Are you getting divorced and represented by counsel? Under the PA Rules of Professional Responsibility, an attorney is not permitted to communicate directly with a party whom they are aware is represented. This applies to that other party as well. These rules are there to protect not only the attorney but also the party. While sometimes you may think it is cheaper and easier to communicate directly with your ex’s attorney, it is a mistake. You may say or do something that could jeopardize your case. If you have hired an attorney, it is best to let them do their job and filter everything through your attorney. Your attorney will be able to determine what is relevant and should be conveyed to the other side and what may just simply end at their office. If you are frustrated with your legal fees and working with a middleman, explain this to your attorney and they may be able to offer suggestions on ways to either minimize your expenses or getting the information faster to the other side. Whatever you do, do not pick up the pen, computer or phone and contact the other attorney.
Tag Archive for: divorce
If you are getting divorced, you may have accumulated retirement plans during your divorce. Sometimes clients are surprised when they learn that the retirement plan that they have earned in their own name is subject to equitable distribution. Not only can your current spouse be ordered to be named your beneficiary in the event of your death, but they actually will be awarded a percentage of the benefits at the time of the divorce. It is important from the outset to obtain the plan documents from your plan administrator so that you know what options you have in the event of retirement on the selection of a survivor beneficiary as well as so you know under what terms a spouse can receive a distribution. In addition, just because your court order or agreement awards your spouse a percentage of your benefits, does not mean this is automatically going to be tax free. You must also have the order drafted in the form of a Qualified Domestic Relations Order. Most plan administrators have sample language that they will approve and it is a good idea to ask your plan administrator if they have sample language. You must always have your plan administrator approve the QDRO that is prepared before you send it to the Court to have the Judge enter it as an order.
When issues arise in a divorce that are in dispute, parties oftentimes are concerned with being right or getting justice. The divorce action itself, aside from the peripheral issues of custody if there are children, involves money. The court does not assess who is right and who is wrong in wanting to get a divorce. The court generally does not care why someone is getting divorced. The issues before the court are what financial assets does the court need to divide and what are the incomes of the parties with the disparity income between the parties as the biggest driving factor in the outcome of a divorce. When parties have issues that are in dispute, they often either involve a dispute over the value of an asset or the percentage that should be awarded in the divorce. In these instances, a party who is more interested in being right forgets to weigh the cost of proving they are right. For example, if two parties disagree on the buyout figure for a house and their dispute is a matter of difference of $ 20,000, the parties need to step back and weigh the cost of getting the house appraised, bringing an appraiser to testify in court, preparation time for court, time at a court hearing and any court costs and their expected percentage of the asset. When this analysis is done, oftentimes, the party will realize they could spend more in litigation than the amount they hope to gain the dispute. Disputes over financial assets are best settled by compromise. No one is ever going to be right and since courts are not liberal in awarding attorney fees, even if a party’s position prevails, the party will still be out of pocket to get to that position. At a minimum, a party must consider at all times the cost of litigation. For each and every dispute, it is important to weigh these factors: the cost to bring the claim, the anticipated cost in legal fees for discovery, preparation and attendance at trial, the amount of time it will take to have the issue determined, the cost of any expert witnesses, the amount of time and money lost from work in order to prepare for court and attend a trial, the emotional and psychological toll both on the party and any witnesses, the importance of preserving the relationship if any with the other party and affect on any common relations. Sometimes, a party may have to give up pursuing being right for the art of compromise because it makes more sense financially and psychologically. Understanding this is something a party needs to do anytime they are involved in litigation.
Bifurcation is the process whereby a divorce decree may be granted prior to resolution of the economic rights of the parties. Where granted, the court retains jurisdiction over the parties’ equitable distribution claims as well as support claims. Section 3323 (c)(1) of the Divorce Code discusses where bifurcation might be available. If both parties consent to bifurcation, the court can enter a divorce decree indicating that they are retaining jurisdiction over the unresolved issues. In the absence of an agreement for bifurcation, the party requesting it would have to demonstrate why it is necessary. Specifically, the statute states compelling circumstances must exist and there must be sufficient economic protection for the other party.
The other requirement for bifurcation is that there are already grounds for divorce. In a no-fault divorce, this would refer to both parties having consented after 90 days or a two year period of separation having run. Whether there are compelling circumstances and sufficient economic protection is up to the court’s discretion. The length of time the parties have been separated and/or litigating the divorce matter can be a relevant factor. Tax consequences have been considered as a factor given the potential benefit of filing as individuals versus filing married separately. Finally, the court may consider the assets already in each parties’ possession as well as a support order to determine the appropriateness of a bifurcation request under the sufficient economic protection prong. Some of the policies behind allowing bifurcation is to let the parties move on with their lives and offer an incentive for prompt disposition of all issues.
Oftentimes when people are getting divorced, there are many emotional issues involved. In instances where one spouse did not want the divorce, or even when they did but they endured physical abuse, adultery, mental abuse, or just the trauma of change that a separation brings, counseling with a qualified therapist or psychologist can be invaluable. While the process of getting divorced brings with it all these emotions, the application of the law of divorce does not consider all these emotions in the actual outcome of the division of the assets or alimony. This can be extremely frustrating for someone who feels that they need to be compensated for all they endured. It is important to be able to separate the emotion of the divorce from the actual application of the outcome of the divorce itself and this is where a therapist can really help someone. Having someone to help through the emotional process is important to be able to be rational when it is time to come to a discussion of the settlement of the assets and alimony.
