PA Children’s Trust Fund

Most family law actions that will be filed include a filing fee for the initial complaint or pleading. A part of these filing fees go to fund the Pennsylvania Children’s Trust Fund (CTF). This fund has received approximately $40 million dollars from family law filing fees since inception. The initiative of the CTF is to prevent child abuse and neglect across the state. The main emphasis of CTF is to put prevention programs in place to decrease child abuse and neglect overall. The CTF grants its money to local community programs with the same initiatives. It is up to the respective community programs to apply with CTF to see if they are eligible for a grant. Currently, upwards of 250 community based programs across the state have received grants to aid in the fight against child abuse and neglect.

The PA CTF recently established a supporting organization, “Friends of the Children’s Trust Fund.” The goal of this supporting organization is to raise additional awareness and financial support for the mission of the CTF. The fund focusing on prevention due to the negative and potentially long-term impacts of abuse and neglect including, but not limited to, poor physical, mental, and emotional health, social difficulties and behavioral problems. There is also a corresponding economic impact associated with dealing the aftermath of abuse and neglect making an even greater case for the importance of prevention. Many other states across the country also have a similar fund to aid in the prevention of child abuse and maltreatment.

Please visit pactf.org for more information on the Children’s Trust Fund in Pennsylvania.

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Consequences of Bankruptcy in Family Law

Financial obligations in the context of a divorce can create a strain on the party ordered to pay. If a party is simply unable to keep up with all their obligations they may consider filing for bankruptcy. A bankruptcy filing generally results in an automatic stay meaning the party filing for bankruptcy is protected from creditors seeking payment from them until the bankruptcy is resolved however there are exceptions to this general rule. 11 U.S.C § 362 (b) provides that the filing of a bankruptcy petition does not operate as a stay for any proceeding regarding the establishment or modification of an order for domestic support obligations, concerning child custody or visitation, or for the dissolution of a marriage (including decree with court order or property settlement agreement except to the extent that such proceeding seeks to determine the division of property that is property of the estate). Accordingly, a party may not seek to dismiss all their obligations in a family law matter by filing for bankruptcy. Pennsylvania case law reiterates this point. In Schulze v. Schulze, 15 B.R. 106 (1981), the court held that “there can be no doubt that the state court action as it pertains to divorce and the custody of the minor children should not be stayed.”

Another component of filing for bankruptcy is the potential for certain debts to be discharged, meaning the obligation no longer needs to be fulfilled. 11 U.S.C. § 523(a)(15) provides that a debtor cannot discharge a debt to a spouse, former spouse, or child of the debtor that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree, or other order of a court of record. This statute is interpreted to mean that a party cannot discharge an obligation to provide support. A party used to be able to discharge an obligation to split assets and/or debts under a property settlement agreement or order on equitable distribution. In Deichert v. Deichert, 402 Pa. Super. 415 (1991), the court discusses which marital obligations are dischargeable or non-dischargeable in bankruptcy and concludes the court is to look at the intent of the parties and/or the effect/function of the obligation since debts under property settlement are dischargeable but support obligations are not. However, amendments to the bankruptcy law in 2005 provided that any order arising under any family law docket including equitable distribution is no longer dischargeable.

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Types of Custody

Custody refers to the rights of a parent or other adult to be responsible for a minor. In family law there are several types of custody that may come into play. Sec 5322 defines all the different variations of custody. First, there is legal custody versus physical custody. Legal custody is defined as “the right to make major decisions on behalf of the child, including but not limited to, medical, religious and educational decisions.” As it relates to legal custody, it can either be shared between the parents or other responsible parties meaning they have to consult with one another and agree on the major decisions or one parent/party can have sole legal custody and make any decision on their own.

Physical custody is defined as “the actually physical possession and control of a child.” There are several scenarios that can play out as far as physical custody. First, it can be shared between the parents/parties. Shared, or joint, custody is generally understood to mean equal or 50/50 time. There can also be sole physical custody meaning one parent/party has physical possession of the child all the time. Another form of physical custody is primary physical custody. Primary custody grants the right to have possession of the child the majority of the time. In a situation where one parent/party has primary, the other parent/party would be deemed to have partial physical custody. Partial custody means they have the child for less than a majority of the time. Physical custody can be supervised if needed in which case it would need to be determined who would supervise the custody time be it an agency of the court, one of the parties involved, or a third party. The term “visitation” is used interchangeably with partial custody.

