Tag Archive for: divorce

Reunification Counseling in Custody Cases

Reunification counseling is a process meant to rebuild a relationship. Often times, reunification counseling will be used in the context of a custody dispute to reintroduce and/or reinforce the relationship between a parent and their child. There are several reasons why reunification counseling may become necessary. It could be a situation where one parent was not involved in the child’s life for a long period of time and so some type of counseling becomes helpful in assisting both parties ease back into a normal relationship. Alternatively, a course of reunification counseling can be used after a sudden change in relationship has caused damage or anger. For example, a child may not understand why his or her parents have separated and may show anger or resentment towards the parent who moved out of the home. Or perhaps, it is not even the child initiating the feelings of resentment or anger, but the other parent who then projects those same feelings onto the child.

Reunification counseling can be viewed as a more collaborative approach to re-establishing a relationship as opposed to just having the court force certain periods of visitation when the child may not be willing or emotionally ready. This is especially a concern when dealing with teenagers. A custody order forcing visitation with the other parent may serve a temporary goal but ultimately result in lifelong resentment once the child is over 18 and free to make his or her own choices. It may be more beneficial to be patient on the front end in exchange for a healthy relationship that has the potential to last past their “childhood” years. It is the role of the reunification therapist to facilitate the process with the end goal of repairing the relationship going forward. If you are facing a high conflict divorce or separation or have been inactive in your child’s life for a certain period of time and feel you may need help rebuilding the relationship, consider reunification therapy as an option to get the relationship back on the right foot again.

Click here to read more on custody.

by

No Fault Divorce

The divorce rate reached an all time high in the 1970’s due to the introduction of no-fault divorce. A no-fault divorce meant that the parties could get a divorce without having to prove any wrong-doing in court. Essentially, all the parties have to do for a no-fault divorce is indicate the marriage is over. Prior to the influx of no-fault divorce, parties had to prove that the requirements for a fault divorce were met. Fault grounds for divorce in Pennsylvania include desertion, adultery, cruel and barbarous treatment, bigamy, imprisonment, and indignities. The majority of divorces will go through on the basis of no-fault since it is easier to litigate and often times there is no benefit in the outcome of the divorce to pursuing a fault ground for a divorce.

To move forward with a no-fault divorce in Pennsylvania, 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. No-fault divorce became available in Pennsylvania in 1980 when the Divorce Code was revised. Originally, a separation period of three years was required but that has since been reduced to the two year separation period currently required.

Click here to read more on Divorce.

by

PA Children’s Trust Fund

Most family law actions that will be filed include a filing fee for the initial complaint or pleading. A part of these filing fees go to fund the Pennsylvania Children’s Trust Fund (CTF). This fund has received approximately $40 million dollars from family law filing fees since inception. The initiative of the CTF is to prevent child abuse and neglect across the state. The main emphasis of CTF is to put prevention programs in place to decrease child abuse and neglect overall. The CTF grants its money to local community programs with the same initiatives. It is up to the respective community programs to apply with CTF to see if they are eligible for a grant. Currently, upwards of 250 community based programs across the state have received grants to aid in the fight against child abuse and neglect.

The PA CTF recently established a supporting organization, “Friends of the Children’s Trust Fund.” The goal of this supporting organization is to raise additional awareness and financial support for the mission of the CTF. The fund focusing on prevention due to the negative and potentially long-term impacts of abuse and neglect including, but not limited to, poor physical, mental, and emotional health, social difficulties and behavioral problems. There is also a corresponding economic impact associated with dealing the aftermath of abuse and neglect making an even greater case for the importance of prevention. Many other states across the country also have a similar fund to aid in the prevention of child abuse and maltreatment.

Please visit pactf.org for more information on the Children’s Trust Fund in Pennsylvania.

by

Consequences of Bankruptcy in Family Law

Financial obligations in the context of a divorce can create a strain on the party ordered to pay. If a party is simply unable to keep up with all their obligations they may consider filing for bankruptcy. A bankruptcy filing generally results in an automatic stay meaning the party filing for bankruptcy is protected from creditors seeking payment from them until the bankruptcy is resolved however there are exceptions to this general rule. 11 U.S.C § 362 (b) provides that the filing of a bankruptcy petition does not operate as a stay for any proceeding regarding the establishment or modification of an order for domestic support obligations, concerning child custody or visitation, or for the dissolution of a marriage (including decree with court order or property settlement agreement except to the extent that such proceeding seeks to determine the division of property that is property of the estate). Accordingly, a party may not seek to dismiss all their obligations in a family law matter by filing for bankruptcy. Pennsylvania case law reiterates this point. In Schulze v. Schulze, 15 B.R. 106 (1981), the court held that “there can be no doubt that the state court action as it pertains to divorce and the custody of the minor children should not be stayed.”

