Practical Steps in Preparing for Divorce

Many clients contemplating divorce have questions about what they should do even prior to filing for divorce to protect themselves. Below is a list of some proposed actions from personal finance company, Kiplinger’s.

Obtain a credit card in your own name if you don’t already have one.

Obtain a checking and savings account in your own name.

Withdraw half the money in joint accounts or change the signature authority so that both parties must sign to complete any transaction. (Beware that if you withdraw all the money in a joint account you may be ordered to give back a portion by the court down the road and accordingly, it is not wise to spend it.)

Collect all information accessible to you regarding your spouse’s bank accounts, retirement/pension plans, insurance policies, real estate interests, and any other financial assets.

Get copies of state and federal income tax returns for the past few years.

The purpose of these actions is to preserve your financial stability going forward by putting things into your own name. You are also ensuring that joint accounts will not be used or closed out by the other party without receiving your fair share. Ultimately, the court will determine what that fair share is at the time the divorce is finalized and that is why the money should not be spent pending the finalization of the divorce. Another tip for parties who are selling a marital home either prior to filing divorce or while the divorce is pending, is to hold the proceeds of the sale of the home in escrow. The share of the proceeds payable to each party would then be determined at the time of equitable distribution.

Click here to view the Kiplinger’s Article: Divorce and Your Money

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Fault Grounds for Divorce

Most divorces proceed on the basis of no-fault or irretrievable breakdown of the marriage based on mutual consent after ninety days or two year separation, however, fault grounds for divorce can still be utilized. Under 23 Pa CS 3301(a), the fault grounds for divorce are listed and include(1) desertion for the period of one or more years; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment for a term of two or more years; and (6) indignities to the point of life being intolerable and burdensome. The party alleging fault must prove its existence and must also establish they are the “innocent and injured spouse.” 

23 Pa CS 3301(b) discussing another ground for divorce infrequently used: institutionalization. This provision allows a divorce on the ground that insanity or serious mental disorder has resulted in the other spouse’s confinement in a mental institution for at least 18 months without reasonable prospect the spouse will be discharged. “A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.” There is often no benefit to pursuing fault grounds for divorce over no-fault grounds as fault is not a factor to be considered in equitable distribution (division of property). However, the laws of support do address fault grounds in two instances: as a defense to paying spousal support and as a bar to receiving alimony.

Click here to read more on fault grounds for divorce.

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Custody Relocation Procedures

In a custody matter, court approval or permission of the parent is required prior to a relocation. A relocation would be any move that substantially interferes with the custodial rights of the other parent. 23 Pa CS 5337 lays out the specific procedures to be followed in the event of a proposed relocation. First, the party seeking relocation should give 60 days notice to the other parent by certified mail, return receipt requested. If not possible to give 60 days notice, notice should be given within 10 days of becoming aware of the relocation. The notice of relocation should include as much information as possible regarding the new address including names and ages of individuals who will be residing there, home telephone number, name of new school district and school, and date of proposed relocation. A counter-affidavit should also be supplied with the notice giving the other party the opportunity to object to the relocation.

If notice is properly given and no objection is received, it is presumed the other parent consents to the relocation. The party seeking relocation would simply need to file a petition for confirmation of relocation. If the other parent objects, a hearing would need to be held prior to the relocation. Section (h) goes into detail about the factors for the court to consider when making a custody determination pursuant to proposed relocation. The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child(ren) under the factors listed. Both parties have the burden of establishing an appropriate motive in seeking to relocate or opposing the relocation.

Click here to read more on custody relocation.

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Driver’s License Suspension

One of the consequences of failing to pay child support is a suspension of your driver’s license. This can happen if support is overdue by three months or more. Advance notice must be given prior to the suspension. The notice specifies the past due amount, how, when and where it can be contested. Grounds for contesting notice of suspension are limited to mistake in the amount of past due support actually owed or mistaken identity. The suspension will occur after thirty days if there is no response, the past due amount is not paid or excused, or there is not a court-approved payment plan in place.

