Retake Maiden Name

A spouse can elect to retake his or her prior name through the course of a divorce action. Pursuant to 54 P.S. § 504, “any person who is divorced from the bonds of matrimony may resume any prior surname used by him or her by filing a written notice to such effect in the office of the clerk of the court in which the decree of divorce was entered, showing the caption and docket number of the proceeding in divorce.” It is also possible to request to retake your maiden name while the divorce is still pending in Bucks County. Check with your county court regarding any applicable filing fee. Currently Bucks County has a $9 filing fee.

Subsection (b) of the statute addresses divorce decrees granted outside of the jurisdiction. In that event, notice to retake maiden name can still be filed after a certified copy of the foreign decree has been filed with court where notice to retake maiden name is being filed. The form of the notice to retake prior surname is below. It is also available on the Bucks County Prothonotary website.

                    NOTICE OF ELECTION TO RETAKE PRIOR NAME

Notice is hereby given that (Current Name) , having been granted a Final Decree of Divorce on (Date) , hereby elects to retake and resume the prior surname of (Prior Name) and gives this written notice avowing her intention in accordance with 54 Pa.C.S.A. Section 704.

(Current Name)

TO BE KNOWN AS:

(Prior Name)

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Name Change

Adults seeking to legally change their name will need to file a petition with the court. In addition to completing the petition, the party should be prepared to pay a filing fee directly to court at the time of filing as well as supply a copy of their fingerprints. Fingerprinting can be done by the local police department where the filing party resides. The purpose of the fingerprinting is to allow for analysis of any criminal background, if applicable. The name change statute does not allow a change of name if certain crimes have been committed. A search through the Prothonotary’s office and Recorder of Deeds will also need to be done prior to a successful name change to ensure there are no other concerns which may bar the application for a name change.

Another requirement prior to obtaining a name change is to publish notice of the petition and hearing date. Generally notice must be published in the law reporter for the county as well as a newspaper of general circulation. This is to notify anyone who may have an objection to the name change and grant them the opportunity to appear in court and state their objections. The total fees can be in the range upwards of $500 excluding attorney fees if representation is desired.

In the case of a minor child, service must be made on the other parent if there whereabouts are known. Otherwise, notice may be accomplished solely by the publication that is already required but permission of the court should be sought to skip specific service on the other parent. If both parents are in agreement with a name change to a minor, the simpler option is to request a correction to the birth certificate through vital records rather than foot the expense to file a petition and seek a hearing. Fingerprinting and other background checks are not required if a name change for a minor must be sought through the court due to lack of contact with the other parent or lack of mutual agreement on the desired change.

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Issues with the Marital Residence

The family court has the authority to make determinations regarding a marital home even prior to or subsequent to a divorce decree. First, the court can grant one of the parties exclusive possession of the home while the divorce is pending under Section 3502 of the Divorce Code. Case law, however, has indicated that an award for exclusive possession should not be given lightly and the party requesting it has the burden of proving its necessity. Section 3323 gives the court general equity powers to issue any order necessary to protect the interests of the parties or as justice requires. This can include an order mandating a party to pay the mortgage on time, forcing the home to be sold if neither party can afford it, and even decisions on which realtor should be used or what the listing price should be.

Section 3105(a) discusses the court’s obligation to enforce agreements between the parties. Accordingly, if an agreement has been made regarding the marital residence and one party refuses to comply, there is the option of taking the issue before the court for enforcement. Again, this may result in an order for the home to be listed for sale, for a certain realtor to be chosen and/or for a certain listing price. Deductions in the listing price can also be requested and awarded. The best agreements will contemplate issues which may arise and set forth contingency plans. For example, a party can specify at the outset how reductions will be made to the listing price if the home has not sold within a certain time frame. It is also useful to explain how parties will be compensated, if at all, for any pricey expenses/repairs above the costs of regular maintenance to ensure the home will sell.

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Survivor Benefits

Survivor benefits refer to the benefit that can be paid to the selected beneficiary following the death of the employee. This type of benefit is most frequently available in the context of a pension plan. A survivor benefit is a marital asset that should be addressed in the context of a divorce. Additionally, the survivor benefit is a separate asset than the pension itself such that a spouse could receive a portion of the actual pension as well as the survivor beneficiary designation. The employee may need to choose whether they want to establish a survivor benefit at the time of retirement. The election of a survivor benefit can result in the reduction of the benefit the employee will receive during their lifetime.

