Tag Archive for: divorce

Pennsylvania Victims of Domestic Violence May Have Easier Road to Divorce Under New Law

On April 21, 2016, Governor Wolf signed into law a bill which essentially simplifies the process for victims of domestic violence to obtain a divorce. Currently, under the Divorce Code, even in the case of domestic violence, if a spouse refuses to consent to the divorce after 90 days, the divorce cannot proceed until there has been a two-year separation. In the new law that takes effect in sixty days (around June 22, 2016), a victim of domestic abuse can file for divorce and the law presumes consent of a party if they have been convicted of committing a personal injury crime against the other party.

Additionally, the new law allows the victim to object to court-mandated divorce counseling if they have a protection from abuse order. The victim can also object to court-mandated counseling if they were a victim of a personal injury crime for which the other spouse has been convicted or is in an accelerated rehabilitation disposition program as a result of conduct for which the other party was a victim.

For purposes of presuming consent to a divorce under this new law, the party has to have been convicted, meaning having been found guilty, having entered a plea of guilty or nolo contendere or having been accepted into an accelerated rehabilitative disposition program. A personal injury crime under this new law is defined as an act that constitutes either a misdemeanor or felony or criminal attempt, solicitation, or conspiracy to commit any of the following: criminal homicide, assault, kidnapping, human trafficking, sexual offenses, arson and related offenses, robbery, victim and witness intimidation, homicide by vehicle, or accidents involving death or personal injury.

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Treatment of Veterans Benefits

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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. Title 38 of the U.S. Code addressing veterans benefits dictates that the benefits are off limits to creditor claims. However, Title 38 has special provisions regarding the support of family dependents. Accordingly, receipt of veterans benefits can be counted as income for support purposes.

Veterans benefits cannot be divided as an asset in a divorce case. This is due to the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Pennsylvania Divorce Code confirms this rule. Under 23 Pa. Section 3501(a), discussing the definitions for marital benefits, veterans benefits exempt from attachment, levy or seizure are defined as non-marital. The definition goes on to draw a distinction between any benefits received in lieu of military retired pay. A similar distinction arises in support cases as far as whether the benefits can be garnished for payment of an award. Garnishment of veterans benefits is only permissible where the service member has waived military retired pay to receive the veteran benefit.

Click here to read about military divorce.

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Updating your Will after Divorce

After your divorce it is very important to update your estate planning documents, most importantly your will. If you leave your old will in place your financial assets, property and even the care of your children may wind-up in the hands of those who you no longer want – your former family members or ex-spouse.

Select a new executor of your will: the executor of your estate is the person who will be charged with distributing your wealth and property. While they are to follow your wishes, if your executor is still your former spouse he/she may not do as you wish or add undo stress when dealing with your family members. When you select an executor make sure they understand your wishes and

Clearly outline who gets what items: Part of the reason you want to clearly spell out the distribution of your items is to avoid fighting by your loved ones after the fact. This can include a family heirloom or an important piece of your jewelry. Rather than have your children fighting over items they were “promised” it is so much easier if you

Name a guardian for your minor children:

In most cases, upon your death your former spouse would be given full custody of your children. If that would not be in the best interest of your children then you will need to spell out why and we suggest you do that under the advisement of an attorney. Furthermore, if your former spouse is no longer in your children’s life due to domestic violence, alcoholism or drug abuse, it is critical that your will contain the right wording and plan for your children. Protecting

Estate planning may seem tedious but is there to protect your wishes should you pass on. Do not rely on state law to handle your estate. Take a proactive approach and ensure that financial assets and care of your children are handled by a responsible individuals who will ensure your children, financial assets and valuables are handled properly.

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Dividing Property in Divorce

Equitable distribution is the term used in Pennsylvania referring to division of marital property at the time of divorce. Marital property will consist of nearly everything acquired in either party’s name from the date of marriage through to the date of separation. It will also include pre-marital assets that have increased in value during the marriage. Equitable distribution does not necessarily mean a 50/50 split of all marital property. Instead, the statute on equitable distribution sets out 13 factors to be considered. Those factors are listed in 23 Pa C.S. 3502. While the length of marriage is a factor in equitable distribution, it does not mean that assets won’t be split at all in shorter marriages.