The available methods to have a driver’s license reinstated mirror those that could prevent a suspension in the first place. They include paying the past due amount, entering into a court-approved payment plan or being excused from the obligation. A driver’s license is not the only license subject to suspension. The court also has the authority to suspend recreational licenses issued by the Pennsylvania Game Commission as well as licenses issued by the Fish and Boat Commission. There is no right to appeal an order suspending a license. The only option is to petition the court that ordered the suspension for relief. Additionally, car insurers are prohibited from taking adverse actions, such as increased premiums or rate penalties, if a suspension occurs under 23 Pa C.S. 4355.

Click here to read more on child support.

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New Procedure for Protection from Abuse Cases

The Superior Court of Pennsylvania recently made a decision that will change how Protection from Abuse (PFA) cases will proceed. Previously, as a matter of practice, a PFA petition once filed would be reviewed by the Judge and then a decision could be made as to whether a temporary PFA order was warranted pending a final hearing just based on review of the petition. In Ferko-Fox v. Fox, 2013 PA Super 88 (2013), the Superior Court ruled that the practice of granting temporary orders in this fashion does not meet the requirements of due process as required by the PFA statute. Specifically, 23 Pa. C.S. 6107 (b) requires the court to conduct an ex parte hearing prior to determining if a temporary order is warranted.

Based on the Fox decision which demands strict compliance with the PFA statute, a person seeking a PFA will be required to go before a Judge after filing the petition in order for a brief hearing to be held. This is required in order to safeguard the defendant’s due process rights. According to the Superior Court, those due process rights are not met unless the court takes the time to question the moving party as to the truth of their petition. Arguably, having the moving party appear before a Judge and be sworn in reduces the likelihood that they will make exaggerated or false allegations of abuse. Additionally, the hearing gives the Judge the opportunity to view the demeanor of the moving party and determine his or her credibility as well as see first-hand any physical evidence of abuse. The only exception the court will recognize to this requirement of an ex parte hearing is if there are exigent circumstances and the moving party is unable to appear.

Click here to read more on Protection from Abuse.

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Division of Military Benefits

A spouse is entitled to their share of the military pension no matter how insignificant. Under the 10 year rule, where the parties have been married for 10 years and the servicemember has accumulated 10 years of service, DFAS (Defense Finance and Accounting Services) can pay the spouse directly. When the 10 year rule has not been met the servicemember will be responsible to pay the spouse themselves. This, of course, makes it harder to enforce the distribution of the pension. A court can only award a division of a military pension if it has jurisdiction over the servicemember via residence, domicile or consent. Only disposable retired pay can be divided. This is the total monthly pay less certain deductions. The highest percentage a spouse can receive of the military retired pay is 50%. The spouse will stop receiving military pay when the service-member dies.

In order to continue to receive benefits after the death of the servicemember, a Survivor Benefit Plan (SBP) must be in place. The plan is available if both parties elect it and pay the required premium. It will allow the spouse to continue to receive retired pay post-death of the servicemember. The surviving spouse is entitled to 55% of the retired pay received by the retiree. To ensure the spouse receives the SBP as a former spouse, you must complete a deemed election specifying that the spouse will be named as a former spouse under the SBP within one year of the dissolution of the marriage.

Click here to read more on Military Divorce.

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New Support Guidelines

Several changes to the state-wide support guidelines will take place in August 2013. First and foremost, the basic child support schedule will be updated to reflect newer economic data. The basic child support schedule is a table that references the combined monthly net income of the parents and the number of children to determine the appropriate support award. There is a presumption that the amount of support indicated by the support schedule is the correct amount. In addition to updating the entire support schedule, the Self-Support Reserve has also increased from $867 a month to $931 a month. This amount reflects the 2012 poverty level for one person. The self-support reserve is the minimum amount of income that should be retained by the party paying support to ensure they can support themselves and to provide an incentive to continue working.

Another change set to take place in August relates to the calculation of net income. Generally, the rules provide for a calculation including the net income of both parents, however, Rule 1910.16-2 will soon provide that two calculations be done in low-income cases. First, a calculation should be done using only the income of the party that will be paying support. Then, a second standard calculation should be done utilizing the income of both parties. The party owing support would be responsible to pay the lower amount of the two calculations. This revised rule is meant to address issues where the party owing support is low-income but the party to receive support has significantly greater income.

