National Adoption Day

Bucks County will hold its National Adoption Day, tomorrow, November 21, 2014. The celebration begins at 11 a.m. on the third floor of the main courthouse in Doylestown, PA. The celebration is spearheaded by the Bucks County Children and Youth Social Services Agency as well as the Register of Wills and Orphans’ Court. This year Pearl S. Buck International and Love the Children are being honored for their work in finding homes for children. A brief reception will follow the awards.

November is National Adoption Month. This is the 19th year for recognition of National Adoption Month after President Clinton extended the recognition from a week to the entire month of November in 1995. The week-long celebration began in 1984 under President Ronald Reagan. Pennsylvania participates in presentation of a proclamation every year regarding National Adoption Month pledging its commitment to make sure every child has a place to call home.

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Family Law and Immigration

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Family-based immigration is one of the more popular pathways to legal residence in the United States. It is important to understand how family law actions may affect immigration status. Marriage to a US citizen potentially creates an opportunity for a noncitizen to achieve residence. The marriage must first be valid under state law as with any other marriage, but also must pass the criteria of the Immigration and Nationality Act. Marriage fraud, marriage for the sole purpose of obtaining residence, is a serious concern. U.S. Citizenship and Immigration Services (CIS) will make inquiries into whether there is a bona fide marriage. Additionally, permanent residence is not an option unless the parties have been married for at least two years.

Just as marriage creates an opportunity for residence, divorce can end eligibility for immigration benefits. This is particularly true if the divorce or legal separation occurs prior to the spousal visa being finalized. Divorce may also draw the attention of the CIS to ensure the marriage was bona fide in the first place. Federal law governs how the immigration process works whereas family law is governed by state law. Additionally, family law actions do not require any type of legal US citizenship by the parties. Instead, sufficient residency within the jurisdiction of the local court is generally all that is required for anyone to bring a family law action.

Click here to read more on immigration.

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Uniform Child Custody Jurisdiction and Enforcement Act

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) clarified an uniform approach to dealing with child custody matters nationwide. Since its inception in 1997, 49 states as well as the District of Columbia have adopted the Act. One of the goals achieved through the UCCJEA is clear guidance on who should exercise jurisdiction over a custody matter. The preferred method for establishing jurisdiction is based on the home state of the child. The homes state is defined as the state where the child had been living for at least six (6) months prior to the custody action or since birth if the child is less than six months old. If jurisdiction is not clear based on an analysis of the home state, the courts should then look to see where there are significant connections and substantial evidence relevant to the custody action. Significant connections is more than just mere presence in any state.

Once a court obtains jurisdiction under one of guidelines above, that court continues to have exclusive jurisdiction until it is established that another court has become more suitable for jurisdiction. Accordingly, any modifications of custody must go through the court that made the initial or prior determination. There is an exception to the rules on jurisdiction in the event of an emergency. If a child is in danger and there is a need for immediate action, the jurisdiction where the child is located at that time can enter a temporary emergency order. The UCCJEA also provides a procedure for registration and enforcement of custody orders across state lines.

Click here to read more on custody.

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Fair Rental Value

The issue of fair rental value arises where one spouse is no longer living in the marital residence pending finalization of a divorce action. The principle behind fair rental value is that the spouse that has moved out of the former marital residence still has a ½ interest in the property and accordingly, should be compensated for their interest. The court must consider a number of items in reaching an appropriate calculation of any rental credit due. First, the court must determine if there are any equitable defenses that should offset the total of any rental credit due. Second, the court must consider the length of the dispossession. Case law also establishes that the other spouse must be in actual possession of the home.

Finally, the court must calculate the total amount of credit for expenses paid on the home. These expenses would include the mortgage payments and other ordinary expenses related to the home. Similar to any rental credit due, expenses should be split in half to reflect each party’s ownership interest. If the rental value exceeds the expenses related to the home, the spouse that has left the home should get a credit for ½ of the rental value offset by the expenses. An argument for fair rental value is most likely to occur where the home is owned outright such that no mortgage payments are made or there are relatively small monthly payments on any debt associated with the house compared to what the home could rent for.

Click here to read more about equitable distribution.

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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.

Click here to read more on Name 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.

Click here to read more on dividing marital property.

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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.

Click here to read more on equitable distribution.

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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.

Click here to read more about PA Family Law.

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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.

Click here to read more on child support.

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