Tag Archive for: pennsylvania

A Brief Guide to Uncontested Divorce in Pennsylvania

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An uncontested divorce occurs when both parties to the divorce agree on all of the main issues of the divorce. A couple may agree to property division, alimony and child support. However, the couple will still need to file a number of forms with the court, whether or not it is contested.

In addition, one party in the divorce must have been a Pennsylvania resident for six months prior to the beginning of the divorce. There must also be grounds for the divorce.

Two no-fault grounds exist in Pennsylvania. To obtain a divorce by mutual consent, both parties must agree the marriage is irretrievably broken and wait 90 days after the divorce action is served on the other side. The other no-fault divorce is a separation in which one party does not consent to the divorce and the parties have lived apart for a certain period of time. For divorces in which separation occurred prior to December of 2016, there is a two-year separation divorce, and for those who separated after December of 2016 there is a one-year separation divorce. Less common is a divorce on fault grounds, which include desertion, adultery, endangerment, “cruel and barbarous treatment,” one spouse’s imprisonment for at least two years or for “indignities.”

For a consensual no-fault divorce, the couple must agree to a Property Settlement Agreement if there are assets or issues of alimony. This agreement will divide the marital property according to a mutually negotiated settlement and award or waive alimony. The agreement may also lay out custody and child support, or these can be left to separate agreements or to court. Custody and support in Pennsylvania are not necessary to resolve before a divorce is granted. If there are no assets and no issues of alimony, you will not need an agreement just the divorce.

If the couple cannot agree completely on all issues, the divorce may still be no-fault but the issues will need to be litigated. In a contested divorce a family court judge will decide all issues according to Pennsylvania state law. This includes dividing marital assets equitably (not necessarily equally) and ordering child custody according to the best interests of the child as well as child support. In Pennsylvania these are all heard separately.

An uncontested divorce is often the result of mediation. In mediation, both parties to the divorce use a trained mediator to agree to the basic terms of divorce. Each party is still represented by an attorney, but the issues are all decided out of court. Mediation can provide the divorcing couple with a less acrimonious process, one that is managed privately.

Whether the divorce is contested or uncontested, each party should be represented by an attorney. A divorce lawyer can protect your rights and interests in divorce and ensure that your transition to post-divorce life goes as smoothly as possible.

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Divorcing doesn’t have to ruin the family business in Pennsylvania

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Small businesses are the heart and soul of the economy in Bucks County and throughout the rest of the country. According to the Small Business Administration, approximately 90 percent of all of the businesses in the U.S. are family owned and run. Running a small family business comes with several advantages, like more convenience, flexibility and lower employment costs. However, things can quickly get complicated when the owners of the business decide to separate and divorce.

It all starts with the prenuptial agreement

Before a couple even says “I do,” they should already be planning for their financial future with a prenuptial agreement. This document acts as an insurance policy in case divorce ever becomes part of the equation. One of the mistakes that small business owners often make is not drafting this important document until it’s too late since they previously believed that divorce would never become an option. However, according to Forbes, over 50 percent of married couples in the U.S. eventually divorce so obtaining a prenuptial agreement should be a priority for all married couples, and those that own a business together in particular.

This agreement should be in writing, provide a full disclosure of the business’ assets and liabilities, be executed by both parties and without coercion from one side and documented in a recordable format.

Making it work after the divorce is finalized

Just because a marriage is ending doesn’t mean that the business has to go down along with it. Divorced couples can still stay in business together and be successful if:

  • They are rational and consider compromise.
  • They hire an independent business appraiser as part of the divorce proceedings.
  • They consider how their roles will shift in the workplace after they are divorced.
  • The business stays relatively the same and doesn’t undergo any big changes until after the divorce is finalized.

Although it can be a daunting task to split with a partner and still maintain a business, it can be done with a little work and a lot of communication. For example, according to Businessweek, a divorced couple that owns a bakery in the Boston area worth $2.5 million has been in business together for over 35 years. The couple, who were married briefly from 1979 to 1981, found that although their marriage didn’t work they were able to keep their business going out of admiration for the each other’s business skills.

