Typical Child Custody Schedule for Holidays

In any childs custody case, it is best if the parties design their own custody schedule so that they have more control over the personal considerations in each of their families as well as to include some days that may not be considered an official holiday for court custody purposes. When, however, communication has broken down and it is not possible to come to an agreement even on holidays, the court will often in both New Jersey and Pennsylvania have a routine method of determining holidays. In some counties, it is a pre-printed holiday list that the parties will receive. In others, it is a generally conceived concept. In most cases, the court will alternate holidays on an odd year/even year basis rotating the holiday every year so both parents will have time alternating years. For some holidays, such as Christmas, the court will usually break the holiday into two parts. One parent will have Christmas Eve until Christmas Day and the other parent will have Christmas Day until the Day after and this will alternate each year to allow both parents the opportunity to have Christmas morning every other year.

Some of the holidays that the Court often does not include are Halloween, birthdays of the children and birthdays of the parents. They often do not consider July 4th into the next day or after fireworks. They do not consider the Memorial Day or Labor Day as a full weekend. They usually do not split Thanksgiving in half which is possible if the parties agree to share the day. This is why it is so important that parents work together to communicate and agree to holidays rather than have a court decide how to divide the holidays. Sometimes one parent works on holidays and it makes sense the other parent should have the children but if you do not come to an agreement, this is not likely to happen. It is best if you are going through custody, not only to work out a schedule for your children but to really think about how your families structure and celebrate the holidays to make it best for the children.

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Checklist to Include in a Divorce Agreement

If you are drafting a Property Settlement Agreement for divorce or having one drafted for you, consider including the following topics in your agreement:

1. House/other real estate: Be sure you indicate who will get to keep the house, when the deed gets transferred into their name, who is going to prepare the deed, who will pay any fees associated with the recording and transferring of the deed. In addition, be sure to indicate when the mortgage, home equity loan or any other debts against the house will be refinanced into the name of the spouse keeping the house and what happens if they cannot refinance. Will the house be sold? If so, who keeps the proceeds? Indicate what percentage of the proceeds the other spouse is getting in the refinance or sale or the set price. If the house has to be sold, who is going to pay for repairs? Who will maintain the expense of the home until it sells? You may have a host of other issues if the house sells such as the selling price, terms, etc.

2. Retirement Accounts/IRAs/Pensions: If you have retirement accounts, be sure to cover the percentage of the account the other party is receiving, if any, or the set amount in dollars and how it is to be calculated. Will you need a QDRO to provide for a tax fee transfer and if so, who will pay the cost to have it prepared? Certified by the Court? Is there a beneficiary or survivor benefit? If so, is the spouse going to be named or given a percentage and is there a value to this?

3. Savings Accounts, checking accounts: Have you closed all joint accounts? Have all accounts been fully disclosed? Who is going to keep what funds? Any credits due to the other?

4. Business: If one of the parties has a business, has it be valued? Who is paying for the valuation? If it is not valued, do you agree on the worth or understand you could have had it appraised?

5. Other Assets: Have all assets been addressed? There could be rewards dollars, airline mileage rewards, timeshares, stocks, bonds, investment accounts, stock options, etc. Be sure you cover every possible asset and who is keeping what asset.

6. Taxes: If taxes are being filed jointly, how will the refund or money owed be divided? Who is going to claim the children in future years? If any taxes are owed as a result of any distribution of assets, who is going to pay the taxes?

7. Debts: What debts of the marriage exist whether in joint or individual names, and who is paying what? What happens if one party files bankruptcy on a joint debt?

8. Alimony, APL, Spousal Support: Is it being paid and if so for how long and how much and to whom? Under what circumstances may it terminate early? Is it being waived?

9.Full Disclosure: Has there been a full and final disclosure of all marital assets? What happens if an asset is discovered after the agreement?

10. Future Breach of an Agreement: What happens in the future if one party breaches the terms of the agreement? Will attorney fees and costs be paid by the other side? Will you go to arbitration?

11. Custody and Child Support: Both custody and child support do not need to be in your property settlement agreement in order to get a divorce as they are separate remedies. Any provision in your agreement regarding support or custody will be modifiable. Since schools require a copy of your custody order, it really should be set forth in a separate document.