Even if an employee does not elect a survivor benefit, in certain cases it can still be established through court order. A Qualified Domestic Relations Order may be necessary to establish the award of a survivor benefit. Whether or not the award of a survivor benefit is appropriate likely depends on if there is an offset for the interest in the pension or a deferred distribution. With an offset, the employee keeps their entire pension and the other party is awarded other assets such that the parties still achieve an equitable distribution. With a deferred distribution, where the spouse of the employee will be receiving an actual portion of the pension but not until the employee retires, the survivor benefit can act as an insurance policy to ensure the spouse will receive some benefit from the pension even if the employee dies prior to retirement. The best course of action is to obtain and review all plan documents on the retirement/pension and any prior elections of the employee as a first step in determining how to reach an equitable distribution and what options are at your disposal.

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Guardianship

Guardianship refers to the authority to make decisions on behalf of an adult individual who has been deemed incapacitated by the court. The standard for incapacity involves an analysis of whether the individual can manage their financial resources and/or meet essential requirements for their own health and safety. The first step for a party interested in pursuing guardianship of someone is to file a petition with the court. It will be necessary to secure expert testimony regarding the extent of the incapacity and the potential necessity for a guardian. The Petitioner has the burden to prove incapacity by clear and convincing evidence. Notice of the hearing and a copy of the petition must be served on the individual for whom guardianship is sought (Respondent) explaining in plain language the possible ramifications of the forthcoming legal proceedings. Notice must also be given to additional interested parties such as family members.

Following the hearing the court must determine if guardianship is appropriate. First, the court must designate if it is limited guardianship or plenary guardianship. Limited guardianship is appropriate where the Respondent is not totally incapacitated. In this case, the court must delineate what powers the Petitioner will have. The court must also indicate the duration of the guardianship. The appointed guardian must act for the best interests of the Respondent and file a report each year with the court regarding the ongoing care of the Respondent. The Respondent or any other interested party can petition the court to modify or terminate the guardianship if circumstances change or if the appointed guardian is not acting appropriately.

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Veterans Benefits and Support

Former military members may be eligible to receive a number of different veterans benefits from the Department of Veterans Affairs (VA). Possible benefits include disability compensation, pension benefits, life insurance, educational benefits and more. The former service member may also be entitled to additional benefits for dependents. Where the service member is also responsible for paying child support, certain benefits can be garnished to ensure the support obligation is met. The first step is to correctly categorize the benefit to determine if it is subject to garnishment. The second step is establishing a need on the part of the party seeking support and other dependents as well as a failure by the veteran to supply the need. Thirdly, the VA must be assured that there will not be an undue hardship on the veteran as a result of the garnishment.

Procedurally, the party seeking the garnishment must apply for an apportionment. The form asks for information on the total income, sources of income, and expenses for the veteran as well as the custodial parent. The VA will review the request for apportionment and determine if it is appropriate. In either event a formal decision will be rendered. The final decision can be appealed to the Board of Veterans’ Appeals. The state child support agency will need to be involved with apportionment requests. Copies of the current support order and records of any arrears owed and former payment history will need to be supplied to the VA to review as evidence when making its determination on whether garnishment is appropriate and a reasonable amount to be garnished.

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Travel with Minor Children

Many custody orders will provide whether the parties are entitled to vacation time with the children in addition to their regularly scheduled time as well as any relevant notice provisions. A standard provision includes at least thirty days advance notice to the other parent and all details of the itinerary/contact information for the children while away. Parties may want to consider going into additional detail about any restraints on travel, particularly out of state or out of country. It’s good practice to provide that international travel may only be by written consent of both parties or court order. Parties should pay attention to which country the other parent intends to travel to and whether that country belongs to the Hague Convention on Civil Aspects of International Child Abduction and would recognize a U.S. custody order if necessary.

Every person, regardless of age, must have a passport to travel out of the country. Initial passport applications for children under sixteen (16) years of age must be made in person. Both parents of the child should be present. If one of the parents cannot be physically present, they may complete a parental consent form instead. This form must be notarized and a copy of the parent’s ID must accompany the form. There are exceptions to the requirement of the consent of both parents including court order or proof of sole custody. Additionally, there is an application to obtain passport without the other parent on the basis of exigent circumstances and the unavailability of the other parent. You can visit the U.S. Department of State website for additional details on the requirements to obtain a passport at travel.state.gov.

