Tag Archive for: support

Earning Capacity

In a support matter, the incomes of the parties will be used to calculate an appropriate award based on the support guidelines applicable throughout the Commonwealth. At the initial appearance for a support matter, both parties are asked to bring in proof of their income in the form of W-2s, tax returns, pay stubs, or other documentation of income received. If a party is unemployed or underemployed, the rules specify that an earning capacity may be imputed. Pennsylvania Rule of Civil Procedure 1910.16-2(d)(4) explains the first step is a finding that a party willfully failed to obtain or maintain appropriate employment. Involuntary reductions in income (e.g. lay-offs or unemployment due to illness or disability) generally do not trigger earning capacity arguments.

If the reduction in income is seen as voluntary or willful (e.g. took a lower paying job or cut hours) then the court may impute an income consistent with that party’s earning capacity. Factors to consider when trying to identify an appropriate earning capacity include age, level of education, special training/skill set, work experience and prior earnings history. A Judge must explain the rationale behind any earning capacity that is assessed against a party. The earning capacity provision exists so that parties who have a support obligation cannot escape their obligation by purposely leaving their jobs or otherwise lowering their income. Under- or un-employed parties seeking to avoid imputation of an earning capacity should be prepared to show they have taken good faith efforts to secure comparable employment and that any reduction in income was for a valid purpose.

by

PASCDU

If you are paying or receiving support in Pennsylvania you are likely dealing with PASCDU. The acronym stands for the Pennsylvania Statewide Collection and Disbursement Unit. They are responsible for collecting support from the payors and giving support to the payees. Payors are warned at the time an award is established that they will not receive credit for direct payments to the payee and all payments must go through PASCDU. Payors should receive information on sending payments to PASCDU at their support conference or hearing. Local domestic relations offices may be able to accept payments as well. Wage garnishment is the preferred method of collection for support. Once it is set up, payors do not need to worry about sending payments in any longer as the support due will be automatically withheld from their pay.

Payees should receive information on receiving payments from PASCDU at the support proceeding. They can elect to receive the money on an electronic card similar to a debit card or they can provide their bank information to allow for direct deposit. If electing to receive support via direct deposit, the payee must have their bank complete an enrollment form. PASCDU keeps track of all payments in and out and will generate contempt petitions if payments fall behind. For parties having issues with support the first step to take is to contact your local domestic relations office. PASCDU is located in Harrisburg. Additional information is available online at https://www.humanservices.state.pa.us/CSWS/

by

Mortgage Payments

A jointly owned property is frequently addressed in family law actions. It may be defined as a marital asset hence subjecting it to equitable distribution. Financial responsibility for the property may also be a factor in the context of a support action. If only one party is making payments on a marital residence while a divorce is pending, they may be able to seek a credit for payments made. This may be the case if both parties are residing in the home or if the party not contributing to the mortgage is residing in the home. Mortgage payments may also be considered in the course of establishing a support award. Pennsylvania Rule of Civil Procedure 1910.16-6 covers adjustment to basic support awards and allocation of additional expenses. Under sub-section (e) mortgage payments, real estate taxes, and homeowners’ insurance may need to be considered. Second mortgages, home equity loans and other obligations secured by the marital residence may be considered but are within the discretion of the court and addressed on a case-by-case basis.

The expense to maintain the marital residence can be considered if the total expense exceeds 25% of the obligee’s (party receiving support) or obligor’s (party paying support) income. If the obligee is in the marital residence and paying the mortgage, the court would look to see if the mortgage payment exceeds 25% of the obligee’s income after considering the basic support award. If the mortgage is still more than 25% the court can direct the obligor to assume up to 50% of the excess resulting in an increased support award. Obligors can also receive assistance with the mortgage if they are the party in the marital residence or responsible for the payments. The basic support award is subtracted from the obligor’s net income first. If the mortgage payment is more than 25% of the remaining net income available to the obligor, the court may make a downward deviation in the basic support award. The mortgage deviation is only applicable prior to final equitable distribution in the divorce matter. Additionally, the courts are more likely to allow for a mortgage deviation in cases where the home is ultimately going to be sold as opposed to a case where one party intends to keep the residence post-divorce.