Click here to read more on custody.

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Hurricane Sandy

Our area is still recovering from the aftermath of Hurricane Sandy. The storm’s strong winds and rain caused widespread damage over a large area of the nation. Specifically, southeastern Pennsylvania is still dealing with power outages due to downed trees and wires. Many government offices, schools and local courts were forced to close Monday and Tuesday of this week. At this point, all local courts in southeastern PA are open and may be contacted as far as any matters that need to be rescheduled. Our office hopes everyone has remained safe during the storm. We will continue to work hard to assist you in all your family law needs as our communities continue to recover from the aftermath.

 

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Emancipation

Emancipation terminates a parent’s obligation to support their child. Emancipation generally occurs when a minor reaches the age of 18 and has graduated high school. Whether a minor can be emancipated even before that time is a fact-intensive analysis. An emancipated minor must demonstrate they are able to assume all legal responsibility for themselves. Factors that are often considered include the child’s age, marital status, ability to support themself, and the desire to live independently of their parents. A decision on emancipation would be made based on the totality of the circumstances after examining all the facts in any given case.

Even if a minor is determined to be emancipated, it is not necessarily a permanent determination. If the circumstances supporting emancipation change, the child may no longer be considered emancipated. Based on PA case law, a minor’s marriage weighs heavily in favor of finding emancipation. Other key factors based on case law include the child moving out of the parent’s home and having a job to support themselves. Often times, emancipation may be raised if the child stops attending school prior to completion, particularly by parents who do not believe they should continue to be liable for support.

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Social Security Disability Benefits

The issue of social security disability benefits may arise in the context of a support action. Support actions in Pennsylvania are governed by a statewide guideline amount that correlates with the ability to pay. Ultimately, any support award will be based on the net incomes of the parties involved. Social security disability benefits are recognized as a source of income pursuant to Pennsylvania Rule of Civil Procedure 1910.16-2. This is distinguishable from public assistance and supplemental security income (SSI) which are not included as income for purposes of support.

Where child support is being calculated and the child(ren) at issue are receiving their own social security benefit, the amount of their benefit also must be accounted for in the support calculation. PA RCP 1910.16-2(b) goes into detail about the treatment of benefits received by the children in the context of support. The child’s benefit should be added to the net income of the parents for determining what the basic child support award should be based on the state guidelines. The amount of child support based on the support guidelines is then reduced by the amount of the child’s benefit. After the reduction, the appropriate support award would be calculated after considering each parent’s share of the support obligation based on their income, as well as other relevant factors such as health insurance costs and custody.

Click here to read more on child support.

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Step-parent and Kinship Adoptions

In Pennsylvania adoptions are handled through the Orphan’s Court. The rules and procedures for an adoption can be found in the Orphan’s Court Rules under Rule 15. Each county may have a set of local rules pertaining to adoption which should also be reviewed and complied with where necessary. The primary, and in this instance the initial, requirement is the adoption petition. An adoption petition should include the name, age, residence history, marital status, other dependants, occupation, religion, race, relationship to adoptee, and state of health of all petitioners as well as the natural parents. The petition should also state the name, sex, race, age, date of birth, place of birth, religion, and residence history for the adoptee. Each adoptee requires a separate petition. The intended name of the adoptee following the adoption should be included as well. Consents of the natural parents and an original birth certificate of the adoptee should be attached as exhibits. Consent of the natural parents is not required if you are involuntarily terminating their rights. If that is the case you should indicate why involuntary termination is appropriate based on 23 Pa C.S. 2511(a) within the petition. An often used provision under 23 Pa. C.S. 2511 is that the natural parent has failed to perform parental duties or evidenced a settled purpose of relinquishing parental claim to the child for a period in excess of six months immediately preceding the filing of the petition.

The birth certificate to be attached to the petition should be a “complete” or “long-form” birth certificate that includes the full names and ages of the natural parents at the time of birth. You must specifically request a birth certificate with the parents’ ages or you will likely not receive the correct birth certificate. All prospective adoptive parents must submit to a criminal and child abuse background check in the context of the adoption. This must be completed before the petition is filed and also included as an exhibit. Once filed, the petition must be served on all interested parties to give proper notice as required under the law. This would entail either personal service or service by certified mail, return receipt requested, at least 10 days prior to the date set for a hearing. Certification of service must be filed with the court either before or at the time of the hearing. At the hearing, the Judge will make sure all the requirements under the law have been met and there is no objection by the natural parent(s) whose rights are being terminated. If so, the adoption can be granted.