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Short Sale Basics

A short sale is an alternative to foreclosure. The lender allows the home to be sold for less than what is owed on the mortgage. It is usually less of a loss for the lender to allow a short sale than to let the home go into foreclosure. Once a home goes into foreclosure the lender loses even more money on a monthly basis providing for the upkeep of the home and paying the taxes. Additionally, it is less of a hit on the credit of the seller to go through with a short sale over a foreclosure. A seller should try to negotiate with the lender to minimize damage to their credit rating as part of the sale agreement. To be eligible for a short sale, the seller must be behind on payments due to financial hardship. Proof of this hardship must be established by supplying tax returns, pay stubs, bank statements and list of monthly expenses. A short sale is not likely to occur if the seller is already in bankruptcy as a short sale is considered a prohibited collection activity.

The short sale process moves most quickly if it is pre-approved by the lender for a certain amount although this is not usually the case. It is a good idea to work with a real estate agent or attorney to help negotiate the short sale process between the lender and potential buyer and ensure a timely sale. The short sale process becomes more complicated if there is more than one lender. Second mortgages or home equity lines can muddy the short sale process especially since secondary lenders stand to take the biggest loss on a short sale and all the lenders need to be in agreement with the terms for sale. Buyers stand to gain the property at a discount through a short sale but should exercise caution and do thorough research on the prospective property. All parties should be prepared to be patient with the short sale process and seek guidance/representation by an expert in the area.

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Grounds for Annulment

There are two options for ending a marriage in Pennsylvania: divorce or annulment. An annulment may only be pursued where the marriage itself was void or voidable. A marriage is void where either party was still married at the time of the current marriage, the parties are related to a certain degree, either party did not consent to the marriage due to incapacity or serious mental health disorder, or either party was under 18 at the time of the marriage. These grounds for annulment can be pursued so long as there was no confirmation of the marriage by continuance of the marital relationship after one of the above-mentioned grounds was discovered.

Grounds for annulment for voidable marriages include instances where either party was under the age of 16 without express court approval, either party was 16 or 17 without parental consent or court approval, either party was under the influence of drugs or alcohol, a party is incurably impotent and the other party has no knowledge of the same prior to the marriage, or where a party was induced into marriage by fraud, duress or coercion. For several of the grounds, a complaint for annulment must be filed within sixty days after the marriage ceremony. Also, similar to the grounds for a void marriage, the parties cannot subsequently ratify the marriage by continuing as spouses after they have learned of the potential ground for annulment. Procedurally, annulments move forward in the same way as a divorce through the filing of a complaint with the Prothonotary. Any property acquired during the marriage will be subject to equitable distribution.

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Adjustments to Basic Support

Support in Pennsylvania is calculated based on a statewide guideline amount. Pennsylvania Rules of Civil Procedure 1910.16-6 outlines potential adjustments to a basic support obligation. Reasonable child care expenses paid by either parent can be added to a support calculation. The additional cost is then allocated between the parties in proportion to their income. Most additional expenses will be similarly divided among the parties based on their net income. Health insurance premiums on behalf of the other party and/or children can be included. Further, the portion of the premium attributable to the party paying it can also be allocated as long as a duty of support is owed to that party. Unreimbursed medical expenses are also covered. The first $250 is built into the calculations such that the party receiving support is expected to cover it. Expenses over $250 are split by the parties based on their relative amount of income. Expenses include co-pays, deductibles, dental and optical services as well as orthodontia. Expenses that are usually excluded include chiropractic, cosmetic and psychiatric/psychological services.

Private school tuition and summer camp may also be included in a support award if the court deems the expenses reasonable and necessary. Parties usually need to agree on private school in order for the tuition to be shared through a support award. Mortgage payments are the final category of potential adjustments. This provision only applies for a marital residence where only one of the parties continues to reside there. If the mortgage payment exceeds 25% of the net income of the party residing there, there may be a deviation resulting in an increase in support if the residing party is receiving support or a decrease in support if the paying party is residing there. The term “mortgage payments” is inclusive of all real estate taxes and homeowners insurances. At the court’s discretion, it may also include second mortgages, home equity lines and other obligations secured during the marriage secured by the marital residence.

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