Testimony of the Child in Child Custody

Sometimes when you are going through a custody battle your children may have to testify. Oftentimes, depending on their age, it will be done in chambers with the Judge and attorneys present but not the parents. There is always the possibility, however, it may be done in open court which is much more intimidating for the child. Usually, it is the very last testimony in a case as throughout the trial, the attorneys and the Judge may still be trying to settle the case. No judge wants to have to make a child testify but if one of the parents wants the child to testify, the judge has no choice. Rather than have your child miss an entire day of school or sit at the courthouse all day, you may want to see if you can have the child can be brought to court by a third party if needed.

One of the factors in a custody case in Pennsylvania is “the well-reasoned preference of the child, based on the child’s maturity and judgement.” This certainly does not mean that just because your child testifies that they would rather live in your home the majority of the time that you will automatically get custody. There are numerous other factors in custody that the Court also must weigh. In addition, the judge is looking for motives as to why the child says that if it even comes out as all.

Parental alienation is real and turning a child away from the other parent or unduly influencing the child is something that will play against a parent in a custody case. If your child does not testify, there are other ways that the judge may be able to determine the well-reasoned preference of the child. Most cases prior to trial will have a custody evaluation done either through the court depending on the county or through a private evaluation. This process will involve interviews with the child and this information will be conveyed in the report. When you have a court date and your child may be faced with having to testify, it may be best to not mention it to the child. Oftentimes, it ends up not be necessary and there is no reason to worry the child and when it does happen it is better to explain it shortly beforehand at the courthouse then to appear as if you may have influenced the testimony. Also, after they testify it is a good idea not to punish your child or interrogate your child as to what was asked and what was said. The more you focus on, the more traumatic you will make it for your child.

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Tips when first separating from your spouse

If you are separating from your spouse, there are various things that you should do or not do during this time:

1. You should freeze any joint credit card debts so that your spouse does not continue to increase debt in your name.

2. You should freeze joint bank accounts if you are not going to be living together. If you need some of the funds to live, it is a good idea not to take more than half and to leave half for your spouse to prevent litigation. Your spouse can and sometimes will wipe out the entire account forcing you into litigation.

3. You should figure out a budget for yourself best on how much you earn and how much you will expect to receive or pay in support so you can figure out how much you can afford when looking for a place to live. An attorney can help you figure out this amount.

4. You should collect your statements from all your accounts both debt and assets so you can establish what the values were at separation.

5. You should not drop your spouse or children from health insurance as you may be required to continue coverage during the divorce.

6. You should not change the beneficiaries on any insurance policies until after your divorce and only if there is no court order to maintain coverage.

7. You should pull your credit report so you do not have any surprises on what may or may not exist during the divorce.

8. You should gather other important documents, including your marriage certificate, your deed, car titles.

9. If you are struggling emotionally with the separation/divorce, you should engage a good therapist to help you through the process.

10. If you are expecting to receive support you should file once you know you are going to move.

11. If you expect to have custody, make sure you move locally or first obtain permission from the Court.

12. Take the personal property items that are most important to you as oftentimes it is very difficult or cost prohibitive to fight over personal property later.

13. If possible, talk to your spouse and try to come to terms on things as much as possible and consider mediation or collaborative law as an option.

14. Hire an attorney who specializes in divorce if you decide that you need legal assistance to help you with custody or support or if you decide that divorce is your next step.  You should not have expectations based on what happened with a friend or relative’s similar situation.

15. Remember to be civil with your spouse. It will be easier and less expensive if you can handle matters with a respectful and practical approach.

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Who Pays What During a Divorce

Child Support: The party who does not have the majority of time pays child support or if the parties have equal custody time usually based on overnights, the party who earns more pays child support.

Spousal Support/Alimony: Paid by the party who earns more income

Mortgage/household bills: Paid by the party who remains in the home

Car Payment: Paid by the party who uses the car

Car Insurance: Paid by the party who uses the car

Medical Insurance: Paid by the party who carries the insurance and allocated during child support and spousal support in proportion to incomes

Home Equity Loan: Depends on what the loan was used for. May require a special relief action.

Credit Card Bills: Responsibility of both parties for what accumulated during the marriage. Typically paid by party whose name it in to protect credit but any payments made after separation should be document for shared reimbursement.

Repairs to House: Routine repairs are paid by party using home. Repairs that increase value f home benefit both parties and any payments made post separation should be documented to seek a credit.

Taxes: Parties may choose to file jointly or separately. If file jointly, usually a joint expense.

