Tag Archive for: divorce

Divorcing and Preserving the Proceeds from the House Sale

If you are getting divorced and need to sell your house as part of the divorce process, it is important to keep your attorney informed. Oftentimes when you go to settlement, if you do not have an agreement in place, the proceeds will be split equally. As part of the divorce process, you can obtain a court order either through an agreement with the other spouse or through the court that preserves your proceeds until such time that an agreement on divorce is reached. In Pennsylvania, assets are distributed equitably, not equally. Usually the spouse who earns less money at the time of the divorce receives more than half the overall assets, although there are many factors that determine equitable distribution. If the parties can agree, it may be best to distribute equally that portion of the proceeds that are not in dispute and only hold the amount disputed in escrow or in joint names requiring two signatures. You should have this agreement or court order put in place prior to closing and if possible, prior to signing your agreement of sale.

For more information, visit: /Family-Law-Divorce/Division-of-Marital-Property/

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What happens to the ring when the wedding is called off

Sometimes an engagement does not always result in a happy ending. If the couple, for any reason, does not get married, what happens to the ring? Oftentimes, a woman who has been dreaming of getting married feels justified keeping the diamond engagement ring that was given to her. These feelings are especially strong when she is not the one who called off the wedding. If she is in Pennsylvania, however, the law does not support her. In the event an engagement does not result in a marriage, the engagement ring legally belongs to the giver. It does not matter who calls off the wedding. The ring is a gift conditioned on a promise of a wedding. When the wedding does not take place, the ring must be returned. If the ring is not voluntarily returned, filing an action through court may be the only route possible. In either event, it may be wise to make sure the diamond is examined to ensure that it is the same diamond that was given before the wedding was called off.

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Self-love on Valentine’s Day

Self-Love is important. For those who are separated or divorced, remember that loving yourself is a way you can make Valentine’s special for yourself. Enjoy a day at the spa, read a good book, spend time relaxing in a bathtub or doing something you enjoy. Maybe go see a new movie and celebrate with friends or children or family. No one can make you happy but yourself and this is a day to celebrate the love you have for yourself just as much as it to celebrate the love you have for others.

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NJ Divorce on the Papers

Certain counties in New Jersey will now allow a divorce to go through without requiring appearance in court. This option is available if there are no issues raised other than the divorce. For example, there are no custody, support, or equitable distribution issues. Alternatively, if the parties reach an agreement on all outstanding issues, the agreement can be incorporated with the request for the divorce and the appearance requirement can still be waived. A final judgment of divorce will need to be prepared. The judgment should include whether an agreement is being included. The judgment should also cover the minimum requirements for divorce such as appropriate jurisdiction based on residency. Further, if wife intends to retake her maiden name, that should be included in the proposed final judgment.

In addition to preparing the judgment of divorce, both parties should submit supporting certifications. The certifications should go into further detail about the facts establishing the divorce action. The certification should set forth the marriage date of the parties and the period of residency. The cause of action should be stated (e.g. irreconcilable differences, separation, etc.). The certification should state if there are any children between the parties and if so, their names and date of birth. Again, if an agreement has been reached regarding ancillary issues, the agreement should also be referenced in the certification. Finally, the parties should indicate they are waiving their right to trial in favor of having the divorce granted without personal appearance.

Click here to read more on divorce in New Jersey.

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Dividing a Business in a Divorce

Oftentimes in a divorce, one of the assets that the family court in Pennsylvania must decide how to distribute is a business.  In most instances, the Court is not distributing or dividing the control of the business but rather the value. If the business is premarital, the increase in value during the marriage is considered for purposes of the divorce.  In order to determine the value of the business, the parties can either stipulate to the value or they will need what is known as a business valuation.  There are generally three different methods used to value a business and one method or a combination may be appropriate depending on the type of business.  If the spouse who does not control the assets needs to get a business valued, it may be necessary to petition the court during the course of the divorce to request the other spouse to advance the cost of the business valuation.  A business valuation is neither simple nor inexpensive.  

Due to the cost of a business valuation, some parties make the mistake and assume the business does not have any value.  While that may be true in some cases if the business is solely due to the efforts of the spouse, two questions to consider are 1) whether the business has any hard, physical assets that could be liquidated or sold and 2) whether the business could be successfully sold to a third party.  If the answer to either of those questions is a yes, then there is some value to the business.

Depending on the value of the business and other assets of the marriage will determine how the business factors into the distribution.  If an offset with other assets can be accomplished, it may be best to do an offset of the value.  In cases where the business is the most valuable asset, a structured buyout will be necessary.  This may involve a combination of a lumpsum and payments over time.