If the parties have to go to court for equitable distribution, they will be required to submit a statement beforehand laying out what they allege is the marital property at issue, how the factors listed affect their case, and what they are ultimately seeking as an “equitable” distribution. It is important to have knowledge of all the marital assets and debts at issue. Additionally, parties should have documentation to prove the value of any assets and debts to be addressed. Key dates for valuation may include date of marriage, date of separation and final hearing date. Items acquired after the date of separation but prior to the final divorce decree should also usually be excluded.

Click here to read more about division of property.

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Divorce vs. Mediation

Parties often ask what is the best way to proceed when initially contemplating separation and/or divorce. Generally speaking, parties are encouraged to try to reach an agreement to resolve whatever issues have arisen in any legal matter. In family law, agreements are especially encouraged due to the personal nature of the issues at hand along with the belief that it is better for the parties to draft their own agreement rather than allow a stranger to dictate their family dynamics going forward. Additionally, litigation or time spent in court is often the most expensive aspect of a divorce matter.

Both mediators and divorce attorneys can help you negotiate or draft a settlement agreement. The key difference is a mediator is an impartial third party where as an attorney is representing one party’s interest. This is not to say a divorce cannot be resolved with only one attorney; simply that the attorney cannot give advice to both parties since it would be a conflict of interest. Instead, the attorney should make it clear to the unrepresented party their role in the process and the limitations on communication between the attorney and the unrepresented party. Further, it is possible for both parties to have independent counsel and still reach a settlement agreement. If mediation is successful, an attorney may still be needed to file and process the divorce matter.

Click here to read more about options for mediation.

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Keeping the House in a Divorce

If you want to keep the house in a divorce, you may wonder what they will entail. If the mortgage is in joint names or in your spouse’s name, you are definitely going to need to refinance the mortgage into your own name at the time you get divorced, unless your spouse is nice and agrees to stay on the mortgage longer. If there is equity in the home, and not enough other assets to compensate your spouse in other ways, there is a good chance you are also going to need to come up with additional money as part of the refinance in order to buy your spouse out. The equity will be the value of the home at the time of the distribution less all the debt on the home (mortgage, home equity lien, etc.). The amount you will have to pay your spouse will depend on the percentage split of the assets as well where you live. In some counties they will deduct the cost of sale even though you are not selling the home. In others, they do not. If you need to time to be able to refinance, in some cases, it is recommended that you wait the two year period that you can delay a divorce by not consenting. During that time, as long as the mortgage is being paid you can remain the house while you work to build your credit or income so that you can refinance. If you are interested in keeping the house, you will want to check your credit as soon as you separate and talk to a mortgage broker or lender to see what things you will need to do in order to qualify for a loan and then set a plan to meet those steps. You also want to make sure you create a budget to make sure that you really can afford the home. You will need to project your income, the support you receive and the costs of the home, not just the mortgage but all the maintenance and make a decision based on all those factors.

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FILING DIVORCE ON YOUR OWN

Some people desire to File a divorce on their own. While there is no law the requires that you have an attorney in order to file divorce, the challenge that is often faced is knowing the steps that are needed to process the divorce as well as the legalities of what is needed in service and providing proof to the court. Filing a divorce on your own should never be attempted if you have property to divide or you have alimony issues as you have too much to lose if you do it wrong. Even when you have no issues, it is very difficult to navigate the court system and the requirements. That is not to say it is impossible, just more difficult. Filing the divorce itself is probably the easiest step of the process. You file a complaint for divorce, usually in the county you reside, although if you both waive venue you can file in another county that may have a lower filing fee. After the complaint if filed, however, you need to serve the complaint. This is normally done by certified mail, return receipt requested, but can also be done by acceptance of service or personal service. In some instances, if the defendant cannot be found, you may need to get permission to serve the defendant by publication. You need to prove to the court that service was made so you will need to file proof which varies depending on how the defendant was served. You may also need to verify a signature depending on the county and the method employed. After service is where it becomes tricky. The remaining documents are time-determinative documents based on whether you are filing a two year separation or a 90 day consent divorce. You need to make sure you have the right documents and that you file them and any proof in the correct order. Finally, you will have another set of documents to file to get your final decree if you have no issues that depending on the county need to be served by notice by a certain method, again with proof. If you have no assets and no issues, you may want to consider spending the money to make sure it is handled properly. Most firms will offer a lower cost divorce in these instances. At a minimum, you may want to consult a firm on an hourly basis to review the papers and steps as you go along. While most counties do not have forms available for you to file, if you really want to attempt to file on your own, you may want to contact Potter County in Pennsylvania to obtain any forms available that they have on divorce as many simple divorces are processed through this county, or consult your local bookstore for a how to file book which may be helpful in explaining the process and providing you with forms.