Another component of filing for bankruptcy is the potential for certain debts to be discharged, meaning the obligation no longer needs to be fulfilled. 11 U.S.C. § 523(a)(15) provides that a debtor cannot discharge a debt to a spouse, former spouse, or child of the debtor that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree, or other order of a court of record. This statute is interpreted to mean that a party cannot discharge an obligation to provide support. A party used to be able to discharge an obligation to split assets and/or debts under a property settlement agreement or order on equitable distribution. In Deichert v. Deichert, 402 Pa. Super. 415 (1991), the court discusses which marital obligations are dischargeable or non-dischargeable in bankruptcy and concludes the court is to look at the intent of the parties and/or the effect/function of the obligation since debts under property settlement are dischargeable but support obligations are not. However, amendments to the bankruptcy law in 2005 provided that any order arising under any family law docket including equitable distribution is no longer dischargeable.

by

Hurricane Sandy

Our area is still recovering from the aftermath of Hurricane Sandy. The storm’s strong winds and rain caused widespread damage over a large area of the nation. Specifically, southeastern Pennsylvania is still dealing with power outages due to downed trees and wires. Many government offices, schools and local courts were forced to close Monday and Tuesday of this week. At this point, all local courts in southeastern PA are open and may be contacted as far as any matters that need to be rescheduled. Our office hopes everyone has remained safe during the storm. We will continue to work hard to assist you in all your family law needs as our communities continue to recover from the aftermath.

 

by

Qualified Domestic Relations Order

A qualified domestic relations order, or QDRO for short, is a document often used in the context of splitting assets in a divorce to rollover a portion of one party’s retirement plan/benefit to the other party. QDROs are frequently utilized when pensions, 401ks and other retirement benefits have been classified as marital in nature and therefore up for distribution at the end of the marriage. The benefit of a QDRO is that it allows a tax-free transfer of the funds from one party to their new or soon-to-be ex-spouse. The receiving spouse would then be taxed as they withdraw the money as the tax laws provide. The exact nuances of how the plan/benefit is split and what options are available will vary based on the type of plan. For example, it may be that the party receiving a benefit as a result of a QDRO, often termed the alternate payee, cannot begin to do so until the initial participant in the plan begins to do so. The receiving party may or may not be able to designate an alternate successor if they die before the benefits begin to pay out. Or, the plan may provide the receiving party can only designate a survivor beneficiary that would be able to receive the balance of their portion of the benefit if they have started receiving the benefit before they die. The receiving party’s benefit may or may not be affected by the death of the initial participant or his/her early withdrawal penalty, if applicable.

It is always advisable to review the procedures for the specific plan you may need distributed to understand what their rules and policies are when it comes to splitting a participant’s benefits via QDRO in the context of a divorce. You will also likely benefit from having an attorney review the terms of the QDRO as well before signing off on it and submitting it to the plan. Finally, most plans have very specific requirements as far as how the language of the QDRO is to be worded in order for it to be accepted and processed. At a minimum, a QDRO should identify the parties, the plan at issue, and the amount going to the receiving party either as a lump sum or a percentage of the total benefit. It is wise to enlist the services of a company that routinely drafts QDROs to ensure the language is correct and all requirements are met.

Click here for more information on dividing retirement benefits.

by

Jurisdiction/Venue in Divorce

,

Under Pennsylvania law, one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes her meals, receives mail, and stores personal possession.

Generally, an action may only be brought in the county where one of the party resides. There are two exceptions allowing a divorce action to proceed in a different county including by mutual agreement of the parties in writing or by participating in the action started in a different county. If two divorce actions are commenced within 90 days of each other, the county where a party resides or where the last marital residence was located gets to determine which county should handle the matter. If neither county is the location of the last marital residence and no party resides in either county, the county that received a complaint in divorce first can make the determination as far as which county will proceed.