For more information see:

/Family-Law-Divorce/Divorce-Involving-Business-Owners-the-Self-Employed/

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Social Security Benefits when Divorced

When you get divorced in PA, social security is not considered as an asset in divorce. It may be considered as income for purposes of alimony but not as an asset.  If you were a spouse who did not work and did not contribute to Social Security or if you worked part-time and your benefit is not very much, you should inquire as to whether you are eligible for spousal benefits.  If your ex-spouse worked and contributed to Social Security, you may be eligible for Social Security.  In order to be eligible, you must be unmarried at the time you apply for benefits. Even if you are divorced in between marriages from someone else, you may still be eligible to collect on the first spouse if you meet the requirements.  You must be at least 62 years.  You must have been married to the spouse for at least ten years to collect.  If your spouse is not yet collecting, you can still collect as long as you have been divorced for at least two years.  If you wait until full retirement, you will receive half of what your ex-spouse’s full retirement benefit is.  Your collection of the half of their benefit does not reduce their full benefit.  They will still be eligible for their full retirement benefit.  Social security no longer sends statements out in the mail of your earning history but they are easily accessible online at www.ssa.gov and you should set up an account for yourself to view online.  To learn more about your rights if you are divorced visit: 

http://www.socialsecurity.gov/retire2/divspouse.htm.

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Date of Separation in a Divorce

When you get divorced in PA, the date of your separation is no later than the date that a divorce is filed. It can be earlier but the burden will upon the party seeking an earlier date to establish it with evidence should the other spouse contest it. The date of separation is an important date when it comes to determining what is an asset and what is a debt. Assets and debts accumulated up until the date are marital. This means if you file for divorce or separate you will want to know what the balances are on your debt at that time. It does not matter whose name the debt or asset is in. If your spouse has credit cards, even if you did not know about them during the marriage and they can produce statements showing a credit card balance on the date of separation, it gets included. If you think your retirement is your own, again you will be mistaken. Retirement assets up until the date of separation are marital assets even if they are only in one person’s name. There are exceptions on some assets that are passive such as a house where the value is determined as of the date of distribution. Much money and time is spent in a divorce figuring out what the assets and debts are and what the balances are. It is a good idea to keep records, when you marry, when you separate and each month after you separate. It will save much time and much money to stay organized.

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Putative Spouse Doctrine

The putative spouse doctrine provides an equitable remedy where one or both spouses believed in good faith they were married and subsequently discovered the marriage wasn’t valid. The spouse that is unaware of any impediment to the marriage is the putative spouse. The equitable remedy provided more or less mirrors the relief that would be available if the parties were divorcing from a valid marriage. The purpose of the doctrine is to protect those who have an honest belief that they are married from being denied the economic and/or status related benefits of marriage including potential property division and support.

The doctrine is recognized in many states across the country as long as the key elements are met. First, there must be a proper marriage ceremony. Second, one or both parties must have a good faith belief the marriage is valid. Good faith is defined as an honest and reasonable belief. If either spouse receives information concerning the validity of the marriage, they have a duty to investigate further.

Click here to read more on division of property.

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Annulment

An annulment proceeds similar to a fault-ground divorce in terms of procedure. First, it must be established that an annulment is appropriate. Pennsylvania acknowledges annulment for void and voidable marriages. Under 23 Pa C.S. 3304, void marriages include those where (1) one of the spouses is still in a former marriage, (2) the parties are too closely related, (3) either of the parties was incapable of consenting to the marriage, usually due to mental disorder, or (4) either of the parties was under 18 if claiming a common law marriage. A void marriage is one that is invalid because it violates some public policy. In contrast, a voidable marriage is presumptively valid unless a party challenges it.

23 Pa C.S. 3305 lays out the grounds for annulment of a voidable marriage. Grounds for voidable marriage include: (1) where either party is under 16 without court approval, (2) where either party is 16 or 17 without court approval or parental consent, (3) where either party was under the influence of alcohol or drugs at the time of the ceremony impacting their ability to consent, (4) either of the parties is incurably impotent, or (5) there was fraud, duress, coercion or force to secure the marriage. There is a sixty day time limit to pursue an annulment from the ceremony date for several of the voidable grounds. Additionally, regarding void and voidable marriages, the right to annulment is lost if there is subsequent confirmation of the marriage after becoming aware of the potential grounds for annulment. Where an annulment is to be granted, equitable distribution and potential support claims may proceed just as in a divorce action.

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Fault Grounds and Defenses

Pennsylvania has a mixed approach to divorce in that it still allows fault grounds in addition to no-fault grounds. 23 Pa CS 3301(a) lists the fault grounds for divorce as follows: (1) willful and malicious desertion, without reasonable cause, for the period of one or more years; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment following conviction 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.”

Procedurally, when a fault ground is alleged the first step is to establish the fault has occurred. A motion for appointment of a master would need to be filed to enable a master to hear testimony on the claims. There are defenses or bars to fault grounds which could be raised. Recrimination is a defense on the basis that there is no innocent spouse and both spouses are guilty of faulty behavior. Provocation occurs where the “innocent” spouse provoked the other spouse into the faulty conduct. Comparable to provocation, connivance is a defense where it is alleged the “innocent” spouse helped to manufacture the fault grounds which are being sought. For example, on a claim of adultery, the innocent spouse hired a prostitute for their spouse. Finally, condonation is a claim that the fault ground has already been forgiven by the innocent spouse and the marital relationship resumed after the offense. After the fault grounds are established, the divorce matter can proceed on other ancillary claims such as equitable distribution.

Click here to read more on grounds for divorce.

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