Tag Archive for: divorce

Same Sex Divorce

In a decision rendered May 20, 2014, the Honorable John E. Jones, III, sitting for the US District Court in the Middle District on the case of Whitewood v. Michael Wolf, ruled that two of Pennsylvania’s laws regarding marriage were unconstitutional on the basis that they violated the Due Process and Equal Protection clauses of the Fourteenth amendment. Now that Pennsylvania recognizes same-sex marriages, same-sex partners looking to dissolve their marriage are subject to the same process as far as divorce, equitable distribution and support. Most divorces proceed on the basis of no-fault meaning the parties need only allege an “irretrievable breakdown of the marriage” and either consent to the divorce after a 90-day period or establish 2-year separation. A no-fault divorce can also be obtained if one of the spouses is institutionalized for a period of 18 months provided they will likely still be institutionalized 18 months following the commencement of the 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. 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. 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.

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Discovery During Divorce

Discovery is the part of the divorce process when information is gathered regarding marital assets and debts and separate assets. One of the main tools used to gather this information are Interrogatories and Production Requests. Many a client has gasped when they have receive 100 very detailed questions to answer or Production Requests that are pages long asking for a large quantity of documents. When you are served with Interrogatories or Productions Requests, it is best to remain calm. This is a standard part of the divorce process. Many of the questions may not apply to your case as attorneys try to cover every possible question and uncover every possible asset. When answering these questions, it is best to put that you do not have any if it is an asset such as a business that you do not have. If the question asks for records that are accounts in joint names, you also do not have to produce them. You can merely indicate that the other side has equal access to this information. Before you panic, talk to your attorney. He or she can explain to you what you essentially need. In most cases, that will be any and all records that are only in your name or your name with a third party, not your spouse.

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Two documents to get during your Divorce

When you are getting a divorce, it is important to get an overall financial sense of what you own and what you can expect to receive. Two documents you may want to obtain are your credit report and your statement from Social Security. Your credit report will identify all credit cards or loans that are open in your own name or jointly with your spouse. You want to make sure all of these debts are considered when you divorce. You can obtain a free credit report each year from each of the three carriers. I recommend that you obtain one from each every four months so you can periodically check on your credit and make sure there are no missed payments on the joint accounts and no new surprise accounts. It is simple and fast to obtain this report, simply go to annualcreditreport.com and pick one of the carriers to obtain the report. Then in four months, pick the next carrier, etc. This way, you will have an updated statement every four months for free. You should also have a copy of your Social Security Statement. This is useful in that it provides you with a history of your earnings paid through payroll as well as provide you with the estimate benefit you will receive if you retire, become disabled or if you have a child and something happens to the parent. You can register and download this information at www.ssa.gov and should print this information. Having an earnings history is useful when you go to court on support to show what your history of earnings is.

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Distribution of Debt during a Divorce

During the divorce process, information is gathered not only on assets, but also on debt. Marital debt is debt that is accumulated during the divorce, regardless of the name of on the account. This means that if you have a charge happy spouse, you may be liable to share in the debt created by their spending spree. The balances of the credit cards and debts as of the date of the separation of the divorce is the date to look at for purposes of debt distribution. Since divorce often takes awhile, you will want to gather this information as soon as you separate. You will also want to keep track and gather proof of every payment you make on this debt since you separated so that you can seek credit for this payment when you get divorced. If your overall marital estate is primarily distribution of debt, you may want to consult with a bankruptcy attorney. Any debt that is discharged in bankruptcy does not get considered in the divorce if it is discharged prior to the divorce going through since it no longer exists. It is always wise to consult a bankruptcy attorney when there are high debts in divorce and few assets to determine not only whether to file bankruptcy or if you qualify but when to file it.

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Finality in Divorce

Sections 3331-3333 of the Divorce Code discuss the potential to review a divorce after a decree has been issued. The general policy is in favor of finality to avoid endless litigation, however certain circumstances will warrant reconsideration. First, parties should act as timely as possible. Section 3331 limits attacks on decrees. An appeal is the only option where one of the parties has died. There is a two year limit to take action specifically where the party questioning the decree had knowledge of the circumstances supporting the attack and failed to timely take action. Section 3332 outlines when a decree may be opened or vacated. In general, there is a thirty day time limit to request review of an Order pursuant to 42 Pa. C.S. 5505.

Section 3332 also draws a distinction between intrinsic fraud and extrinsic fraud. Intrinsic fraud must be alleged within the thirty day time limit whereas extrinsic fraud has a time limit of five years. Intrinsic fraud refers to an issue that was adjudicated. Extrinsic fraud refers to a situation where a party was precluded from having their fair chance at adjudication altogether. Examples of extrinsic fraud include where a party was kept unaware of the proceedings or by promise of a false compromise. There is no extrinsic fraud where the party had ample opportunity to object earlier in the proceedings and simply failed to do so.

