Getting through child custody with gratitude

Child custody is one of divorce’s greatest challenges. When all is said and done and the assets are distributed and the divorce is final, there are still the children of divorce that forever tie you to the other parent. Whether your children are little or grown, there will be times when you will encounter the other parent whom you are no longer married to but have children and possibly grandchildren in common with after the divorce. This can be frequent during child custody. Oftentimes, when children are little, there remains hurt feelings, resentment, possibly jealously as the other parent moves on seemingly unscathed. It may be very difficult during these times to maintain the level of civility in child custody that is critical to raise happy, successful children of divorced parents. The last thing you may want to do is have to continue to parent with this other person that you no longer love, that you resent or that continues to undermine everything that you think is best. It takes acceptance of the fact that both parents are entitled to have a loving and caring relationship with their children after a divorce in order to provide the best for your children.

One important part of treating the other parent with the respect in child custody that is needed to raise healthy children that are not constantly in the middle of conflict is gratitude. Whether the other parent is in your opinion is a good parent or a worthless excuse for a human being in your eyes, it is helpful to look at it for what that person’s existence means to you. Had you never encountered the other parent, good or bad, for one night or many, that little child or children who mean the world to you would not exist. Their unique genetic combination is only the result of having had a relationship, however, brief the encounter, with the other parent. Take the other parent out of the equation from the start and your child would not exist. If every time you have conflict with the other parent and you can go to a place of gratitude for that person for having given you one of life’s greatest gifts, your child, it becomes much easier to deal with whatever conflict you have. As much as your love your friends and your current significant, remember it was this other parent who gave you life’s greatest gift. If you look at it from the perspective of your child, you may understand the importance of having both parents involved in the child’s life, no matter how great or how little. How many parents have a relative who may have done similar things as the other parent, but they find it acceptable to still love their relative while completely trying to eradicate the other parent from the child’s life for the same things? Oftentimes, parents think of custody from their own wants and needs rather than looking at it from their child’s best interest.When you come from a place a gratitude, it helps you to make decisions that are in your child’s best interest and helps reduce the conflict that can damage children.

For more information on custody visit: /Family-Law-Divorce/Child-Custody-Visitation/ 

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Dividing a Business in a Divorce

Oftentimes in a divorce, one of the assets that the family court in Pennsylvania must decide how to distribute is a business.  In most instances, the Court is not distributing or dividing the control of the business but rather the value. If the business is premarital, the increase in value during the marriage is considered for purposes of the divorce.  In order to determine the value of the business, the parties can either stipulate to the value or they will need what is known as a business valuation.  There are generally three different methods used to value a business and one method or a combination may be appropriate depending on the type of business.  If the spouse who does not control the assets needs to get a business valued, it may be necessary to petition the court during the course of the divorce to request the other spouse to advance the cost of the business valuation.  A business valuation is neither simple nor inexpensive.  

Due to the cost of a business valuation, some parties make the mistake and assume the business does not have any value.  While that may be true in some cases if the business is solely due to the efforts of the spouse, two questions to consider are 1) whether the business has any hard, physical assets that could be liquidated or sold and 2) whether the business could be successfully sold to a third party.  If the answer to either of those questions is a yes, then there is some value to the business.

Depending on the value of the business and other assets of the marriage will determine how the business factors into the distribution.  If an offset with other assets can be accomplished, it may be best to do an offset of the value.  In cases where the business is the most valuable asset, a structured buyout will be necessary.  This may involve a combination of a lumpsum and payments over time.

For more information see:

/Family-Law-Divorce/Divorce-Involving-Business-Owners-the-Self-Employed/

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Social Security Benefits when Divorced

When you get divorced in PA, social security is not considered as an asset in divorce. It may be considered as income for purposes of alimony but not as an asset.  If you were a spouse who did not work and did not contribute to Social Security or if you worked part-time and your benefit is not very much, you should inquire as to whether you are eligible for spousal benefits.  If your ex-spouse worked and contributed to Social Security, you may be eligible for Social Security.  In order to be eligible, you must be unmarried at the time you apply for benefits. Even if you are divorced in between marriages from someone else, you may still be eligible to collect on the first spouse if you meet the requirements.  You must be at least 62 years.  You must have been married to the spouse for at least ten years to collect.  If your spouse is not yet collecting, you can still collect as long as you have been divorced for at least two years.  If you wait until full retirement, you will receive half of what your ex-spouse’s full retirement benefit is.  Your collection of the half of their benefit does not reduce their full benefit.  They will still be eligible for their full retirement benefit.  Social security no longer sends statements out in the mail of your earning history but they are easily accessible online at www.ssa.gov and you should set up an account for yourself to view online.  To learn more about your rights if you are divorced visit: 

http://www.socialsecurity.gov/retire2/divspouse.htm.

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Custody and Incarceration

What happens to a child when their parent goes to prison? If a child is placed with the state agency, such as Children and Youth, a parent may still be able to visit with their child during the time that the parent is incarcerated. It is important for an incarcerated parent to do everything possible to maintain contact with their child and to be active in order to protect their parental rights. Failure to maintain contact or interest can result in a termination of parental rights and adoption if the child is in agency care. Even if visits do not occur, it is important to write, request information about the child, attend hearings and take parenting classes while in prison. If drug and alcohol abuse is an issue, it is important to seek help while incarcerated through the programs offered through the prison.

If a child is with the other parent, oftentimes, the Court does not enter a visitation schedule. Perhaps the Court does not feel compelled to make a parent who is not incarcerated bring a child to visit the prison whereas if the child is in foster care, an agency worker usually brings the child to the prison. Studies show that maintaining family relationship usually helps with the rate of recidivism. If you do choose to bring a child to the prison, you may wonder what those visits look like and what happens during the visits.

If the inmate is in Bucks County, they will be either housed in the prison or the community center. You must contact the prison to find out days and times that there are visitation hours. You should arrive early as they only have limited number of visitors and if it fills up, you will not get in. Your child must be accompanied by an adult and both the child and adult must be on a pre-approved list in order to get it. The visits last approximately a half hour and you will be herded in through security to a room with windows and a telephone. Your child’s parent will be brought into a large gym and they will find you at the window with the phone where you can speak through the glass via a phone. There is no physical contact.

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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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