Tag Archive for: divorce

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.

 

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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.

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Jurisdiction/Venue in Divorce

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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.

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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.

 

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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

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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

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Pre-Nuptial Agreements

Given the statistics on the likelihood of divorce, many couples are opting to enter into pre-nuptial agreements to protect their rights in the event of a divorce. A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement would provide that each party retains anything they acquire in their own name and that anything marital or acquired jointly will be divided based on the divorce laws. A pre-nuptial agreement may also provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage.

Since a pre-nuptial agreement is a contract is must meet several requirements to be held valid. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. For these reason, the agreement should be signed well before the wedding to avoid any challenge to the agreement that a party was forced to sign because the wedding date was fast approaching. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation. Any challenge under the above listed causes of action will require a fact-based analysis with the standard being a preponderance of the evidence, or more likely than not. Overall, it is difficult to overturn a pre-nuptial agreement once entered into, however, it can provide some peace of mind if the parties do not end up living happily ever after.

Learn more on Prenuptial Agreements

 

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Health Insurance as part of Support

One frequent question in the context of divorce is what will happen to health insurance coverage in the context of a divorce. Generally, a spouse cannot drop the other spouse during the context of the divorce. Health insurance is often considered in the context of support and spouses are obligated to provide support for each other during the marriage. Once divorced, however, you cannot remain on your ex-spouse’s health insurance plan. If you are unable to obtain alternate health insurance on your own right away you can look into COBRA coverage.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives the employee providing the health insurance and their ex-spouse who has lost their health benefits the right to choose to continue health benefits for a limited period of time and under certain circumstances. A spouse who elects COBRA coverage following a divorce may be required to pay the entire premium for coverage, up to 102 percent of the cost to the plan. Additionally, COBRA coverage is only temporary and generally only lasts for 36 months. Only employers with 20 or more employees in the prior year who provide group health insurance are required to abide by COBRA and provide the opportunity for a temporary extension of health coverage.

If there are children between the parties, the children may remain under the health insurance coverage presently provided. There may be an adjustment to any child support award based on who is paying the premiums on the health insurance for the children. There is a 60 day window following the termination of coverage in which to notify the health insurance provider whether or not you are pursuing COBRA coverage.

Support

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Social Security Benefits in Divorce

A party in divorce may be entitled to collect social security benefits based on the earnings history of their spouse. Your spouse must already be at least 62 years old and receiving their social security benefits. Several conditions must be met before a party is entitled to their spouse’s benefits. First, you must have been married for at least ten years. Second, you must presently be at least 62 years old. There is an exception to the age requirement if your spouse is deceased in which case you can start collecting at 60 years old or 50 years old if disabled. Third, your social security benefits based on your earnings history must be less than your spouse’s benefits. You can only receive one social security benefit and should opt for whichever is higher. Finally, you cannot be presently married. There are exceptions to this rule as well. Specifically, remarriage is permissible if it occurs after age 60 or age 50 if disabled.

Be advised that even if you elect to receive benefits based on your spouse’s social security rather than your own, it will not in any way reduce your spouse’s benefits. You spouse will continue to receive the full amount of his or her benefit. In addition, you would be entitled to receive 50% of the benefit your spouse is receiving. If, however, your spouse pre-deceases you, you are then entitled to receive 100% of your spouse’s benefits. Further, any children under 18 at the time of your spouse’s death would be entitled to benefits based on your spouse’s benefits as well.

Divorcing After 50

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Military Deployment as Custody Factor?

The US House of Representatives just passed a bill that would prohibit family courts from considering military deployment as a factor when awarding custody. The bill was introduced by Representative Michael Turner, R-Ohio, and will now be headed to the US Senate for a vote. The rationale behind the bill is that individuals who are ordered into deployment by one branch of government should not be punished in the form of adverse custody decisions by another branch of government. Presently, family court judges can cite deployment as a factor in determining a custody order. The bill would only prohibit deployment as a factor if the individual being deployed cannot bring family members with them on their assignment. Further, the assignment must be between 60 days and 18 months in length.

There is already a law in place protecting military members in the context of divorce. Persons in the military service of the United States are specifically protected by the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SCRA), which, by making provision for the temporary suspension of legal proceedings and transactions relating to them, is designed to ensure that their civil rights are not prejudiced during their terms of service. The SCRA is not, however, a blanket moratorium on all divorce actions against servicepersons. Its protections only come into play when the defendant is prevented or hindered by his or her military service in defending the divorce action. An affidavit of non-military service is a commonplace requirement in a divorce action wherein the plaintiff must submit a signed affidavit indicating the defendant is not in military service in order to move the divorce forward. The defendant can waive the protections of the SCRA and proceed with a divorce while in military service if they so choose.

Military Divorce

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