Kinship Adoptions

Some of the statutory requirements for adoption are waived in the case of a family member adopting a child. A standard adoption will require a home study to be completed by the local Children & Youth services agency. This process is expensive and takes a number of months. This requirement is waived in the event of an adoption of a stepchild, grandchild, brother, sister, niece or nephew by blood, marriage, or prior adoption. Now that Pennsylvania recognizes same-sex marriages, same-sex partners can also benefit from this provision.

In a kinship adoption background checks must still be completed as it relates to the adopting parent(s). Presently, there are three background checks required: (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare. If the natural parents are consenting to the adoption, their consents can be attached to the Petition for Adoption. This should be at least thirty (30) days after the consents are signed since there is a thirty (30) day revocation period. Alternatively, if lacking written consents, grounds for involuntary termination can be addressed with the petition. Following successful completion of all the pre-requisites and filing of the Petition for Adoption, the final step is the adoption hearing. Generally, the hearing is just a matter of ceremony and a happy occasion for the adopting parents.

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Another Approach to Divorce – Collaborative Law

When getting divorced, there are several different approaches that a couple can choose. Some people opt for mediation to try to resolve their disputes and save them money. Others, take the traditional approach and opt for attorneys to handle everything. There is another approach that is less known but can be quite effective – collaborative law. Collaborative law, unlike mediation, involves two attorneys similar to the traditional approach. What makes collaborative law different, however, is that both spouses agree from day one that they want to settle everything out of court. They formalize this agreement in writing with their attorneys wherein they agree that they will make any and all efforts to resolve their issues involving divorce, custody, and support out of court. While they always reserve the option to go to court if they cannot reach an agreement, there is a hefty price to pay – loss of representation by both side’s attorneys. Even if one party is still willing to work it out of court, both spouse’s and their attorneys agree that if one of the parties decides to litigate, both attorneys will withdraw from the case and both parties will have to start over with new attorneys.

This option is a great option for parties who are both committed to settling their differences out of court but want the benefit of having legal advice that mediation does not provide. When hiring an attorney, you should ask if they are willing to handle collaborative law cases if this is an option that appeals to both you and your spouse.

 

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Grounds to contest a will

Contesting a will in Pennsylvania is a very difficult process. The person contesting has the burden to show that the will is not valid.

The most common grounds for contesting a will are fraud, undue influence, forgery, lack of mental capacity, and failure to meet legal requirements.

Fraud: Was the decedent deceived into signing the will?

Undue influence: Was the decedent threatened or coerced into signing the will, when they otherwise wouldn’t have signed?

Forgery: Did someone other than the decedent sign the will?

Lack of Mental capacity: In order for a will to be valid, the decedent must understand what they are signing and be aware of what assets and property they have. Did the decedent lack an understanding of what he or she was signing at the time of signing?

Failure to meet the legal requirements of a will: Was the will not properly signed? Are there pages missing or are additional pages added?

If you wish to contest a will, it is important to speak with an experienced attorney.

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Dividing a Pension in Divorce and the Survivor Annuity

Oftentimes when parties get divorce, one of the biggest assets that they have accumulated is the pension of one or both of the spouses. In a Pennsylvania divorce, the pension portion that accumulates during the marriage is what is considered marital. There may also be a non-marital portion for the years of service prior to the marriage or the years of service after the marriage. When getting divorced, there are two methods of getting each spouse their share of that pension. One method is to do a percentage distribution of the marital years. When this method is use, the spouse receives a percentage multiplied by the number of years married that the pension accumulated divided by the total number of years that the pension accumulated. This is usually distributed by a separate document called a Qualified Domestic Relations Order which is often paid to and drafted by a company or firms that handles QDROs. The other method of distribution, and the preferred method by the Court (according to case law) is an offset. Under this method, the marital portion of the pension is assigned a dollar value based on a report prepared by a company who does pension valuations. This dollar value of the pension can then be swapped with other marital assets as an offset.

One often overlooked part of a pension is the survivor annuity. If a party has a pension, then the party who has the pension is given the option at retirement to select from several different options upon their death. This could include no survivor, a 75% survivor, 50% survivor, etc. This survivor benefit election is important in that if no survivor is elected, the one spouse will receive nothing upon death of the party who holds the pension. If a survivor benefit is elected, it reduces the monthly payment of both spouses when they receive the pension. Since only the spouse who will continue to receive the pension upon death of the pension holder will benefit, the surviving spouse has an asset known as the survivor benefit annuity which must be valued separate and apart from the principal of the pension. It is something that should be addressed at the time of divorce as once the pension is in pay status this election cannot be changed.

For additional information see: /Family-Law-Divorce/High-Income-Net-Worth-Divorce/Pensions-in-a-Divorce/

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Documents to bring to court: Landlords

Documents landlords should bring to court:

When you go to a landlord-tenant eviction hearing, you will need to bring several documents.