If you and your spouse are considering divorce and are concerned about the future of your family business, contact an attorney in your area that can work through these concerns and ensure that you and your spouse are able to transition smoothly from being marital partners to business partners. You should also realize that a business has value and a competent attorney can assist in ensuring that both partners get value for the efforts they contributed to the business and find ways to separate while preserving the business.

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Do You have a Will in Place?

When you pass away, it is important to have a will in place so that your assets are distributed per your wishes. However, if you pass away without a valid will in place, your estate will be distributed pursuant to Pennsylvania intestacy rules.

If you are married at the time of your passing, the following rules apply:

  • If you do not have surviving parents or issue (i.e. children), your spouse will be entitled to your entire estate.
  • If you leave issue (all of whom are also issue of your spouse), then your spouse will get the first $30,000 and half of the remaining estate, and your children will split the other half of the estate.
  • If one or more of your issue are from a parent other than the surviving spouse, then your spouse will receive half and the issue will split to remaining half.Likewise, if you have no issue but your parents are alive, then your spouse will get half of the estate and your parents will get the other half.

If you do not leave a surviving spouse, then your estate is left in the following order:

  • Children
  • Parents
  • Siblings (or their issue)
  • Grandparents
  • Aunts and Uncles (or cousins)
  • Commonwealth of Pennsylvania

It is important to speak with an experienced attorney as the rules are very complex and often confusing.

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Can custodial parents in Pennsylvania move across state lines?

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Child custody matters in Pennsylvania

Divorce is hard on everyone, but it can be particularly difficult for the children. Young children especially have a difficult time understanding what is going on during divorce and may even feel as if they did something wrong. It is also hard for parents to get used to being away from their children sometimes. In many cases, there will be times when the children will be spending time, maybe even weeks or months, with the other parent. This is why it is important for parents to understand how custody laws work and what their options are. Generally, Pennsylvania law governs child custody and visitation when Pennsylvania is the child’s home state.

How is custody decided in Pennsylvania?

There are two main types of custody in Pennsylvania. Legal custody refers to the authority to make major decisions for the child including religious, educational and medical decisions. Physical custody refers to where the children will actually live. State law also allows for partial custody, which means the right to have the child reside with the noncustodial parent away from the custodial parent for a specific period of time.

Custody may be shared, meaning that both parents have legal or physical custody of the child. This will allow the child to have continuing contact with both parents. If parents do not have shared custody, the other parent may have visitation rights. If a parent has visitation rights, that parent has the right to visit the child but not necessarily the right to take the child from the control of the custodial parent.

To determine how custody is awarded, the court will look at the best interests of the child. The parents may come to an agreement themselves, but the court will always look at the best interests of the child before approving the agreement. The best interests of the child include such things as the physical and mental fitness of the parents, insofar as they affect the child, the ability to allow the child to continue to maintain a relationship with the other parent’s extended family, the preference of the child if the child is mature enough, opportunities for visitation and whether there is a history of abandonment or domestic violence. The court will look at each family as the individual unit that it is.

Can custody be modified?

Custody orders can be modified, but the court must be presented with evidence as to why the order should be modified. The parent wishing to modify the order must prove to the court why it has to be modified. The court generally favors stability for the child, and the parent must show that there is something in the home environment that negatively affects the child’s wellbeing. There must be a substantial change in circumstances and the best interests of the child that should require a change in custody.

Anyone dealing with child custody issues in Pennsylvania should contact an experienced family law attorney. These issues are hard to deal with on one’s own, and the resolutions of the issues are of utmost importance. An attorney can help parents dealing with child custody matters achieve their goals.

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Cohabiting and Ending Alimony in PA

Both cohabitation and remarriage are grounds for termination of alimony in Pennsylvania. In the case of remarriage, a court-ordered alimony award is terminated automatically upon the receiving spouse’s remarriage. However, if the couple settled outside of court, the divorce settlement must include a statement terminating alimony upon remarriage in order for it to end. Most divorce agreements in PA do include such a provision.

Cohabitation will also terminate court-ordered alimony, but it must be proven. Cohabitation in PA is recognized when a person is living with someone of the opposite sex who is not a close relative, demonstrates evidence of romantic or sexual relationship, and comingles assets or finances, thus approximating marriage.

