Tag Archive for: support

Service Members Civil Relief Act

The Service Members Civil Relief Act (SCRA) was signed into law by President Bush in 2003. It was an overhaul of the SSCRA which had been law since 1940. The main purpose of the SCRA is to protect service members from civil lawsuits while they are on active duty and unable to adequately defend themselves. The protections of the SCRA, accordingly, apply to family law matters such as divorce, custody and support. Divorce complaints must either include a statement that neither party is a service member on active duty or be accompanied by an affidavit of non-military service. The service member has the right to waive their protection under the SCRA and still proceed if they desire to. Any waiver of rights under the SCRA must be in writing.

The SCRA provides for a mandatory stay of civil proceedings if the case does involve a service member in active duty. The stay period may be extended if necessary. An application for a stay should establish that the present active duty impairs the ability of the service member to appear and defend themselves in the civil action. The application should also indicate when the service member expects to be available to participate. A statement by the service member’s commanding officer needs to be provided corroborating the facts alleged by the service member in the application. An SCRA website is available where inquiries can be made into the active duty status of any individual.

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Health Insurance for Children

Health insurance for minor children is an issue dealt with in the context of child support. If the children are presently covered under a plan through one of the parents, the children can remain on that plan. The other parent would then contribute to the premium being paid if applicable. This can be achieved by an increase over the guideline support amount if the party receiving support is paying the premium or a decrease if the parent who is receiving support is not the one providing the coverage. A change in which parent provides the coverage may be beneficial if one parent’s coverage is better than the other or less expensive but with similar coverage. Sometimes, the motive in changing plans is for the parent paying support to reduce the support paid directly to the other parent by adding the children to their plan instead.

If the children are receiving health insurance at no cost to either party it does not affect the guideline support amount. This may happen if one of the parents is employed by a company that covers 100% of the premium. This can also occur if the children are insured through a government program such as medical assistance or CHIP (Children’s Health Insurance Program). Health insurance is only to be provided by one of the parents if at a reasonable cost. The court does not go so far as to mandate health insurance regardless of the financial circumstances of the parties. Again, thanks to programs like CHIP it is possible to ensure the children have health insurance even if the parents cannot afford it. However, even parents should reconsider the financial consequence of not having health insurance given the enactment of the Affordable Health Care Act and the penalties of failing to obtain health insurance going forward. Subsidies may be available based on income to ensure health insurance coverage at a reasonable cost.

 

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Driver’s License Suspension

One of the consequences of failing to pay child support is a suspension of your driver’s license. This can happen if support is overdue by three months or more. Advance notice must be given prior to the suspension. The notice specifies the past due amount, how, when and where it can be contested. Grounds for contesting notice of suspension are limited to mistake in the amount of past due support actually owed or mistaken identity. The suspension will occur after thirty days if there is no response, the past due amount is not paid or excused, or there is not a court-approved payment plan in place.

The available methods to have a driver’s license reinstated mirror those that could prevent a suspension in the first place. They include paying the past due amount, entering into a court-approved payment plan or being excused from the obligation. A driver’s license is not the only license subject to suspension. The court also has the authority to suspend recreational licenses issued by the Pennsylvania Game Commission as well as licenses issued by the Fish and Boat Commission. There is no right to appeal an order suspending a license. The only option is to petition the court that ordered the suspension for relief. Additionally, car insurers are prohibited from taking adverse actions, such as increased premiums or rate penalties, if a suspension occurs under 23 Pa C.S. 4355.

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New Support Guidelines

Several changes to the state-wide support guidelines will take place in August 2013. First and foremost, the basic child support schedule will be updated to reflect newer economic data. The basic child support schedule is a table that references the combined monthly net income of the parents and the number of children to determine the appropriate support award. There is a presumption that the amount of support indicated by the support schedule is the correct amount. In addition to updating the entire support schedule, the Self-Support Reserve has also increased from $867 a month to $931 a month. This amount reflects the 2012 poverty level for one person. The self-support reserve is the minimum amount of income that should be retained by the party paying support to ensure they can support themselves and to provide an incentive to continue working.

