Planning foreign travel with children when separated

If you are separated and plan to travel out of state with your child, you will need to make sure that you have a passport and that you have permission from the court. In order to obtain a passport you will need consent from both parents and signatures. If your custody order does not provide for travel out of the country which most do not, then you will need to also obtain consent from the other parent in writing with specifics on the travel or you will need to obtain permission from the court if the other parent objects. In most instances when a parent objects to out of the country travel, the parent wanting to travel will have to establish the necessity and that it is in the best interests of the child. Oftentimes, the court errs on the side of caution and denies the request. Taking a child out of the country imposes many risks when parents are separated, depending on which country you intend to travel. These risks include the difficulty of enforcing a custody order should a parent decide to not return with the child. Oftentimes the court will look to see if the country is part of the Hague Convention which means that the country has signed on to enforce foreign custody orders. Even if they are part of the Hague Convention is not a guarantee for a speedy return of child. Research should be done on each country prior to traveling to see how they have treated United States custody orders. Other risks in travel include diseases, instability of a country, and requirement for certain vaccinations. If you plan to travel with a child and are separated, you will need to plan well in advance in case you need to go to court to seek permission.

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Date of Separation in a Divorce

When you get divorced in PA, the date of your separation is no later than the date that a divorce is filed. It can be earlier but the burden will upon the party seeking an earlier date to establish it with evidence should the other spouse contest it. The date of separation is an important date when it comes to determining what is an asset and what is a debt. Assets and debts accumulated up until the date are marital. This means if you file for divorce or separate you will want to know what the balances are on your debt at that time. It does not matter whose name the debt or asset is in. If your spouse has credit cards, even if you did not know about them during the marriage and they can produce statements showing a credit card balance on the date of separation, it gets included. If you think your retirement is your own, again you will be mistaken. Retirement assets up until the date of separation are marital assets even if they are only in one person’s name. There are exceptions on some assets that are passive such as a house where the value is determined as of the date of distribution. Much money and time is spent in a divorce figuring out what the assets and debts are and what the balances are. It is a good idea to keep records, when you marry, when you separate and each month after you separate. It will save much time and much money to stay organized.

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Child Support and why your neighbor and sister get a different amount than you

/Family-Law-Divorce/Child-Support/Oftentimes when people get separated or are going through a divorce, they like to consult their

friends and family who have gone through a similar situation for advice and what to expect. While it is a good idea to seek support from friends and family who can understand and relate to your situation, sometimes, it can be misleading as to what to expect. Every state has different rules on what factors they consider in determining support and how long and under what circumstances you will get support. The court might consider all the time your sister’s ex has custody of his child when determining how much the support number will be for child support but in Pennsylvania they really only care if it reaches at least 40% of the time. Unfortunately, this is why parents oftentimes will seek a custody order that gives the other parent just shy of this percentage since it means more money for them.

Also, you may have a neighbor who has one child and you find out how much your neighbor gets in child support and expect your amount will be the same. Child support, however, is based on household income, meaning, if your neighbor and her ex make more than you make and your ex combined, she is going to have a higher support order than you do most likely. Support is based on guidelines in PA which are based on household incomes. The parent who has custody of the child or children is the one who is entitled to support. If that parent earns more than the parent without custody, their support order will be lower than they would pay if they did not have custody. It is in proportion to the household income. There are also other factors that get considered such as child care, cost of health insurance, and extraordinary expenses that also get factored into support and can drastically affect the number.

While it is great to go to your friend or family for support and maybe even learn about where to file, how long you might have to wait and other issues, when it comes to figuring out the amount you can expect in support, it is best to consult a professional and also to consult the guidelines.

/Family-Law-Divorce/Child-Support/

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Reasons to consider a Prenuptial Agreement

If you are getting married, you may want to consider a prenuptial agreement before you tie the knot.  A prenuptial agreement is not necessary in every situation, but is very useful to avoid conflict in certain situations.  It is not always just for divorce.  You may want to use it to allow you to decide how your assets will be distributed in the event of death rather than have your spouse be entitled to their elective share.  