If you believe your ex-spouse to whom you pay alimony is cohabiting and therefore believe your alimony should be terminated, you need to petition the court for an order to terminate alimony. File a motion in the court that handed down your divorce decree and be prepared to present evidence and witnesses in court to support your claim.

In order to gather evidence, look for pictures on social media or talk to friends or neighbors. You may have to hire a private detective who knows how to legally collect evidence of cohabitation – this may include surveillance, collection of documentation, and getting subpoenas to collect records. Our article Proving your Spouse is Cohabiting goes into more detail on this.

When you suspect your ex is living with someone and doesn’t deserve alimony anymore, it’s important to do a cost-benefit analysis. Consider the court and legal fees, the cost of hiring a private investigator, the time and effort associated with collection and court appearances, and the possible damage to relationships with friends and family. If your monthly alimony payment is not very large or burdensome and is awarded for a limited time, you know exactly how much alimony will cost you and can easily compare. You may find it’s not worth the expense or effort. If, however, your alimony payments are large or have no termination date stipulated by the court, you may determine it is worth the effort.

Child support is not automatically affected by termination of alimony. However, if you feel the cohabiting arrangement is not in the best interests of your children, you may wish to petition the courts for modification of custody.

 

These are decisions best reviewed with an expert in divorce law. if you suspect your ex-spouse is cohabitating, contact us here at Ulmer Law so we can help you determine the best approach regarding alimony and child custody.

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Is There Permanent Alimony in PA?

Alimony in Pennsylvania is usually awarded as rehabilitative or reimbursement alimony. As it sounds, reimbursement alimony helps to pay back a spouse for helping with some major expense of the ex-spouse, often education. Rehabilitative alimony is generally awarded for a fixed time period to give the receiving spouse time to receive training or otherwise become self-supporting.

However, there are times when the possibility of a spouse becoming self-supporting is unlikely. In these circumstances, a ruling of permanent alimony is possible.

The awarding of alimony depends on 17 factors defined by law. In summary, those factors include matters of standard of living during the marriage, income level or income potential of each spouse, and various available financial resources weighed against financial need. Also considered are marital misconduct, each spouse’s contribution to the care of minor children, the length of the marriage, and the health of each spouse.

The factors that weigh most heavily on the question of permanent alimony include:

  • The presence of long-term or permanent physical or mental disability or illness
  • The length of the marriage
  • The age of the spouse and the lack of marketable skills that would allow a spouse to be reasonably expected to attain self-support

The word “permanent” is somewhat misleading, because such alimony can in actuality be stopped if the payer or recipient dies or if the recipient either remarries or co-habits with a member of the opposite sex who is not a relative.

Permanent alimony can also be modified, if the circumstances of either spouse change substantially and are expected to be long-term.

When couples negotiate an agreement, they may be able to determine a fair alimony payment that takes into consideration their standard of living, budgeted expenses and income, and the financial opportunities of each spouse. Since the rules governing the awarding of alimony in Pennsylvania are not distinctly defined and there is no set calculation, the amount and duration of alimony awarded is entirely at the discretion of the judge, and therefore sometimes a surprise to both spouses.

An experienced divorce lawyer can help you negotiate an agreement that is fair to both parties, or when necessary, help you present your best possible position in court. Reach out to us here at Ulmer Law to discuss how we can help you.


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Do I need a Chapter 7 or Chapter 13 bankruptcy plan?

Consumers in Pennsylvania who are in need of debt relief assistance may benefit from filing for bankruptcy, but they should understand the two primary forms of consumer bankruptcy – Chapter 7 and Chapter 13 – to make the right decision for their needs.

When facing serious debt problems, many consumers can feel stuck and as though they have nowhere to turn. They can be afraid to answer their phone, read their email or get their physical mail for fear of being hounded by yet another debt collector.

The thought of filing for bankruptcy can be hard for some Pennsylvania residents to swallow in part because it can be difficult to know which type of bankruptcy to file for. Understanding how a Chapter 7 bankruptcy works and how a Chapter 13 bankruptcy works can help a person make the right choice for their situation.