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Dealing with the Car in a Divorce

Divorce brings up many issues and how to address each one. One very common issue is a car. The value of the car is usually determined at the time of the distribution and usually does not have significant value in most cases. Like other assets, it is the value of the car less any liens or loans on the car. Kelly Blue Book is often used to determine the value of the car. The person who keeps the car is responsible for the loan on the car regardless of whose name the loan is in at the time. In some cases, an indemnification clause can be added to the order or agreement whereby the party who keeps the car is responsible for the loan and if they fail to pay, the other party can seek recourse. In some cases, if the party driving the car is owed support, the other side may agree to deduct the amount of the loan payment from the support. Once the loan is paid off, it is important to include language regarding the transfer of the title. If one party is not agreeable to keep the loan in their name while the other party drives the car, then oftentimes, the balance of the loan can be paid off from other assets such as the refinance or sale of the home. In addition to being responsible for any payments on the car, whoever is in possession of the car is also responsible to keep the car insured. If the other side is paying the insurance if the vehicle is in their name, it will be credited back to them in either support or the divorce. Keep in mind that in a divorce, usage of the property oftentimes determines responsibility for payment of expenses.

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Preparing for your Divorce Consultation

When you are considering a divorce, it is often normal to obtain a divorce consultation to find out what to expect and what your rights will be. A divorce consultation may be done by phone or it may be done in the lawyer’s office. In order to make the best use of your time, you want to make sure that you are prepared. You want to keep to the facts and try to leave the emotional story out of the conversation so that you can obtain the best possible advice during the consultation. The basic facts will help the lawyer assist you in explaining your options and what to expect. If you want to have an idea of how much support you will receive or pay, then you will want to be sure to have the information on income for both parties, the cost of the mortgage, medical bills, child care and other expenses. You will also want to have an idea of what you think the custody arrangements may be. If you want to discuss options on how assets may be allocated, you will want to know approximately how much each asset is worth and what type of asset it is, such as a house, retirement account, etc.. If you find that you are too emotional, you may want to consider bringing a trusted friend who can assist you with during the consultation and provide you with emotional support. You may want to make a list of questions that you want to be sure to ask while you are in the consultation as oftentimes, it is overwhelming and you may find it difficult to think clearly. You should bring a pad of paper and pen so you can jot down notes during your consultation.

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Pensions in a Divorce

In a divorce, especially a long term marriage, a pension can be a very valuable asset. Assets accumulated during the marriage are marital assets, regardless of whose name the asset was accumulated in. Retirement accounts, including pensions are marital assets to the extent that they were acquired during the marriage. If a portion of the pension was accumulated prior to the marriage or after the marriage, the court will use a coverture fracture to determine the marital portion. This means the number of years married over the total years that the pension was accumulated will be marital. In addition, many pensions have a survivor benefit that should also be considered. A survivor benefit is an election when the pension is taken that reduces the monthly pension payment based on the election that is chosen. Depending on the value of the pension and the health of the parties, the divorcing spouse may want to pursue the survivor benefit whereby they secure a monthly payment in the event of pension earner’s death which could be various percentages of the monthly pension depending on the election that was taken. Instead of doing a percentage of the marital portion, in some cases, it may be beneficial to have the pension appraised and the survivor benefit appraised to offset the value with other assets. Usually a private company will be hired to do this type of valuation.

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