In Pennsylvania, pets are considered personal property in a divorce. Like any personal property, if they were a pet prior to marriage, they go to the party who owned the dog at the time of the marriage. If they were purchased during the marriage, then like any other personal property, either party is entitled to keep the pet. If the parties cannot agree, they can either go to arbitration or they can decide that neither party gets to keep the pet. It is unrealistic to expect that the Court will entertain a custody schedule for a pet in a divorce. In addition, the custody statutes only apply to children. If you want to share custody of the pet, it is something that is best resolved through mediation. Through mediation, the parties can decide what things they want to address to agree on and this can include an agreement to share a pet. If you opt for this, be sure to not only include the schedule for you put, but also who will pay the expenses or how they will be shared, including vet bills, food, regular shots, etc.
If you are getting divorced, or recently filed, you may wonder how long it is going to take to get your divorce. In Pennsylvania, there are two no-fault grounds for divorce which is the vast majority of divorces even if you think you have been wronged. If you are already separated for two years when you file for divorce and have no assets to divide and no alimony issues, it can take as little as two months to get divorced. If you have no assets and no alimony issues but have not been separated for two years, there is a mandatory 90 day cooling off period. In those cases, you can expect your divorce to take about four to five months.
When you do have issues, either alimony or division of assets, it is much more difficult to predict how long it will take. One of the reasons it becomes much harder to predict is that you cannot get divorced until you know what the assets are which is accomplished during discovery. If your spouse is non-cooperative and does not provide the necessary information, you may spend a considerable amount of time in and out of court attempting to get this information. If you spouse does not consent to the divorce, you could be waiting at a minimum two years before you can even get grounds for divorcee which you need before you get divorced.
If your spouse is cooperative and you have assets and alimony issues but you are able to come to an agreement at the beginning, the timing would be about the same as if you had no issues, two months if separated two years already and four to five months if you recently separated.
If you are getting divorced and you are entitled to a large inheritance, although the Court cannot distribute your inheritance as part of the marital estate (unless you put it into joint names), it still must be disclosed as part of the divorce process. Inheritance that you are entitled to prior to the divorce due, can hurt you in the distribution of the marital assets even though the inheritance is not marital. One of the factors that the court considers in determining how to distribute marital assets is the separate estate of the other party at the time of the distribution. If you have a large inheritance, this could lead the Master in Divorce or the Judge to decide that you deserve less of the marital estate than they otherwise would award you if you had no inheritance.
It is important if you think that your spouse may have an inheritance, that you gather that information prior to the divorce by way of public record of a probated estate, or by production request, or interrogatories.
When you are getting divorced, most debt, with a few exceptions, accumulated during the divorce is marital debt regardless of the name on the debt. The first step in approaching your debt is to find out what you have. I recommend that you start by obtaining your free credit report. You can obtain one from each of the three major credit bureaus once a year. It may be a good idea to stagger it every three or four months so you can pull one from each throughout the year. Review your credit report to obtain balances, or identify accounts you either did not know about or forgot about. You should also have a title clerk do a search on your real estate to make sure there are no unknown liens on your house.
Next, compile an organized binder with a list of all your debts and start organizing your statements. You will want to obtain the statements of balances as of the date of your separation. You will also then want to start saving copies of cancelled checks and statements after your date of separation so that you can seek credit for payment of marital debt where it is allowed. In addition, you want to save the statements to show you did not increase the marital debt.
If you find yourself in a situation where you are unable to pay all the debt, you may want to consult with a bankruptcy attorney who can not only help you determine if it is a good idea, but may also be able to guide you in recovering money from creditors.
When the parties are married, usually, one of the parties carries the health insurance for the parties and any minor children. The Court keeps the status quo as much as possible while the divorce is pending. If you are carrying insurance for your spouse, you cannot drop them until the divorce is final. Health Insurance is an issue that arises in support court through Domestic Relations. As long as health insurance is available at a reasonable cost through work, that parent will be required to provide health insurance for the children.
If both parents are working and both parents have health insurance available for the children through work, then the Court will look at the cost of the plans and the benefits provided to determine which makes more economic sense. If there is a plan that is relatively cheap but provides for a high deductible, this may not be the best plan if the children have routine issues. It is important to not only look at monthly premium, but the deductibles, the special medical needs of the children, the cost of the copays for a doctor visit, specialist visit, etc. in order to determine which plan is better.
Whichever plan is chosen is paid by the parent through their employment and a portion of the cost for the children is reimbursed through the child support order. If you are the parent who provides health insurance and are receiving child support, you will get this portion included in addition to your basic support amount. If you are the parent who provides health insurance and are paying child support, then it will appear as a credit off of the basic child support that you pay.
The party who receives child support will be required to pay the first $ 250 per year per child of unreimbursed, out of pocket medical expenses. Once the $ 250 dollar point is reached, the order will allocate any remaining bills to be shared in proportion to income. It is the responsibility of the parent receiving support to document and provide proof of expenses to the other parent. Failure to pay these expenses can result in a contempt order. If there are significant, routine medical expenses, you can request that they be factored into the basic support.
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