A prenuptial agreement allows you to predetermine in the even of death or divorce how some or all of your assets will be distributed.  In the case of death, you will also need a will.  Some situations where it is very useful to have a prenuptial agreement are when you have children from a prior relationship, a closely held business, or assets accumulated prior to the marriage.   Even if none of those apply, you can still use it to help you save the expense of protracted litigation in the event of a divorce.

For more information on prenuptial agreements, please click here:/Family-Law-Divorce/Prenuptial-Agreements/

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Disestablishing Paternity

It is difficult to avoid the obligations that come with parenting a child. Paternity can be established in a number of ways including by acknowledgment, by genetic testing, or by estoppel. Once an acknowledgment of paternity is signed, it is very difficult for a father to then try to allege the child is not his. An acknowledgment acts as conclusive evidence that the person who signed the acknowledgment is in fact the father of any subject child(ren). A court order on paternity will follow if the genetic test results indicate 99% probability of paternity. Paternity by estoppel recognizes a man as the father based on his role in the child’s life rather than the biological connection.

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, in K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012), Husband, though he had supported the child, acted as a father figure and was married to Wife at the time of birth, submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated. The establishment of paternity imposes the policies of the Uniform Parentage Act including strict liability for child support. In Wallis v. Smith, 22 P.3d 682 (2001), Father tried to avoid his support obligation on the basis that Mother had committed contraceptive fraud. In other words, the parties had an agreement that Mother would be responsible for birth control and subsequently stopped taking the birth control without alerting Father. The courts refused to relieve Father of his support obligation despite the parties’ alleged agreement. No state recognizes contraceptive fraud or failure to accurately practice birth control as a defense to child support.

Click here to read more on child support.

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Protection from Abuse Claims in Bucks County, PA

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Today is PFA day in Bucks County, PA. Historically, it was evident by the overcrowded and flowing areas of the courthouse. PFAs will now be heard in the new Bucks County Justice Center, but somehow that will not change the fact that is one of the most crowded days in court. A Protection from Abuse starts as a civil action where one person who must meet the relationship requirement under the PFA statute files and accuses another person of abuse, usually physical, but can include stalking, harassment. If you are a Petitioner in Bucks County, you have options to help you file that include a free service offered through the Women’s Place or through Legal Aid. Not only will they assist you with filing your claim, they will also represent you or assign you an attorney in court. They will have someone also accompany you to court so you do not have to go alone and this person will provide support to you. You also have the option of hiring a private attorney who will be devoted exclusively to your case that day. They can assist you by preparing your petition and making sure all the necessary facts are set forth in your petition. You can ask for protection for up to three years and this protection can include absolutely no contact to restricted contact if you have children. While the court can award custody and support as part of a PFA, you should file both those actions separately as well, especially support which will lapse if you do not file for it.

If you are accused of a PFA in Bucks County, PA, you will be served with a Petition setting forth the allegations. Sometimes you will not be served until the night before. One thing is evident, you will have less than a week’s notice to prepare and defend yourself. If you arrive to Court without an attorney, the Bucks County Bar Association will have volunteer defense attorneys ready to assist you in your defense. They will have several cases, not just yours and they will not contact you until the day of the hearing. You have the option of hiring a private attorney to assist you in your defense as well. This attorney, while paid, will be devoted exclusively to your case and will meet with you and talk to you before you court date learning the facts of your case.

While it is true that a Protection from Abuse is a civil action, meaning if the court finds you guilty or you agree without guilt to an order, you are not going to jail. Some people are of the thought that since they do not want to talk to the other side anyway, it may be a good idea to just agree to a stay away order. In my opinion, that can be a very serious mistake. An agreed order has the same enforcement remedies as an order entered after a trial. While a Protection from Abuse is a very necessary remedy for people who are harassed, it is also a very abused area of the law. Oftentimes, skilled petitioners use it to gain leverage in a custody matter or use it for vindictiveness. Having a private attorney will help you sort this out to the Judge who is aware and looks for these motives. In those cases, it would be a mistake to agree thinking it is only civil. The reality is that any violation of a Protection from Abuse order becomes a criminal matter. It is also a public record and can affect your rights to possess a weapon during the period of time you are under an order. Depending on your job, it can also affect your security clearance. If you are foreigner, it can lead to deportation. Before you agree to anything, you need to understand all the ramifications that could occur.

