Alimony 101

Alimony is support paid to an ex-spouse following the divorce decree. The amount of alimony is largely based on the incomes of the parties but may also be affected by the distribution of the other assets, if any. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. As previously alluded to, an alimony provision within an agreement between the parties may not be modified in the absence of a specific provision allowing such a modification within the agreement.

Generally, the length of alimony is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate. If the parties include alimony as a part of their own settlement agreement, they are free to set the amount and length of the alimony as they so agree. Adultery by a party will act as a bar to alimony.

The duration of alimony should be limited to a reasonable period of time for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by obtaining appropriate employment or developing an appropriate employable skill. A party seeking a longer or shorter duration of alimony can petition the court to modify its order based on the factors of Section 501 (c).

The factors to be considered by the court include: (1) The relative earnings and earning capacities of the parties; (2) The ages, and the physical, mental and emotional conditions of the parties; (3) The sources of income of both parties including but not limited to medical, retirement, insurance of other benefits; (4) The expectancies and inheritances of the parties; (5) The duration of the marriage; (6) The contribution by one party to the education, training or increased earning power of the other party; (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home; (8) The standard of living of the parties established during the marriage; (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) The relative assets and liabilities of the parties; (11) The property brought to the marriage by either party; (12) The contribution of a spouse as homemaker; (13) The relative needs of the parties; (14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

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Easier Transitions for Military Families

First Lady Michelle Obama has been promoting a law that would make it easier for military spouses to maintain gainful employment in spite of their often transient lives. The law makes it easier for military servicemembers and their spouses to transfer out-of-state occupational licenses so they can continue working in their profession without significant delay after relocating. Just last week, Illinois became the 23rd state in the country to pass the legislation.

Without such legislation in place, many military spouses are forced to take odd jobs to pay the bills while they deal with the red tape of having an occupational license transferred. Often, it can take several months or more to have the licenses transferred based on the cumbersome paperwork still required in some states.

First Lady Obama took up this initiative to help support military families back in February of 2012. Prior to February, only 11 states had similar legislation on the books. Pennsylvania is one of the states that has yet to pass legislation favorable to military spouses looking to continue their careers despite relocation.

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Custody Relocation and Alternative Forms of Visitation

Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” 23 Pa C.S. 5322. 25 percent of the 35 million children with separated, divorced or single parents have a parent that lives a significant distance from the other parent, limiting the amount of traditional custody time with the non-custodial parent. In addition to giving notice of the proposed relocation and petitioning the court if the other party won’t consent, the party seeking relocation is to submit a proposed order outlining the custody schedule in the event of a relocation. As with any custody decision, the party seeking relocation must show how the relocation is in the child’s best interests. A party seeking relocation should use the proposed order to demonstrate their genuine intent to ensure the nonrelocating party will still have a strong relationship with the child(ren) as a Judge will usually believe maintaining a strong parent-child relationship is in the child’s best interests. This responsibility to prove that a strong parent-child relationship will continue has become easier with the development of social media and video calling services. In fact, the term “virtual visitation” has been coined to describe the opportunities for parents and children to remain touch through the use of technology.

There are several different programs that make it easy for people who live in different places to stay in touch. Skype has become a popular service which allows people to see each other while talking to one another other the internet. FaceTime is a software program available on many cell phones which also allows simultaneous live video streaming in the context of a phone call. Many use Facebook to keep in touch by sharing photos, sending messages, etc. It is now commonplace to include terms for virtual visitations in custody orders where the parents live in different places. Such an order would lay out how often the virtual visits will occur and how long they will last (i.e. Parties will Skype on Tuesdays at 8pm for 30 minutes). A Judge may even order a party to get the appropriate software or equipment to ensure such virtual visitation can take place if they do not have the necessary components already. Several states have laws on the books expressly governing virtual visitation. While Pennsylvania does not expressly reference virtual visitation in its statutes, Judges in the Commonwealth have been including provisions on virtual visitation in custody orders made in the context of relocation.

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Obesity as Custody Factor

The issue of obesity among both children and adults is a regular topic in the news. It is also being addressed more and more often in the realm of family law. Parents in a custody dispute may allege the other parent is not a fit parent because of their own weight problems. The argument then follows that the parent will not be able to provide proper care for the child because he or she won’t be able to keep up with the child. Alternatively, parents may hurl allegations at each other because of the child’s weight problems. Here, arguments may be made that a parent is not looking out for the best interest of the child because he or she allows the child to eat predominantly unhealthy things or doesn’t promote adequate exercise. This failure to ensure an appropriate diet and active lifestyle puts the child at risk for developing serious medical problems such as diabetes or heart disease. It may also subject the child to additional ridicule from their peers damaging their self-esteem and psychological well-being.