College Tuition: Neither parent is responsible for college tuition for children and any payments are voluntary and not reimburseable.

Legal Fees: Each party is responsible to pay their own legal fees

Filing Fees: The party who files

Expert Witness Fees: The party who retains the expert

Business Valuation Costs: The party who seeks the valuation

Appraisal: The party who obtains the appraisal

Pension Valuation: The party who obtains the valuation 

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Kinship Adoptions

Some of the statutory requirements for adoption are waived in the case of a family member adopting a child. A standard adoption will require a home study to be completed by the local Children & Youth services agency. This process is expensive and takes a number of months. This requirement is waived in the event of an adoption of a stepchild, grandchild, brother, sister, niece or nephew by blood, marriage, or prior adoption. Now that Pennsylvania recognizes same-sex marriages, same-sex partners can also benefit from this provision.

In a kinship adoption background checks must still be completed as it relates to the adopting parent(s). Presently, there are three background checks required: (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare. If the natural parents are consenting to the adoption, their consents can be attached to the Petition for Adoption. This should be at least thirty (30) days after the consents are signed since there is a thirty (30) day revocation period. Alternatively, if lacking written consents, grounds for involuntary termination can be addressed with the petition. Following successful completion of all the pre-requisites and filing of the Petition for Adoption, the final step is the adoption hearing. Generally, the hearing is just a matter of ceremony and a happy occasion for the adopting parents.

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Another Approach to Divorce – Collaborative Law

When getting divorced, there are several different approaches that a couple can choose. Some people opt for mediation to try to resolve their disputes and save them money. Others, take the traditional approach and opt for attorneys to handle everything. There is another approach that is less known but can be quite effective – collaborative law. Collaborative law, unlike mediation, involves two attorneys similar to the traditional approach. What makes collaborative law different, however, is that both spouses agree from day one that they want to settle everything out of court. They formalize this agreement in writing with their attorneys wherein they agree that they will make any and all efforts to resolve their issues involving divorce, custody, and support out of court. While they always reserve the option to go to court if they cannot reach an agreement, there is a hefty price to pay – loss of representation by both side’s attorneys. Even if one party is still willing to work it out of court, both spouse’s and their attorneys agree that if one of the parties decides to litigate, both attorneys will withdraw from the case and both parties will have to start over with new attorneys.

This option is a great option for parties who are both committed to settling their differences out of court but want the benefit of having legal advice that mediation does not provide. When hiring an attorney, you should ask if they are willing to handle collaborative law cases if this is an option that appeals to both you and your spouse.

 

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Grounds to contest a will

Contesting a will in Pennsylvania is a very difficult process. The person contesting has the burden to show that the will is not valid.

The most common grounds for contesting a will are fraud, undue influence, forgery, lack of mental capacity, and failure to meet legal requirements.

Fraud: Was the decedent deceived into signing the will?

Undue influence: Was the decedent threatened or coerced into signing the will, when they otherwise wouldn’t have signed?

Forgery: Did someone other than the decedent sign the will?

Lack of Mental capacity: In order for a will to be valid, the decedent must understand what they are signing and be aware of what assets and property they have. Did the decedent lack an understanding of what he or she was signing at the time of signing?

Failure to meet the legal requirements of a will: Was the will not properly signed? Are there pages missing or are additional pages added?

If you wish to contest a will, it is important to speak with an experienced attorney.

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Dividing a Pension in Divorce and the Survivor Annuity

Oftentimes when parties get divorce, one of the biggest assets that they have accumulated is the pension of one or both of the spouses. In a Pennsylvania divorce, the pension portion that accumulates during the marriage is what is considered marital. There may also be a non-marital portion for the years of service prior to the marriage or the years of service after the marriage. When getting divorced, there are two methods of getting each spouse their share of that pension. One method is to do a percentage distribution of the marital years. When this method is use, the spouse receives a percentage multiplied by the number of years married that the pension accumulated divided by the total number of years that the pension accumulated. This is usually distributed by a separate document called a Qualified Domestic Relations Order which is often paid to and drafted by a company or firms that handles QDROs. The other method of distribution, and the preferred method by the Court (according to case law) is an offset. Under this method, the marital portion of the pension is assigned a dollar value based on a report prepared by a company who does pension valuations. This dollar value of the pension can then be swapped with other marital assets as an offset.

