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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New Jersey Alimony Reform

New Jersey is waiting to hear whether the long sought-after changes to their alimony laws will be adopted. Many view NJ’s alimony laws as unfair and inconsistent. The proposed changes to the law would seek to fortify a more uniform and rational framework for determining what amount and duration of alimony is appropriate as well as circumstances that would warrant a change or termination of the alimony award. One of the key provisions of the proposed new law is the “elimination” of permanent alimony which would be replaced with open durational alimony. Additionally, the court would be required to consider all the relevant factors for an alimony award and provide specific written findings of fact and conclusions of law in support of their decision. The factors would be expanded to include a consideration of support that has already been paid prior to finalization of the divorce as well as the standard of living of both parties such that neither would be entitled to a greater standard of living than the other post-divorce.

The proposed revisions to the alimony law also attempt to put a cap on alimony such that for marriages of twenty (20) years or less, the alimony award cannot be longer than the length of marriage. The court could still get around this general rule in the case of exceptional circumstances. Additionally, alimony awards could be modified and/or terminated upon the retirement of the spouse paying alimony if at full retirement age. If seeking to retire earlier, the paying spouse would have the burden of proving retirement is reasonable and made in good faith. Finally, alimony could be suspended or terminated if the party receiving support cohabits with another person. It is still the burden of the party alleging cohabitation to provide proof of the same to be successful in terminating the alimony award.

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Vacation Schedules in Custody

Vacations are a staple of the summer season and you want to make sure your children are able to enjoy vacation with you. A vacation schedule can be included as part of a custody order to alleviate any confusion or disagreement. Standard provisions specify how many weeks of vacation each party is entitled to per year, how the weeks may be exercised, what type of notice should be given, and what additional information should be provided. A sample vacation schedule paragraph is below:
Each party shall have two non-consecutive weeks of vacation each year with thirty days advance written notice to the other parent. If there is a conflict on vacation where both parties plan the same week, the party who gives written notice first shall be entitled to the week. Written notice may be via email or text message. The parties agree that they will each exercise their vacation week to include their regular scheduled time so as not to unnecessarily disrupt the regular custody schedule.

The parties agree will provide the other parent with a travel itinerary, and names of anyone traveling with the children and provide contact information for how to reach the children while on vacation. The parties agree that if either parent intends to remove the children from the Commonwealth of Pennsylvania for any purpose for any length of time over two days, that he or she will provide one (1) week notice to the other and indicate the destination where he or she intends to take the children, names of anyone traveling with the children, the length of the trip and a phone number and address where the children can be reached. Neither party will be allowed to travel out of the country with the children unless both parties agree in writing or a Court Order is obtained. The parties acknowledge that the vacation schedule takes precedence over the regular schedule and the holiday schedule takes precedence over the vacation and regular schedules so that neither party may take vacation during the other party’s holiday time.

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Residency for Jurisdiction

Under Pennsylvania law, specifically 23 Pa. C.S. 3104(b), one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes her meals, receives mail, and stores personal possession. Members of the military are considered to be residents of their home state even if they are stationed elsewhere at the time a divorce is commenced. The home state would be the state where they intend to return to and reside in following any term of active duty.

Jurisdiction for custody matters is usually also based on a six month time frame. Jurisdiction is proper in the home county of the child which is where the child has resided for at least six months prior to commencement of the action. Temporary absences from the county do not negate residency for the purposes of jurisdiction. Further, in emergency situations, the six month residence requirement may be set aside. Temporary emergency jurisdiction may be exercised if the child is in the jurisdiction at the time and it is necessary to make an immediate determination to ensure the child’s safety. For example, an emergency order may be entered if a child has been abandoned, or is subject to mistreatment or abuse. An emergency order would only be valid until a court with jurisdiction as the home state of the child makes a determination.

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Counseling in Adoption Cases

Prior to an adoption taking place, the rights of the natural parent(s) must be terminated. This may occur via consent, voluntary relinquishment or involuntary termination. Pursuant to 23 Pa C.S. 2505, each county is responsible for keeping a list of qualified counselors who are available to assist natural parents contemplating voluntary relinquishment or facing termination of parental rights. The court must inquire of the natural parent(s) if counseling services were utilized prior to any decree terminating their rights. If the natural(s) have not received any counseling, the court may briefly postpone a decision on the termination to allow the natural parent(s) an opportunity to seek counseling.

When an adoption is filed, a portion of the filing fee goes to support the county counseling fund which exists to pay for counseling where the natural parent(s) desire to participate but are unable to afford it. Presently, the counseling fee is $75 and is filed with the Report of Intent to Adopt. The Bucks County Orphans’ Court Division is hosting two informational sessions regarding the counseling program available. The first is on July 29, 2014 at 9:30 a.m. at the Lowers Bucks Chamber of Commerce in Fairless Hills, PA. The second event is being held on July 31, 2014 at 9:30 a.m. at the Central Bucks ambulance & Rescue Unit in Doylestown, PA. For additional information or to R.S.V.P., please contact (215) 348-6260.

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Landlord-Tenant Basics

A lease is the typical agreement outlining the arrangement to occupy property between the tenant, who will become the occupant, and the landlord, who is the legal owner of the property. Leases between landlords and tenants can be oral or written if the lease is for a period of less than three years, although written is always preferable. Lease agreements must be in writing for terms greater than three years. A tenant should make a careful review of the property prior to signing a lease. For example, a tenant should check to see if all appliances are in working order, if there are any plumbing issues, if the electric is properly wired and all light fixtures and outlets are in working order, whether the walls or ceilings have any cracks, holes or other damage, if the floors, railing and bathroom fixtures are in good repair, whether there are any rodent or insect problems, and whether the windows and doors are functional and secure. A tenant should be sure to note any existing damages to the landlord prior to signing a lease as the tenant is obligated to leave the property in the same condition at the termination of the lease.

The term of a lease will automatically terminate as stated in the lease but can terminate earlier in certain circumstances. A landlord can evict a tenant if they are behind on rent or break any other clause of the lease. A landlord must provide a notice to quit to be personally delivered to the tenant, posted to their residence, or left in a common area. The notice must allow a time frame to rectify the breach prior to eviction. If the tenant does not come into compliance, the landlord must then follow the steps to file a complaint in district court for eviction.

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Retirement Plan Distributions in Divorce

Retirement plans are often one of the significant assets up for distribution in the course of a divorce. Careful attention should be given to the type of retirement plan at issue to avoid tax penalties and/or early withdrawal penalties to the extent possible. First, retirement plans must be distinguished between qualified plans and non-qualified plans. Qualified plans include defined contribution plans such as 401Ks as well as defined benefit plans such as pensions. A Qualified Domestic Relations Order (QDRO) will be necessary to distribute a qualified plan. Non-qualified plans include individual retirement accounts or IRAs. A QDRO is not needed to distribute these plans.

Both qualified and non-qualified plans will be taxable as distributed. The QDRO effectuates a tax-free rollover of funds to the spouse being awarded a share of the retirement plan in divorce but the spouse will be taxed on it when they withdraw it. Distributions outside of a QDRO may also be subject to an early withdrawal fee. Typically, a 10% early withdrawal penalty applies to distributions before the plan participant is 59 ½ years old. There are a few ways to avoid the early withdrawal penalty including a loan from the retirement plan, disability of the plan participant, and scheduled equal payments. Additional exceptions for IRA plans include higher education expenses and for first-time home buyers.

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