These are by no means all the points you should cover in your agreement, but these are essential. You may want to consult with an attorney to assist you in this process.

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

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Ways to Stay Connecting in Custody Cases

One of the sad realities of divorcing when you have children is that there will be times when they will not be with you, sometimes, large periods of time if you are the parent with partial custody or even when you share joint physical custody. Sometimes, grandparents are also faced with separation from grandchildren due to divorce, death of their adult child, or incarceration of their adult child. Although you cannot always be with your child or grandchild, there are things that you can do to ensure that you are still connected to their life on a regular basis.

One of the greatest outcomes of improved technology is the ability to communicate in real time by way of video conferencing. If you and your loved one has an iphone, you can facetime over your phone. This allows you to see the other person over your phone which provides as greater sense of connection. Just today, I was able to facetime with my sister who was on a mountain skiing and I was able to watch my six year old niece ski with her dad for the first time. Although I was miles away, I was able to witness this event at the time it was happening. How amazing is that? I realize that not everyone has an iphone or can afford an iphone. If you can, it is an incredible tool for staying connected. It is very easy to use, so much so that even my three year old son is able to pick up the phone and facetime with his grandmother without me doing anything. It may require a little bit of effort in placing a photo of the person next to their facetime number, but once it set up, it is ready to go.

Another option would be to SKYPE. This requires access to a computer on both ends and the program downloaded on each computer. This a popular way of videoconferencing in Europe and is equally valuable here. You can communicate by video with your loved one but you will have to coordinate so that you are both online at the same time.

If you are not able to communicate through video, you can stay connected through other ways such as text messaging, phone calls,  facebook, other social media applications, sending letters in the mail, showing up for public events that the child may be involved in.  These are the traditional ways of communicating and they work great as long as you put the effort in to staying connected.

There are many opportunities to connect if you make the effort. If the other parent is placing obstacles in your path, you may need to get the terms set forth in writing in a custody order as to your rights on using these means to stay connected. If you work together, you can, however, create an opportunity for both parents to be very involved and connected regardless of where the child physically lives.

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Living Together During Divorce

Sometimes when parties are divorcing, they continue to reside together under one roof while the divorce is pending. This can be the situation for many reasons. One reason may be that neither party has sufficient income to live on their own. It may be that all their funds are tied up into the house and they do not have a significant payment to put down on another residence. Sometimes, they both want to keep the house in the divorce. In others, it may be that neither wants to move out when there are children involved. Whatever the reason, it can be very difficult to live together while the you are divorcing and setting some ground rules may be in order.

When you have children and are in the process of divorce, it is best that you try to maintain a stable home environment for the children. Do not start dating and bringing your new partner into the home to visit while you are still living with your spouse. It can be confusing for the children and can lead to conflict. Likewise, do not bring other families into the home to live unless your spouse agrees. This can lead to an action in Special Relief to try to evict you and your unwanted guests. In addition, keep your arguments out of the earshot of the children. If you need to address things that stir emotions, put it in writing to your spouse or create a space in your home away from the children where you can go to talk.

Sometimes when you are living together while divorcing, it is not a bad idea to try to create a custody schedule if you have children. This allows you to test out what may work or not work in the future when you eventually do separate. It does not mean you have to leave or not see your children when you are in the home together but you may want to set up rules on responsibility for the children on particular nights and weekends, which may involve all the care for the children, from cooking, to dressing, feeding, bathing, etc. so you have a trial run before you actually physically separate.

Financially, many parties who live together while they are divorcing continue to manage their household expenses as they did when they were not divorcing. This seems to lead to less conflict in the home. You can still and should establish your own separate account so that any excess funds you generate from your own work can be deposited into that account. You may want to deposit your earnings in your separate account and transfer money into your household account to pay the bills. Any money you earn after separation that you keep separate will not be considered in the divorce. You definitely want to close joint credit cards unless they are used strictly to pay household expenses.

While it may not be ideal to be getting divorced and still living together, it can be easier when you set up rules that both parties follow.

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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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