediator. If you cannot agree on a listing price, you may want to defer to the realtor. You also may want to build in an agreement on dropping the price after a certain time has passed and how much you agree to drop it.

3. Keep receipts for repairs and always exchange estimates. If you make repairs to your house and you are getting divorced, you want to be sure to get credit for the repairs and reimbursed from the proceeds of the sale of the house. In order to do this, you need to make sure the repairs are necessary and agreed to before you pay for them. A good idea would be for each spouse to get estimates and agree in advance before the work is done as to what is getting reimbursed.

4. You may have an uncooperative spouse who refuses to market the house or make it available. Remember in a divorce that the Court can control and enforce the sale of the house and remedies against an uncooperative spouse could include giving Power of Attorney to one side only to control the sale, or even in some cases, eviction from the house of an uncooperative spouse.

5. You need to consider who will pay the mortgage, expenses and taxes while the house is up for sale. If the house is occupied, normally, the spouse who remains in the house is responsible for everything and this is not something reimbursed. If the house is unoccupied, these expenses can be imposed on both parties and you will want to keep receipts for everything to seek a credit in equitable distribution.

6. Make sure you have an agreement in place on disbursement of the proceeds when the sale is completed.

7. Remember if you work together with your spouse it will benefit both of you in getting the highest dollar value for your home and save you unnecessary legal fees.

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Divorcing and Preserving the Proceeds from the House Sale

If you are getting divorced and need to sell your house as part of the divorce process, it is important to keep your attorney informed. Oftentimes when you go to settlement, if you do not have an agreement in place, the proceeds will be split equally. As part of the divorce process, you can obtain a court order either through an agreement with the other spouse or through the court that preserves your proceeds until such time that an agreement on divorce is reached. In Pennsylvania, assets are distributed equitably, not equally. Usually the spouse who earns less money at the time of the divorce receives more than half the overall assets, although there are many factors that determine equitable distribution. If the parties can agree, it may be best to distribute equally that portion of the proceeds that are not in dispute and only hold the amount disputed in escrow or in joint names requiring two signatures. You should have this agreement or court order put in place prior to closing and if possible, prior to signing your agreement of sale.

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

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