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Exclusive Possession of Marital Residence

Pursuant to 23 Pa. C.S. § 3502(c), the court has the express authority to award exclusive possession of the marital residence to one or both parties during the pendency of the divorce. This provision was added to the law in 1990. Prior to that, the court had determined it had the authority to grant exclusive possession of the marital residence under the “full equity power and jurisdiction of the court” found at 23 Pa. C.S. §3323(f). This provision gives the court the authority to issue injunctions or other orders necessary to protect the interests of the parties. Laczkowski v. Laczkowski, decided in 1985, was the first case to hold that the court could award exclusive possession of the martial residence during a divorce. 344 Pa. Super. 154 (Pa. Super. 1985). In Laczkowski, the home was to be given to the spouse having physical custody of any minor children.

Other cases have clarified and expanded the instances under which exclusive possession may be ordered. In Uhler v. Uhler, the court indicated exclusive possession should only be awarded sparingly. 428 Pa. Super. 630 (Pa. Super. 1993). Uhler also pointed to the emotional welfare of children as the most important consideration. In Vuocolo v. Vuocolo, the court held an award should be based not only on the needs of minor children, but also the age and health of the parties and their financial needs and resources. 42 Pa. D. & C. 398 (1987). In Merola v. Merola, the court granted exclusive possession in an instance where there were no minor children but the wife was vulnerable and confined to a wheelchair. 19 Pa. D. & C. 4th 538 (1993). In contrast, in Duzgon v. Duzgon, the court did not grant exclusive possession based on wife’s allegations of tension in the home because of husband’s phone calls to his girlfriend. 76 Pa. D. & C. 4th 538 (2005). The court’s rationale was that there was no abuse between the parties and hence no clear need for husband to be excluded from the home. In sum, an award of exclusive possession is a harsh remedy that will not be awarded without clear need and is more likely to be awarded where minor children are involved.

Click here to read more on division of marital property.

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Physician Verification Form

In the event that a party in a support matter asserts an inability to work due to medical issues, the support rules now require that a physician verification form be completed. Pursuant to Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1910.29 (b), regarding evidence in support matters, the physician verification form should be completed by the party’s physician and submitted at the time of the support conference. If the party receives Social Security disability or workers’ compensation benefits, proof of income from those sources can be submitted in lieu of the physician verification form. A sample of the actual form to be used is contained in Pa.R.C.P. 1910.29(b)(3).

If the support matter does not settle at the conference and a hearing will be necessary, the physician verification form can be admitted into evidence if certain requirements are met. First, the party intending to use the physician verification form must serve a copy on the other side within 20 days from the conference date. The other party then has 10 days from receipt of the physician verification form to file an objection. If no objection is received, the form may be accepted into evidence without requiring the physician’s testimony. If an objection is made, the physician would need to testify in court and the court would determine how the cost of the testimony will be divided among the parties.

Click here to read more on the Physician Verification Form.

 

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Support Exceptions

In a support matter, the incomes of the parties will be used to calculate an appropriate award based on the support guidelines applicable throughout the commonwealth. In the event there is a disagreement over the entry of an interim support order, a party has the option of filing exceptions. Pursuant to Pa. R.C.P. 1910.12, parties have twenty (20) days from the entry of an order to file exceptions. Exceptions may address objections to evidence, findings of facts, conclusions of law, or any other matters occurring during the hearing. Each issue should be raised separately as an exception. Each exception should be concise and without lengthy discussion. Issues that are not raised in the exceptions are deemed waived. Examples of appropriate exceptions would include claims that the incomes and/or expenses were not correctly calculated, special circumstances were not considered, or there was an error in assigning an earning capacity. It is not appropriate to file exceptions simply because you do not agree with the guideline amount.

Click below to read more on exceptions.

If a party raises exceptions, any other party in the matter may also file exceptions within twenty days of receiving the initial exceptions. A hearing will be held to hear from the parties on the exceptions raised and a final order will be entered at that time. If no exceptions are filed, the initial support order becomes a final order after the twenty-day window has passed. Once an order is final, an appeal would be the avenue to challenge the order. An appeal would need to be filed with the Superior Court within thirty days of the final order.

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