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Qualified Domestic Relations Order

A qualified domestic relations order, or QDRO for short, is a document often used in the context of splitting assets in a divorce to rollover a portion of one party’s retirement plan/benefit to the other party. QDROs are frequently utilized when pensions, 401ks and other retirement benefits have been classified as marital in nature and therefore up for distribution at the end of the marriage. The benefit of a QDRO is that it allows a tax-free transfer of the funds from one party to their new or soon-to-be ex-spouse. The receiving spouse would then be taxed as they withdraw the money as the tax laws provide. The exact nuances of how the plan/benefit is split and what options are available will vary based on the type of plan. For example, it may be that the party receiving a benefit as a result of a QDRO, often termed the alternate payee, cannot begin to do so until the initial participant in the plan begins to do so. The receiving party may or may not be able to designate an alternate successor if they die before the benefits begin to pay out. Or, the plan may provide the receiving party can only designate a survivor beneficiary that would be able to receive the balance of their portion of the benefit if they have started receiving the benefit before they die. The receiving party’s benefit may or may not be affected by the death of the initial participant or his/her early withdrawal penalty, if applicable.

It is always advisable to review the procedures for the specific plan you may need distributed to understand what their rules and policies are when it comes to splitting a participant’s benefits via QDRO in the context of a divorce. You will also likely benefit from having an attorney review the terms of the QDRO as well before signing off on it and submitting it to the plan. Finally, most plans have very specific requirements as far as how the language of the QDRO is to be worded in order for it to be accepted and processed. At a minimum, a QDRO should identify the parties, the plan at issue, and the amount going to the receiving party either as a lump sum or a percentage of the total benefit. It is wise to enlist the services of a company that routinely drafts QDROs to ensure the language is correct and all requirements are met.

Click here for more information on dividing retirement benefits.

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Jurisdiction/Venue in Divorce

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Under Pennsylvania law, 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.

Generally, an action may only be brought in the county where one of the party resides. There are two exceptions allowing a divorce action to proceed in a different county including by mutual agreement of the parties in writing or by participating in the action started in a different county. If two divorce actions are commenced within 90 days of each other, the county where a party resides or where the last marital residence was located gets to determine which county should handle the matter. If neither county is the location of the last marital residence and no party resides in either county, the county that received a complaint in divorce first can make the determination as far as which county will proceed.

Parties should be careful about agreeing to, or participating in, divorce actions outside of their home counties if property distribution and/or other issues such as custody and support may be raised during the divorce. A divorce action may need to be transferred to the county where the bulk of the property is located or where the children reside for custody or where one of the parties reside for support. This will likely result in the expense of having to file a new complaint in the appropriate county as well as the expense and delay of petitioning to have the matter transferred. On the other hand, parties with no issues relating to the divorce may benefit from a cheaper filing fee by choosing a county other than their own for the divorce action.

Click here to read more on Divorce.

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National Child Support Awareness Month

August is National Child Support Awareness Month. President Clinton began the month of recognition in 1995 as part of his welfare reform agenda. The goal was to improve the collection of child support payments by widening the use of sanctions including wage garnishment and suspending driver’s licenses and passports for parents with child support arrears. As of today in Pennsylvania, wage garnishment is virtually always utilized to ensure child support payments can be collected. Garnishments apply not only to the typical income which would be received from an employer, but also to social security and/or veterans benefits. Other methods of securing support payments include intercept of tax return refunds and even lottery winnings. Imprisonment is also a widely available sanction in the context of enforcement of child support obligations.

There has been backlash ever since President Clinton advocated for taking a tougher stance on non-paying parents. For one, the demands of child support are sometimes greater than the paying parent’s actual income. Or, support obligations pile up because the child support obligation does not automatically readjust to account for periods of disability, unemployment or incarceration of the paying parent. However, single parents do need the help of the other parent to provide a comfortable lifestyle for their child(ren). Seven states have joined in a pilot program that focuses on fostering financial stability for the paying parent so that they will be able to meet their support obligation without ending up destitute themselves. Hopefully, a balance can be struck between the seemingly competing interests of adequately providing for children as well as some financial reserve for the paying parent.

Click here to read more on Child Support

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