Pennsylvania specifically alludes to a child’s physical well-being as one of the factors to be considered in making a custody award based on the child’s best interests. This factor was added when the custody laws were revamped effective January 2011. 23 PA CS §5328 (10) mandates the court to consider which party is more likely to attend to the daily physical, emotional, developmental and special needs of the child. Accordingly, it is relevant to discuss concerns with one parent’s weight and its potential to hinder their ability to provide basic hands-on care for the child. It is also relevant to raise the issue of how a party’s parenting is or isn’t beneficial to the child’s physical well-being. Child obesity is becoming a real epidemic with potential lifelong consequences and a Judge would be remiss not to consider which parent is taking the appropriate measures to provide a healthier lifestyle for their child.

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Pre-Nuptial Agreements

Given the statistics on the likelihood of divorce, many couples are opting to enter into pre-nuptial agreements to protect their rights in the event of a divorce. A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement would provide that each party retains anything they acquire in their own name and that anything marital or acquired jointly will be divided based on the divorce laws. A pre-nuptial agreement may also provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage.

Since a pre-nuptial agreement is a contract is must meet several requirements to be held valid. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. For these reason, the agreement should be signed well before the wedding to avoid any challenge to the agreement that a party was forced to sign because the wedding date was fast approaching. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation. Any challenge under the above listed causes of action will require a fact-based analysis with the standard being a preponderance of the evidence, or more likely than not. Overall, it is difficult to overturn a pre-nuptial agreement once entered into, however, it can provide some peace of mind if the parties do not end up living happily ever after.

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Health Insurance as part of Support

One frequent question in the context of divorce is what will happen to health insurance coverage in the context of a divorce. Generally, a spouse cannot drop the other spouse during the context of the divorce. Health insurance is often considered in the context of support and spouses are obligated to provide support for each other during the marriage. Once divorced, however, you cannot remain on your ex-spouse’s health insurance plan. If you are unable to obtain alternate health insurance on your own right away you can look into COBRA coverage.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives the employee providing the health insurance and their ex-spouse who has lost their health benefits the right to choose to continue health benefits for a limited period of time and under certain circumstances. A spouse who elects COBRA coverage following a divorce may be required to pay the entire premium for coverage, up to 102 percent of the cost to the plan. Additionally, COBRA coverage is only temporary and generally only lasts for 36 months. Only employers with 20 or more employees in the prior year who provide group health insurance are required to abide by COBRA and provide the opportunity for a temporary extension of health coverage.

If there are children between the parties, the children may remain under the health insurance coverage presently provided. There may be an adjustment to any child support award based on who is paying the premiums on the health insurance for the children. There is a 60 day window following the termination of coverage in which to notify the health insurance provider whether or not you are pursuing COBRA coverage.

Support

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Social Security Benefits in Divorce

A party in divorce may be entitled to collect social security benefits based on the earnings history of their spouse. Your spouse must already be at least 62 years old and receiving their social security benefits. Several conditions must be met before a party is entitled to their spouse’s benefits. First, you must have been married for at least ten years. Second, you must presently be at least 62 years old. There is an exception to the age requirement if your spouse is deceased in which case you can start collecting at 60 years old or 50 years old if disabled. Third, your social security benefits based on your earnings history must be less than your spouse’s benefits. You can only receive one social security benefit and should opt for whichever is higher. Finally, you cannot be presently married. There are exceptions to this rule as well. Specifically, remarriage is permissible if it occurs after age 60 or age 50 if disabled.

Be advised that even if you elect to receive benefits based on your spouse’s social security rather than your own, it will not in any way reduce your spouse’s benefits. You spouse will continue to receive the full amount of his or her benefit. In addition, you would be entitled to receive 50% of the benefit your spouse is receiving. If, however, your spouse pre-deceases you, you are then entitled to receive 100% of your spouse’s benefits. Further, any children under 18 at the time of your spouse’s death would be entitled to benefits based on your spouse’s benefits as well.

Divorcing After 50

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Military Deployment as Custody Factor?

The US House of Representatives just passed a bill that would prohibit family courts from considering military deployment as a factor when awarding custody. The bill was introduced by Representative Michael Turner, R-Ohio, and will now be headed to the US Senate for a vote. The rationale behind the bill is that individuals who are ordered into deployment by one branch of government should not be punished in the form of adverse custody decisions by another branch of government. Presently, family court judges can cite deployment as a factor in determining a custody order. The bill would only prohibit deployment as a factor if the individual being deployed cannot bring family members with them on their assignment. Further, the assignment must be between 60 days and 18 months in length.