Another change set to take place in August relates to the calculation of net income. Generally, the rules provide for a calculation including the net income of both parents, however, Rule 1910.16-2 will soon provide that two calculations be done in low-income cases. First, a calculation should be done using only the income of the party that will be paying support. Then, a second standard calculation should be done utilizing the income of both parties. The party owing support would be responsible to pay the lower amount of the two calculations. This revised rule is meant to address issues where the party owing support is low-income but the party to receive support has significantly greater income.

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Physician Verification Form

In the event that a party in a support matter asserts an inability to work due to medical issues, the support rules now require that a physician verification form be completed. Pursuant to Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1910.29 (b), regarding evidence in support matters, the physician verification form should be completed by the party’s physician and submitted at the time of the support conference. If the party receives Social Security disability or workers’ compensation benefits, proof of income from those sources can be submitted in lieu of the physician verification form. 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.

Click here to read more on the Physician Verification Form.

 

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Support Exceptions

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. In the event there is a disagreement over the entry of an interim support order, a party has the option of filing exceptions. Pursuant to Pa. R.C.P. 1910.12, parties have twenty (20) days from the entry of an order to file exceptions. Exceptions may address objections to evidence, findings of facts, conclusions of law, or any other matters occurring during the hearing. Each issue should be raised separately as an exception. Each exception should be concise and without lengthy discussion. Issues that are not raised in the exceptions are deemed waived. Examples of appropriate exceptions would include claims that the incomes and/or expenses were not correctly calculated, special circumstances were not considered, or there was an error in assigning an earning capacity. It is not appropriate to file exceptions simply because you do not agree with the guideline amount.

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If a party raises exceptions, any other party in the matter may also file exceptions within twenty days of receiving the initial exceptions. A hearing will be held to hear from the parties on the exceptions raised and a final order will be entered at that time. If no exceptions are filed, the initial support order becomes a final order after the twenty-day window has passed. Once an order is final, an appeal would be the avenue to challenge the order. An appeal would need to be filed with the Superior Court within thirty days of the final order.

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Alimony Pendente Lite

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 to support themself during the pendency of the divorce litigation. It is the income-dependent spouse who would have the opportunity to receive APL.

Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1910.16-1(c) addresses awards for spousal support and/or APL and requires the court to also 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. Additionally, it provides that an award for spousal support and an award for APL cannot be in effect at the same time.

Pa. R.C.P. 1910.1-4 lays out the calculation to be used in determining an award. In a case with children, the APL award will be based on a 30% difference of the parties’ net incomes and will account for the child support obligations of the case when factoring the net incomes. In a case without children, the APL award will be based on a 40% 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.

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Agreements in Family Law

Parties are often encouraged to try to reach an agreement to resolve whatever issues have arisen in any legal matter. In family law, agreements are especially encouraged due to the personal nature of the issues at hand along with the belief that it is better for the parties to draft their own agreement rather than allow a stranger to dictate their family dynamics going forward. Most agreements in family law will be treated as any contract would and the parties will be obligated to comply with the provisions or face an action for contempt. The family court will retain jurisdiction over all agreements entered that are subsequently submitted to the court to be made an order. As with any contract the court is generally only concerned that the agreement was entered into voluntarily and knowingly. The court will not necessarily be reviewing the content of the agreement before allowing it to become an order of court.

If a provision of the agreement needs to be enforced and one party seeks the court’s help in pursuing contempt, at that point the court would need to examine the content of the agreement in order to make a decision on a resolution of the contempt. Many agreements will include a provision that the party who breaches the agreement will be responsible for attorney fees if contempt must be sought through the court to gain compliance. The most comprehensive agreement in a family law matter is a marital or property settlement agreement. This type of agreement sets out to resolve all issues in a divorce matter including, but not limited to, how the divorce will be proceed to finalization, division of property, child and spousal support and/or alimony, and custody. One provision that will not hold up in court even if the parties agreed to it is the waiver of child support. The PA Supreme Court ruled in Knorr v. Knorr, decided in 1991, that a parent may not contract away a child’s right to support as the court views child support as an entitlement of the child rather than the parents.

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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.

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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.

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