by

Treatment of Veterans’ Benefits

Former military members may be eligible to receive a number of different veterans benefits from the Department of Veterans Affairs (VA). Possible benefits include disability compensation, pension benefits, life insurance, educational benefits and more. Veterans benefits cannot be divided as an asset in a divorce case. This is due to the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Pennsylvania Divorce Code confirms this rule. Under 23 Pa. Section 3501(a), discussing the definitions for marital benefits, veterans’ benefits exempt from attachment, levy or seizure are defined as non-marital. Additionally, the veteran gets to decide how to use educational benefits and who to designate as beneficiary for their life insurance.

Veterans benefits can be classified as income for purposes of determining a child support award; specifically, disability payments. The disability payments are intended to compensate the veteran for lost earnings and to support their family. There are restrictions as to when veterans’ benefits can be garnished. In the event the benefits cannot be garnished, that does not mean that the veteran is not still responsible for the support payments as determined by the guidelines.

Copies of the current support order and records of any arrears owed and former payment history will need to be supplied to the VA to review as evidence when making its determination on whether garnishment is appropriate and a reasonable amount to be garnished.

by

Alimony

Alimony is support paid to an ex-spouse following the divorce decree. The amount of alimony is based on the incomes of the parties but may also be affected by the distribution of other marital assets, if any. 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. 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. Parties to a private agreement may stipulate that alimony is non-modifiable in amount, duration, or both.

If a court is making a decision on an alimony award they must consider the factors listed in Section 3701 of the Domestic Relations statue. 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. Adultery can serve as a bar to alimony.

by

APL

Alimony Pendente Lite, or APL, is spousal support while the divorce is pending. A party may petition for APL at the same time as the divorce complaint or any time thereafter prior to the entry of a final decree. The purpose of APL is to ensure each party has the ability to sustain themselves during the divorce. A party seeking APL should be ready to prove they lack sufficient property to provide for their reasonable means and are financially unable of self-support during the pendency of the divorce litigation. It is the income-dependent spouse who would have the opportunity to receive APL. The court may consider the duration of the marriage in making any award. This is to ensure one party does not benefit from a significant support award in the context of a very short marriage.

In a case with children, the APL award will be 30% of the difference of the parties’ net incomes after the child support obligations of the case have been applied. In a case without children, the APL award will be 40% of the difference of the parties’ net incomes. An award of APL is not appealable until after the divorce is final. The reason for that being that APL is not considered a “final order” as is required before an appeal can be taken. APL and spousal support are calculated the same way however, APL can be seen as preferable to spousal support in that there are no defenses to APL whereas for spousal support any conduct that would constitute fault for a divorce matter can result in an inability to receive spousal support. Spousal support can be filed as soon as parties are separated and is not contingent on a divorce action pending.

by

Filing for Support

23 Pa C.S. Section 4321 provides that married persons are liable for the support of their spouse according to their respective abilities to provide and parents are liable for the support of their unemancipated children under 18 years of age. Domestic Relations is the branch of the court that handles support applications. An application for support can be filed with their office in the county where you reside or where the payor resides. An application can also be initiated online through the support program website. Support between spouses is based on the difference in income. 40% of the difference in income can be awarded in a case where there are no children. 30% of the difference in income is appropriate where there is also a child support component. Child support in Pennsylvania is based on statewide guidelines established by the Pennsylvania Supreme Court. The guidelines are based on an “Income Shares Model” such that the guideline amount is shared by the parties based on percentage of custody time as well as percentage of income.