There is already a law in place protecting military members in the context of divorce. Persons in the military service of the United States are specifically protected by the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SCRA), which, by making provision for the temporary suspension of legal proceedings and transactions relating to them, is designed to ensure that their civil rights are not prejudiced during their terms of service. The SCRA is not, however, a blanket moratorium on all divorce actions against servicepersons. Its protections only come into play when the defendant is prevented or hindered by his or her military service in defending the divorce action. An affidavit of non-military service is a commonplace requirement in a divorce action wherein the plaintiff must submit a signed affidavit indicating the defendant is not in military service in order to move the divorce forward. The defendant can waive the protections of the SCRA and proceed with a divorce while in military service if they so choose.

Military Divorce

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Hidden Assets in Divorce

Often in the context of divorce parties may attempt to hide assets in an attempt to keep them out of the marital estate that will be up for distribution. One of the biggest red flags as far as potential hidden assets is if the spending/assets of the party are way more than would be expected based on their reported income. A party who has a small business and deals in cash can easily hide money. It may become necessary to hire an expert to analyze the income flow and see if their reported income is correct after a thorough investigation. Top level executives may receive alternative forms of income. Examples include stock options, bonuses, car allowances, and deferred compensation plans to name a few. Military members also often have a compensation package that goes beyond their base salary. It is important to obtainformation on all benefits of employment so they can be either be included as income in a potential support calculation or treated as an asset subject to distribution. Another potential problem as far as hidden assets is offshore accounts. Many offshore banks have confidentiality provisions that deflect detection. Parties should also be weary of the other party transferring assets over to family members or friends.

The first step in tracking down assets, hidden or otherwise, is discovery. Discovery in family matters typically consists of interrogatories (set of questions to the opposing party) and a production request (requesting certain documents be turned over). Tax returns and bank statements are routinely requested and are good starting points for tracing sources of income as well as where the income is going. From a tax return you can see rental income, interest on bank accounts, dividends on stock, etc. Bank statements can show the transfer of money and identify where it went to and for what purpose. Parties in a divorce may also conduct depositions wherein they question a party under oath. Further, the parties can subpoena documents directly from the custodian of the documents if the spouse will not turn them over. If these initial avenues of discovery do not yield the desired results, a party will have to contemplate whether it is worth to invest more money in the chase for hidden assets. Additionally, if a party anticipates that hiding or dissipating assets may become a problem during the pendency of the divorce, it is important to get a court injunction right away preventing the dissipation or transfer of any marital assets.

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Spousal Support

Section 4321 of the Domestic Relations laws provides that married persons are liable for the support of each other according to their respective abilities to provide support as provided by law. Similar to child support, spousal support will be calculated based on a statewide guideline. Without children, spousal support is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support will only be 30% of the difference of the net incomes.

One longstanding exception to the duty to pay spousal support is where the spouse seeking support has engaged in conduct that would constitute grounds for a fault-based divorce. The fault grounds under the Pennsylvania Divorce Code include: (1) willful and malicious desertion without reasonable cause for at least one year; (2) adultery; (3) cruel and barbarous treatment of an injured and innocent spouse; (4) bigamy; (5) imprisonment for at least two years after conviction of a crime; and (6) indignities to the innocent and injured spouse which makes that spouse’s condition intolerable and life burdensome.

Many cases have touched on the issue of whether spousal support is appropriate due to alleged existence of another relationship outside of the marriage. It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Adultery is defined as voluntary sexual intercourse with a person other than his/her spouse. Alternatively, indignities may be established even when the evidence does not necessarily support adultery. “Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.” A single act by a spouse will not support a finding of indignities. Instead, it must be a course of conduct that renders the life of the innocent party intolerable or burdensome.

Conduct which takes place after separation is generally not relevant, however, such conduct may be introduced if it will go to show the conduct began before separation. In one case, the evidence supported that Wife had not started dating someone new until three days after the divorce complaint was filed. Accordingly, the award for spousal support was appropriate because of the post-separation nature of the relationship. In a different case, the support award was upheld despite Wife’s conduct before separation. The evidence supported Wife’s contention that her relationship with a certain man other than her husband was strictly platonic. Even though she had been spotted with the man several times, there was no evidence that anything that would support fault grounds for divorce had occurred. In the same case, Husband also alleged desertion as a reason why he should not have to pay spousal support. This defense was overcome as well since Wife’s absence from the marital home was justified based on Husband’s emotional abuse. In most cases, there will not be a problem obtaining spousal support, however, parties should be careful of the timing of new relationships.

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