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Divorce after Two Year Separation

After two years of separation,  grounds for divorce can be achieved in PA without the consent of the other party. One of the two no-fault grounds for divorce is a two year separation. This separation does not have to mean physical separation. It is legal separation. Legal separation is no later than the date that a divorce complaint is filed. Parties can reside together in the same home while the divorce is pending. After two years, however, from the date the divorce was filed, one party can allege that it has been two years and seek grounds for divorce based on that fact. The other side must actively file a counter-affidavit denying the two year separation or denying there is an irretrievable breakdown of the marriage in order to stop the grounds for divorce from being entered. If a counter-affidavit gets filed, a hearing will be needed to determine if in fact the two year separation has occurred. Grounds for divorce is only the first step in getting a final divorce. In order to get a final divorce, if claims for equitable distribution or alimony have been raised, an agreement either needs to be put in writing or the parties need to go to a divorce hearing after they get grounds for divorce. This is often why there are cases that take at least three years before they are final, and some much longer.

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Benefits of a Law Firm Team

When you hire a law firm, it is a good idea to find out whether the attorney you hire is the only attorney who will be working with you or whether the firm takes a team approach. There are many benefits of the team approach. When you hire an attorney and you meet with your attorney in their office, it is often easy to forget that your attorney is not in their office everyday. You may expect that they will be readily available to you at a moment’s notice, despite the fact that they could very well have days that they are in court and not in the office. What happens when your attorney is in court and you have an emergency? What happens if your attorney is scheduled to be in court in another matter the same day that you have court? When a firm takes a team approach your options are expanded. Oftentimes there is another attorney at the firm who can assist you with any of your legal needs should your lead attorney be unavailable. In addition, in a firm that takes a team approach, if your attorney has a conflict, there is another attorney who could equally represent you if you do not want to or cannot move your hearing to another day. If, however, you like the idea of only one person handling everything, it is best to discuss this with your attorney from the outset and also to understand that this could result in slower turnaround if your attorney is out of the office or may result in hearings that have to be rescheduled if there are multiple court proceedings in one day. As with any relationship, communication is key and it is important to discuss all of these things when you hire your attorney.

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Dividing Personal Property in Divorce

Personal Property in a divorce includes the tangible items that you own, such as the furniture, the houseware, the televisions, the paintings, and other items in your home. When parties separate, one of the parties normally leaves the home and takes items with them. What is taken can often lead to a dispute. It is important to keep things in perspective. The court will normally assign garage sale value to the items which means you are not likely to get a huge credit if you walk away from the entire contents of the home. Some parties unrealistically expect a credit of $ 20,000 for all the contents of the home since they left with very little. This is not likely to happen. What the Court normally does is have the parties list out the items in dispute and if you cannot agree alternate on picking items from the list. If you do have valuables that have a higher value, such as artwork or guns, these things can be separated if you have an appraisal. You should have your certified appraisal before you go to court in order to obtain the highest value for this item. While you may be attached to certain items of sentimental value, it is important to weigh the cost of the item against the cost of fighting over the item. Most personal property issues resolve by agreement. When they do not, most get sent to arbitration to resolve unless the items are appraised. When you leave the house, it is best to take the items that you want to have when the divorce is finalized as it can often take years before these issues will even get heard by the Court.

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Danger of the $ 299 Divorce

Oftentimes a person getting a divorce may see ads for a low cost divorce for $ 299. What the ad does not tell you is that this is for a divorce in which there are no issues, no assets, and it likely does not include a filing fee. You also have to do much of the work yourself. Every county in Pennsylvania has their own filing fee. Normally, you file in the county where you resided together when you separated. If you do not have assets, however, you can agree to file in a county in Pennsylvania where the filing fee is cheaper. Some counties have filing fees that start over $ 300 and do not include any of the legal fees. If you do not have any issues, agree to the county that is cheapest, and are prepared to do much of the paperwork yourself, this may be ideal. The danger is that you will not raise issues that should have been raised such as distribution of assets or alimony that you cannot raise after the decree in divorce is granted. If you are going to go this route, it would be wise to at least consult an attorney for a free consultation prior to finalizing your divorce.

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No jury trials for custody or divorce cases

Many people who are going through a divorce or custody case are unfamiliar with the court system and what to expect unless they have had friends or family who already went through the process. In most family law cases, there are several levels of proceedings. In Pennsylvania, custody, support and divorce issues are usually heard separately and all usually involve a lower level proceeding before a trial. One thing you do not see in family law cases is a trial by a jury. If you go to court for divorce, or custody or support, and you do not resolve your case at the lower level proceedings, you will have what is called a bench trial. This is very similar to the trials you see on television, as you will have witnesses testify under oath on the stand. The same rules of evidence and procedure also apply. As a party you will also testify under oath. Your case, however, will be decided by one person, the Judge. In criminal matters and even in civil cases, you can opt for a bench trial instead of a jury, but in family law cases, you do not have this choice. You will always have a bench trial. One person will decide the outcome of your case.

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