Parties should be careful about agreeing to, or participating in, divorce actions outside of their home counties if property distribution and/or other issues such as custody and support may be raised during the divorce. A divorce action may need to be transferred to the county where the bulk of the property is located or where the children reside for custody or where one of the parties reside for support. This will likely result in the expense of having to file a new complaint in the appropriate county as well as the expense and delay of petitioning to have the matter transferred. On the other hand, parties with no issues relating to the divorce may benefit from a cheaper filing fee by choosing a county other than their own for the divorce action.

Click here to read more on Divorce.

by

Contempt of Court

Be it divorce, custody or support, once a court order is put in place, any violation of that court order can be considered contempt. For example, if a custody order provides that the parents are to exchange custody every Wednesday and the exchange never occurs to the fault of one party, the faulting party is in contempt. The consequences of being held in contempt can vary. 23 Pa. C.S. 5323 (g) regarding contempt of custody provides for any one of the following as punishment: imprisonment for a period not to exceed six months, a fine not to exceed $500, probation for a period not to exceed six months; and/or counsel fees and costs. In practice, based on the severity of the case, the Judge may just give a verbal warning or may suspend custody until the court order is complied with.

Contempt of a support order occurs when a party fails to keep up with their support hearing. At a support contempt hearing, the non-compliant party will have an opportunity to explain why they are not current with their support. In the event they are unemployed, the court may inquire into why they are not working, their physical ability or inability to work, and what attempts to find employment have been made. There may be contempt of an order in a divorce matter both while the divorce is still pending and after the divorce. For example, if one party succeeds in getting exclusive possession of the home during the divorce and the other party attempts to re-enter the home, there is a basis for contempt. Post-divorce contempt usually involves one party failing to follow through with their obligations under a settlement agreement or divorce judgment.

 

by

Pet Custody Battles

Many people consider their pets as members of the family and accordingly, when the family breaks up, custody of the pets can become an issue. The Today Show recently covered a story of a man who had already spent $60,000 in a custody battle over his dog previously shared with his ex-girlfriend. While pets may be considered members of the family from the perspective of the owners, the courts in Pennsylvania deal with pets the same way as they deal with other inanimate personal property in the event of a divorce.

First, a count for Equitable Distribution must be raised in the context of a divorce in order to get the court involved in dividing any property. There are generally two options available when it comes to how property will be divided. First, the parties can reach an agreement on how they will divide property and submit this written agreement to the court so that in the event either party does not comply, the disgruntled party can file for contempt and the court can assist in enforcing the agreement. The other option when it comes to property division is to go to a hearing and let the court decide. If you go this route, the court will likely give the pet to one spouse or the other just as it would any other personal property such as furniture or TVs. It is not likely to get involved in creating a schedule to continue to share the pet post-divorce.

The great thing about an agreement is that it can be as specific as the parties want. The courts rarely get involved in the content of agreements that are knowingly and voluntarily entered into and treat them as binding just as they would any other contract. Therefore, an agreement could provide for a custody schedule more similar to one you would normally see with children. For example, the spouses may decide to split custody of the family pet and lay out the terms of when they will exchange custody back and forth (i.e. every two weeks, every month, etc.). Or, the parties may even agree that the schedule for family pet will coincide with the schedule for their minor children if applicable.

More on Dividing Property

Today Show story on pet custody battle

by

Alimony 101

Alimony is support paid to an ex-spouse following the divorce decree. The amount of alimony is largely based on the incomes of the parties but may also be affected by the distribution of the other assets, if any. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. As previously alluded to, an alimony provision within an agreement between the parties may not be modified in the absence of a specific provision allowing such a modification within the agreement.

Generally, the length of alimony is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate. If the parties include alimony as a part of their own settlement agreement, they are free to set the amount and length of the alimony as they so agree. Adultery by a party will act as a bar to alimony.

The duration of alimony should be limited to a reasonable period of time for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by obtaining appropriate employment or developing an appropriate employable skill. A party seeking a longer or shorter duration of alimony can petition the court to modify its order based on the factors of Section 501 (c).

The factors to be considered by the court include: (1) The relative earnings and earning capacities of the parties; (2) The ages, and the physical, mental and emotional conditions of the parties; (3) The sources of income of both parties including but not limited to medical, retirement, insurance of other benefits; (4) The expectancies and inheritances of the parties; (5) The duration of the marriage; (6) The contribution by one party to the education, training or increased earning power of the other party; (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home; (8) The standard of living of the parties established during the marriage; (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) The relative assets and liabilities of the parties; (11) The property brought to the marriage by either party; (12) The contribution of a spouse as homemaker; (13) The relative needs of the parties; (14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

More on Alimony

by