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Handling Custody during bad weather/sickness, use common sense

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Oftentimes when you have a custody agreement, your agreement or order spells out specific times and meeting places for custody exchanges. Even the best crafted custody agreement, however, does not contemplate every situation that possibly could arise.  In these circumstances, you must often make a judgement call.  For example, if your child is burning up with a fever, it may not be in the best interest of your child to insist that they return to you for your designated custodial time.  You may want to consider your child and let them rest until they are up for travel.  With winter upon us, you may also find yourself required by your custody order to exchange your child in the middle of a snowstorm, or worse, blizzard.  Again, you should use your best judgement in deciding whether to follow the custody agreement.  This is why it is very important that parents be able to communicate with each other.  Oftentimes, you will need to make accommodations for the other parent.  You cannot expect a custody agreement or court order to resolve every possible scenario.  

For those parents with an ex who threatens the police or court if the custody agreement is not followed when one of these emergency circumstances arise, I would suggest that you still exercise your best judgement.  As long as it is a true emergency and you are no abusing the system and alleging your child is sick when in fact that are perfectly fine, it is not likely that you will be found in contempt but be prepared to prove it just in case. Take a photo of your child’s temperature, get a copy of the weather report for your area.  Always put the safety of your child and well being of your child first in an emergency circumstance.  That being said, it may be a good idea if the other parent misses time due to snow or an illness that you offer make up time.  The more you give, the more you get.  Mother nature does not play favorites and it could easily happen on your time.

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Why you should file a counterclaim in custody

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If you are one of the many families who are facing custody issues and you find that your ex has file a petition for custody or a petition to modify your current order, you should consider filing a counterclaim for custody. While it is true that you do not have to file an answer or a counterclaim in order for the court to decide a schedule, what happens if your ex suddenly withdraws their petition the day of the hearing?  If you do not have a counterclaim filed, then the Court will cancel the hearing since there will be no petition to hear. While this is fine if you do not want a change, it may not be so great if you were expecting to raise issues on why you need an order or why you want a change, this is not such good news. In order to prevent this from happening, you should always file a counterclaim on custody. That way, if your ex does decide to withdraw the petition filed, the Court will have to hear the case unless you also withdraw your petition.

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Non-Marital Families

The courts may recognize certain rights in relationships other than marriage. Palimony is the term for legal property and support rights arising from co-habitation. Co-habitation is not necessarily required for a palimony claim so long as there is a marital-like relationship. The default rule is that title controls ownership in the absence of a written document stating otherwise. However, the courts may recognize certain equitable doctrines to achieve fairness even if strict adherence to the written document would produce a different result. One cause of action is a constructive trust through the theory of unjust enrichment. The crux of the theory is that it would be unfair to allow the person that doesn’t have title to be excluded from the wealth they helped create.

Another equitable doctrine is quantum meruit. This doctrine posits that each party should get what they deserve. To be successful, the parties must establish that there was a reasonable expectation of receiving a benefit from the relationship. For example, a promise to support, expressed or implied, could be the subject of a quantum meruit claim. As a matter of policy, certain courts are reluctant to award any rights in non-marital relationships with the belief that it undermines the institution of marriage.

Click here to read more on rights of unmarried parties.

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Putative Spouse Doctrine

The putative spouse doctrine provides an equitable remedy where one or both spouses believed in good faith they were married and subsequently discovered the marriage wasn’t valid. The spouse that is unaware of any impediment to the marriage is the putative spouse. The equitable remedy provided more or less mirrors the relief that would be available if the parties were divorcing from a valid marriage. The purpose of the doctrine is to protect those who have an honest belief that they are married from being denied the economic and/or status related benefits of marriage including potential property division and support.

The doctrine is recognized in many states across the country as long as the key elements are met. First, there must be a proper marriage ceremony. Second, one or both parties must have a good faith belief the marriage is valid. Good faith is defined as an honest and reasonable belief. If either spouse receives information concerning the validity of the marriage, they have a duty to investigate further.

Click here to read more on division of property.

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