One often overlooked part of a pension is the survivor annuity. If a party has a pension, then the party who has the pension is given the option at retirement to select from several different options upon their death. This could include no survivor, a 75% survivor, 50% survivor, etc. This survivor benefit election is important in that if no survivor is elected, the one spouse will receive nothing upon death of the party who holds the pension. If a survivor benefit is elected, it reduces the monthly payment of both spouses when they receive the pension. Since only the spouse who will continue to receive the pension upon death of the pension holder will benefit, the surviving spouse has an asset known as the survivor benefit annuity which must be valued separate and apart from the principal of the pension. It is something that should be addressed at the time of divorce as once the pension is in pay status this election cannot be changed.

For additional information see: /Family-Law-Divorce/High-Income-Net-Worth-Divorce/Pensions-in-a-Divorce/

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Documents to bring to court: Landlords

Documents landlords should bring to court:

When you go to a landlord-tenant eviction hearing, you will need to bring several documents.

The lease is perhaps the most important document to provide. It is the instrument that shows how much rent is to be paid each month, when the rent is due, when the lease begins and ends, whether the landlord or tenant is responsible for certain amenities (such as electric, water, and cable), and other rules that govern the time of occupancy.

If you are a landlord seeking unpaid rent, it is important to provide a ledger showing how much money is owed.

If your tenant is stating that the rental unit is not habitable, bring proof that the place is in good working order, and that all requests for repairs have been remedied.

For landlords who provided a Notice to Quit (which is required unless waived in the lease), bring with you any documents showing that this notice was served.

If you are seeking to keep the security deposit, bring proof of any necessary repairs. This would include photos, estimates, or receipts. Witnesses should also be considered. Also bring proof that the security deposit has been returned, or an itemized list of necessary repairs was provided to the tenant within 30 days of vacating.

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Documents to bring to Court: Tenants

Documents tenants should bring to court:

When you go to a landlord-tenant eviction hearing, you will need to bring several documents.

The lease is perhaps the most important document to provide. It is the instrument that shows how much rent is to be paid each month, when the rent is due, when the lease begins and ends, whether the landlord or tenant is responsible for certain amenities (such as electric, water, and cable), and other rules that govern the time of occupancy.

If your landlord is seeking unpaid rent, bring receipts or bank statements showing that the rent was paid.

If your landlord is asking for cost of repairs, bring pictures showing that the rental unit was left in excellent condition will help your case.

If you believe that the rental unit is not habitable, bring proof of the unit’s condition as well as documentation (i.e. letters, text messages, emails) showing that you requested the landlord make repairs.

If your landlord is keeping the security deposit, he or she must provide the deposit or a list of repairs within 30 days. Bring photos or witnesses who can say that the place was left in the same condition as when you moved in. If you have proof that the notice was not served within 30 days, bring that evidence. For example, if you moved out on October 30 and the letter is postmarked December 2, then that would be evidence. Furthermore, bring proof that you gave a forwarding address to the landlord.

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How to Preserve Premarital Assets without a Prenuptial

If you are getting married and the idea of a prenuptial agreement puts a distaste in your mouth or that of your spouse, but you are still concerned about losing your premarital assets, there are a few things that you should and should not do if you get married without a prenuptial. Never add your spouse’s name to the house or bank account you had prior to marriage unless you are willing to gift this asset to the marriage. This is not to say that the house you own prior to your marriage will not be distributed in a divorce, but you can minimize the amount by keeping it separately deeded. The equity that you have when you get married will remain your asset should you get divorced. You should know what this value is when you get married by having the house appraised and keeping documentation on your mortgage balance at the time of your marriage. Without a prenuptial agreement, the increase in value during the marriage will become marital, whether or not you add your spouse to the deed or title of your account. If you have a mortgage and pay it off during the marriage, you will be accumulating marital equity even if the house does not go up value. In addition, if you have any bank accounts, you will want to keep the funds that you had going into the marriage in your separate name.

Once you start putting your premarital assets into a joint account, they become a gift to a marriage. This means that if you get divorced and have no prenuptial agreement, the Court will have to decide how to distribute this asset if you cannot agree. If you are in Bucks County, the court will normally apply a diminishing credit value meaning for every year that it was transferred into joint names, 1/20 of the asset will be considered as marital and you can seek a credit for the balance. After 20 years, you will get no credit for the premarital asset you contributed to joint names. When you start gifting your premarital assets to the marriage without a prenuptial in place, you should be very careful to document both the amount of your contribution and the source of funds. This way, if you do end up in a divorce, you will be better prepared to argue for the diminishing credit if you are in Bucks County or a more equitable share of the asset.

For more information on prenuptials, see /Family-Law-Divorce/Prenuptial-Agreements/

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