Once an application for support is filed a conference is scheduled. Both parties are instructed to bring relevant documentation to the hearing including pay stubs, last filed tax return/W-2, proof of health insurance coverage and costs, childcare expenses, etc. At the conference an officer will use the income information to complete a calculation and advise of the support award. If there are any issues concerning incomes or expenses or the suggested amount of support, the parties have the option to request a hearing for further review. Though it may take several weeks to get to the conference following submission of an application for support, support awards are retroactive to the date of filing so that applicants can receive support for that time despite the wait for a court date.

by

Unreimbursed Medical Expenses

You may be able to get reimbursed for medical expenses if you have an existing support order. Unreimbursed medical expenses may be allocated between the parties in a support matter in proportion to their income under Pa. R.C.P. 1910.16-6. The court may include the expenses within the support order or direct that it is paid directly to the party receiving support or their healthcare provider. The first $250 per year is the responsibility of the party incurring the expense. This $250 threshold is per person for orders that cover multiple persons. The parties will only need to share expenses that exceed $250 per year per person. Proof of the unreimbursed expenses should be timely supplied to the other party but must be supplied to the other party and Domestic Relations no later than March 31st of the following year. Parties are certainly encouraged to work things out amongst themselves prior to this deadline.

A limit may be placed on the amount to be reimbursed if it would otherwise be excessive. Domestic Relations can assist in the collection of unreimbursed expenses if the other party still refuses to pay their share after receiving timely documentation of the expenses. Untimely submission of unreimbursed expenses is left to the discretion of the court as far as if they will still be allocated between the parties. Medical expenses that are eligible for reimbursement include co-pays and expenses for reasonable, necessary supplies or services. Surgical, optical, dental and orthodontic expenses are also included. Some expenses are excluded by Pa. R.C.P. 1910.16-6. Expenses that are not eligible for reimbursement include cosmetic, chiropractic, psychiatric and psychological expenses. These expenses may ultimately be included by mutual agreement or specific order of the court.

by

Physician Verification Form

Each party’s income is relevant in the context of a support action. Pennsylvania can assign an earning capacity for parties who are voluntarily unemployed or underemployed. There are recognized exceptions to avoid having income imputed if you do not work. One of those exceptions is if you are physically incapable of working. In the event that a party in a support matter asserts an inability to work due to medical issues, the support rules require that a physician verification form be completed. Pursuant to Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1910.29 (b), the physician verification form should be completed by the party’s physician and submitted at the time of the support conference. A sample of the actual form to be used is contained in Pa.R.C.P. 1910.29(b)(3).

If the support matter does not settle at the conference and a hearing will be necessary, the physician verification form can be admitted into evidence if certain requirements are met. First, the party intending to use the physician verification form must serve a copy on the other side within 20 days from the conference date. The other party then has 10 days from receipt of the physician verification form to file an objection. If no objection is received, the form may be accepted into evidence without requiring the physician’s testimony. If an objection is made, the physician would need to testify in court and the court would determine how the cost of the testimony will be divided among the parties.

If a party receives Social Security disability or workers’ compensation benefits, proof of income from those sources would be submitted in lieu of the physician verification form. The amount of Social Security disability or workers’ compensation is treated as income for support purposes and utilized for any applicable support calculations in their case.

by

Discovering Assets and Income in Divorce

It is not uncommon for parties contemplating divorce to try to hide assets in an attempt to keep them out of the marital estate that will be up for distribution. One of the biggest red flags as far as potential hidden assets is if the spending habits or lifestyle of a party is way more than would be expected based on their reported income. You should also be wary of a party who owns their own business. If they deal in cash they can easily hide money. Additionally, what they report for tax purposes is not always indicative of income available for spousal or child support. It complex cases it may become necessary to hire an expert to analyze income flow. Top level executives may receive different forms of income. Examples include stock options, bonuses, car allowances, and deferred compensation plans. Even military members often have a compensation package that goes beyond their base salary.

Discovery is a good start in seeking to track down assets, hidden or otherwise. Tax returns and bank statements are good to review in terms of sources of income as well as where the income is going. A tax return can show rental income, interest on bank accounts, dividends on stock, etc. Bank statements can show any transfers of money and identify where it went to. Parties can subpoena documents directly from the custodian of the documents if the spouse will not cooperate and turn them over. If these initial avenues of discovery do not yield the desired results, a party will have to make a decision as to whether to invest more money in the chase for hidden assets. Any party that anticipates hiding or dissipating assets may become a problem during the pendency of the divorce should obtain a court injunction right away preventing the dissipation or transfer of any marital assets.

by