Bankruptcy basics

Both types of consumer bankruptcies, Chapter 7 and Chapter 13, allow debtors to retain some assets as both plans identify a threshold for exemptions and items valued below the set level may be kept out of the bankruptcy process.

Another important point to understand is that both bankruptcy plans will evaluate a consumer’s income and expenses. Any money left after basic living expenses are paid may be deemed to be discretionary income.

Consumers should also be aware that some debts are not dischargeable via bankruptcy. Credit Karma explains these include spousal and child support, and some taxes.

Chapter 7 overview

In a Chapter 7 bankruptcy, a person’s nonexempt assets may be seized and used to repay creditors. Debt relief from this type of bankruptcy is achieved relatively quickly once the filing has been made, often within a few months. Any debt included in a Chapter 7 plan is discharged.

Chapter 13 overview

A Chapter 13 bankruptcy does not automatically discharge all included debts. Instead, it is more like a structured repayment plan in which the debtor makes monthly payments to a trustee for 36 to 60 months. Those payments are used to repay at least some of the money owed to creditors.

A person must have sufficient disposable income to qualify for this type of plan. A Chapter 13 bankruptcy may also give a homeowner the ability to avoid losing their home, but it is important for them to know that their mortgage would not be part of their bankruptcy plan. They must be able to catch up on any past due amounts and remain current with mortgage payments going forward while they are also making their Chapter 13 monthly payments.

Legal help is recommended

People who need guidance on how to get the right level of help for their debt relief needs should contact an attorney who is experienced in consumer bankruptcy. This will allow Pennsylvania residents to make educated choices that are in their best interests.

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Same-Sex Marriage & Divorce

Last month the U.S. Supreme Court found that the Defense of Marriage Act (DOMA) was unconstitutional as it violates the Fifth amendment in failing to provide due process for all. DOMA was initially enacted in 1996 and provided that the federal government could refuse to recognize same-sex marriages granted under state laws. This resulted in same-sex couples being denied federal marriage benefits available to heterosexual couples including, but not limited to, insurance benefits for government employees, social security survivors’ benefits, evaluating financial aid eligibility and filing joint tax returns.

While the federal government will no longer discriminate against same-sex couples who have been married in a state recognizing same-sex marriage, there may still be unique issues as it relates to divorce. For one, only states granting same-sex marriages will be able to do the divorces. With divorce there is often a residency requirement of six months or more meaning one of the parties may need to relocate and establish residency in a state that can preside over the divorce action before it can proceed. Further, if same-sex couples have children and subsequently separate, there are issues they can run into as far as custody. For example, PA custody laws state exactly which persons are eligible to even apply for custody rights and limit that group to the parents, grandparents, or third persons standing in loco parentis. Accordingly, if the non-biological parent hasn’t already adopted any children thereby making them a parent, they could run into issues establishing standing for custody. To date, PA does not recognize same-sex marriages. The ACLU did file a lawsuit to allow same-sex marriage in PA following the decision on DOMA.

Click here to read more on divorce.

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Morality Clauses in Family Law

Some states routinely include a morality clause as part of a divorce case. A morality clause would prevent the parties from doing certain things following separation. In family law, the clause usually prevents either party from having a new partner stay overnight while minor children of the former marriage are present. Texas is one of the states that still routinely uses morality clauses in divorce actions. A recent decision in Collin County, Texas upheld a morality clause from a 2011 divorce ordering that the wife’s new partner vacate the home where two children from the marriage resided.

While morality clauses are not commonplace in Pennsylvania, they can be negotiated as part of an agreement in custody matters. Pennsylvania custody law dictates that the adult household members of the parties should be examined as part of the best interests of the child analysis. In some circumstances there may be clear cut reasons for wanting to restrict new partners from being around minor children such as criminal history or drug and/or alcohol abuse. In other instances, the parties just don’t want new people introduced into their children’s lives too quickly or only for a brief period based on the argument that the children need stability. Where the parties are entering an agreement they can put whatever restrictions they both agree to, however, if left to a Judge a party is more likely to be successful if there is a justification for the restriction rather than just a preference of one of the parties.

Click here to read more on custody.

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