The lease is perhaps the most important document to provide. It is the instrument that shows how much rent is to be paid each month, when the rent is due, when the lease begins and ends, whether the landlord or tenant is responsible for certain amenities (such as electric, water, and cable), and other rules that govern the time of occupancy.

If you are a landlord seeking unpaid rent, it is important to provide a ledger showing how much money is owed.

If your tenant is stating that the rental unit is not habitable, bring proof that the place is in good working order, and that all requests for repairs have been remedied.

For landlords who provided a Notice to Quit (which is required unless waived in the lease), bring with you any documents showing that this notice was served.

If you are seeking to keep the security deposit, bring proof of any necessary repairs. This would include photos, estimates, or receipts. Witnesses should also be considered. Also bring proof that the security deposit has been returned, or an itemized list of necessary repairs was provided to the tenant within 30 days of vacating.

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Documents to bring to Court: Tenants

Documents tenants should bring to court:

When you go to a landlord-tenant eviction hearing, you will need to bring several documents.

The lease is perhaps the most important document to provide. It is the instrument that shows how much rent is to be paid each month, when the rent is due, when the lease begins and ends, whether the landlord or tenant is responsible for certain amenities (such as electric, water, and cable), and other rules that govern the time of occupancy.

If your landlord is seeking unpaid rent, bring receipts or bank statements showing that the rent was paid.

If your landlord is asking for cost of repairs, bring pictures showing that the rental unit was left in excellent condition will help your case.

If you believe that the rental unit is not habitable, bring proof of the unit’s condition as well as documentation (i.e. letters, text messages, emails) showing that you requested the landlord make repairs.

If your landlord is keeping the security deposit, he or she must provide the deposit or a list of repairs within 30 days. Bring photos or witnesses who can say that the place was left in the same condition as when you moved in. If you have proof that the notice was not served within 30 days, bring that evidence. For example, if you moved out on October 30 and the letter is postmarked December 2, then that would be evidence. Furthermore, bring proof that you gave a forwarding address to the landlord.

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How to Preserve Premarital Assets without a Prenuptial

If you are getting married and the idea of a prenuptial agreement puts a distaste in your mouth or that of your spouse, but you are still concerned about losing your premarital assets, there are a few things that you should and should not do if you get married without a prenuptial. Never add your spouse’s name to the house or bank account you had prior to marriage unless you are willing to gift this asset to the marriage. This is not to say that the house you own prior to your marriage will not be distributed in a divorce, but you can minimize the amount by keeping it separately deeded. The equity that you have when you get married will remain your asset should you get divorced. You should know what this value is when you get married by having the house appraised and keeping documentation on your mortgage balance at the time of your marriage. Without a prenuptial agreement, the increase in value during the marriage will become marital, whether or not you add your spouse to the deed or title of your account. If you have a mortgage and pay it off during the marriage, you will be accumulating marital equity even if the house does not go up value. In addition, if you have any bank accounts, you will want to keep the funds that you had going into the marriage in your separate name.

Once you start putting your premarital assets into a joint account, they become a gift to a marriage. This means that if you get divorced and have no prenuptial agreement, the Court will have to decide how to distribute this asset if you cannot agree. If you are in Bucks County, the court will normally apply a diminishing credit value meaning for every year that it was transferred into joint names, 1/20 of the asset will be considered as marital and you can seek a credit for the balance. After 20 years, you will get no credit for the premarital asset you contributed to joint names. When you start gifting your premarital assets to the marriage without a prenuptial in place, you should be very careful to document both the amount of your contribution and the source of funds. This way, if you do end up in a divorce, you will be better prepared to argue for the diminishing credit if you are in Bucks County or a more equitable share of the asset.

For more information on prenuptials, see /Family-Law-Divorce/Prenuptial-Agreements/

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Disabled? Unemployed? When to Modify your Support Order

Whether you are receiving or support, it’s important that if you become disabled, or end up on unemployment, even temporarily, that you file to modify your support. Just because you are out of work, or undergo surgery, does not mean that you can explain it all later to the Court. Nor does it mean that your support will not be due. You need to file to either lower or stop your support if you are paying during the period of time you are disabled or out of work. Otherwise, if you do nothing, the amount you were ordered to pay will continue to charge against you and you could find yourself in contempt if it is not paid. If you are the one receiving support and you become disabled, or suddenly lose your job and are on unemployment, you need to file in order to see if you can get an increase in support temporarily while you are out. If you are unable to file yourself, it may be a good idea to give someone you trust a Power of Attorney to file on your behalf.
Support is modifiable whenever there is a change in circumstances. It does not always have to be due to a disability or unemployment. Whenever there is a change income or any of the factors that play into a support order such as child care expenses, health insurance expenses, etc. you may need to go back to court have your support order recalculated. If you think you may have a change in circumstance that warrants a modification, always consult with an attorney.

For more information, please see:/Family-Law-Divorce/Child-Support/

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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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