Tag Archive for: support

Emancipation

Emancipation terminates a parent’s obligation to support their child. Emancipation generally occurs when a minor reaches the age of 18 and has graduated high school. Whether a minor can be emancipated even before that time is a fact-intensive analysis. An emancipated minor must demonstrate they are able to assume all legal responsibility for themselves. Factors that are often considered include the child’s age, marital status, ability to support themself, and the desire to live independently of their parents. A decision on emancipation would be made based on the totality of the circumstances after examining all the facts in any given case.

Even if a minor is determined to be emancipated, it is not necessarily a permanent determination. If the circumstances supporting emancipation change, the child may no longer be considered emancipated. Based on PA case law, a minor’s marriage weighs heavily in favor of finding emancipation. Other key factors based on case law include the child moving out of the parent’s home and having a job to support themselves. Often times, emancipation may be raised if the child stops attending school prior to completion, particularly by parents who do not believe they should continue to be liable for support.

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Social Security Disability Benefits

The issue of social security disability benefits may arise in the context of a support action. Support actions in Pennsylvania are governed by a statewide guideline amount that correlates with the ability to pay. Ultimately, any support award will be based on the net incomes of the parties involved. Social security disability benefits are recognized as a source of income pursuant to Pennsylvania Rule of Civil Procedure 1910.16-2. This is distinguishable from public assistance and supplemental security income (SSI) which are not included as income for purposes of support.

Where child support is being calculated and the child(ren) at issue are receiving their own social security benefit, the amount of their benefit also must be accounted for in the support calculation. PA RCP 1910.16-2(b) goes into detail about the treatment of benefits received by the children in the context of support. The child’s benefit should be added to the net income of the parents for determining what the basic child support award should be based on the state guidelines. The amount of child support based on the support guidelines is then reduced by the amount of the child’s benefit. After the reduction, the appropriate support award would be calculated after considering each parent’s share of the support obligation based on their income, as well as other relevant factors such as health insurance costs and custody.

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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.

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National Child Support Awareness Month

August is National Child Support Awareness Month. President Clinton began the month of recognition in 1995 as part of his welfare reform agenda. The goal was to improve the collection of child support payments by widening the use of sanctions including wage garnishment and suspending driver’s licenses and passports for parents with child support arrears. As of today in Pennsylvania, wage garnishment is virtually always utilized to ensure child support payments can be collected. Garnishments apply not only to the typical income which would be received from an employer, but also to social security and/or veterans benefits. Other methods of securing support payments include intercept of tax return refunds and even lottery winnings. Imprisonment is also a widely available sanction in the context of enforcement of child support obligations.

There has been backlash ever since President Clinton advocated for taking a tougher stance on non-paying parents. For one, the demands of child support are sometimes greater than the paying parent’s actual income. Or, support obligations pile up because the child support obligation does not automatically readjust to account for periods of disability, unemployment or incarceration of the paying parent. However, single parents do need the help of the other parent to provide a comfortable lifestyle for their child(ren). Seven states have joined in a pilot program that focuses on fostering financial stability for the paying parent so that they will be able to meet their support obligation without ending up destitute themselves. Hopefully, a balance can be struck between the seemingly competing interests of adequately providing for children as well as some financial reserve for the paying parent.

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Paternity in Family Law

When an unmarried woman has a child, paternity will need to be established before a father can be listed on the birth certificate, before the mother can seek support from the father and/or before standing for custody can be established. Establishing paternity can be as simple as the father executing an acknowledgment of paternity. The acknowledgment indicates the father is waiving his rights to any genetic testing or trial on the issue of paternity. If a father is unwilling to execute an acknowledgment or is simply unsure of the paternity of the child, genetic testing can be conducted so that the DNA results can be examined. Both parents will be ordered to participate in genetic testing. Failure to appear by the father can result in a court order declaring him as the father by default. Failure to appear by the mother can result in the court dismissing an action for support. Tests results alone are not sufficient to establish paternity. Instead, the parties must stipulate in writing that the test results prove paternity or the court must make an order on paternity after reviewing the test results.

Once an acknowledgment of paternity is signed, it is very difficult for a father to then try to allege the child is not his. An acknowledgment acts as conclusive evidence that the person who signed the acknowledgment is in fact the father of any subject child(ren). A court order on paternity will follow if the results indicate 99% probability of paternity. If paternity is established by court order, the decision is generally not immediately appealable. Instead, the appropriate time to appeal on the issue of paternity would be after a subsequent final child support or custody order. There is one exception to this rule based on paternity by estoppel. Paternity by estoppel recognizes a man as the father based on his role in the child’s life rather than the biological connection. The Pennsylvania Supreme Court has recognized that paternity by estoppel is immediately appealable so as to protect the established parent-child relationship. In the most recent case, genetic testing proved that a child born to a married woman was not her husband’s child but rather the product of an affair. The paramour tried to file for custody and genetic testing proved he was the father however the court would not allow the custody order to go into effect due to the fact the husband had raised the child all along.

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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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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.

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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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Spousal Support

Section 4321 of the Domestic Relations laws provides that married persons are liable for the support of each other according to their respective abilities to provide support as provided by law. Similar to child support, spousal support will be calculated based on a statewide guideline. Without children, spousal support is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support will only be 30% of the difference of the net incomes.

One longstanding exception to the duty to pay spousal support is where the spouse seeking support has engaged in conduct that would constitute grounds for a fault-based divorce. The fault grounds under the Pennsylvania Divorce Code include: (1) willful and malicious desertion without reasonable cause for at least one year; (2) adultery; (3) cruel and barbarous treatment of an injured and innocent spouse; (4) bigamy; (5) imprisonment for at least two years after conviction of a crime; and (6) indignities to the innocent and injured spouse which makes that spouse’s condition intolerable and life burdensome.

Many cases have touched on the issue of whether spousal support is appropriate due to alleged existence of another relationship outside of the marriage. It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Adultery is defined as voluntary sexual intercourse with a person other than his/her spouse. Alternatively, indignities may be established even when the evidence does not necessarily support adultery. “Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.” A single act by a spouse will not support a finding of indignities. Instead, it must be a course of conduct that renders the life of the innocent party intolerable or burdensome.

Conduct which takes place after separation is generally not relevant, however, such conduct may be introduced if it will go to show the conduct began before separation. In one case, the evidence supported that Wife had not started dating someone new until three days after the divorce complaint was filed. Accordingly, the award for spousal support was appropriate because of the post-separation nature of the relationship. In a different case, the support award was upheld despite Wife’s conduct before separation. The evidence supported Wife’s contention that her relationship with a certain man other than her husband was strictly platonic. Even though she had been spotted with the man several times, there was no evidence that anything that would support fault grounds for divorce had occurred. In the same case, Husband also alleged desertion as a reason why he should not have to pay spousal support. This defense was overcome as well since Wife’s absence from the marital home was justified based on Husband’s emotional abuse. In most cases, there will not be a problem obtaining spousal support, however, parties should be careful of the timing of new relationships.

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