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Irrevocable Trusts

A trust is a mechanism wherein assets are set aside for certain beneficiaries and managed by a trustee subject to the terms of the document. Irrevocable trusts cannot subsequently be modified or terminated. Irrevocable trusts can help protect assets for parties who may need long-term care. Elderly persons needing long-term care often try to utilize Medicaid to assist with the expenses. Medicaid is a need-based health care program so there are limits on the amount of income and assets a party can have when seeking eligibility. An individual should plan ahead to make sure any countable assets and income are structured so as not to affect any future applications for Medicaid. Medicaid can look back five years from the date of an application so it is important to do any relevant estate planning well in advance.

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Stock Options as Income

Stock benefits are often given to employees as part of their compensation or as an incentive to remain with the company. One of the factors to consider when dealing with stock benefits is whether the benefits are vested or not. Vesting is when all restrictions on the exercise of stock benefits are lifted. Each employer may have different rules on how long it takes benefits to vest. It is important to review the grant documents for the benefits to understand how they work and when they will vest.

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Military Retired Pay vs. Disability Pay

Military retired pay is a divisible asset in the context of a divorce matter. For marriages of at least ten (10) years, military retired pay can be divided through DFAS such that each party receives their share of that benefit directly. For marriages of less than ten (10) years, the service member would be responsible to make sure the spouse received the correct amount of the benefit. Disability pay is not a divisible asset. The amount of disability pay is based on the extent of the service member's disability rating. Service members used to have to reduce their retired pay by the amount of any disability pay they elected to receive. This could result in the spouse of the member being shorted.

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Allocation of Support

Allocation is the identification of separate portions of a support award where a party receives both child support and some form of spousal support simultaneously. Child support and alimony payments have different tax consequences. Child support is not tax deductible by the payor or taxed as income to the payee. The exact opposite is true of alimony. Alimony can be claimed as a tax deduction for the payor and must be claimed as income by the payee. Parties can reach a mutual agreement to allocate a support award however they see fit. Where support is calculated pursuant to the guidelines, the Order will spell out what portion of the support award is child support versus what portion of the support award is alimony.

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Wills for Heroes

Wills for Heroes is a program in conjunction with the Pennsylvania Bar Association that provides free wills, living wills, and powers of attorney to first responders and their spouses/significant others. Proof of military or public service affiliation is required. Appointments are required and can be made on the Pennsylvania Bar Association website. Each appointment is for one hour. At the conclusion of the appointment, each participant will have their final, notarized documents to take home with them. If a spouse or significant other is also participating, their appointment will be immediately following that of the first responder. The program is made possible through the time of volunteers including attorneys, reviewers and witnesses.

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Survivor Benefit Plan

Survivor benefits refer to the benefit that can be paid to the selected beneficiary following the death of the employee. This type of benefit is available in the context of a military pension plan. A survivor benefit is a marital asset that should be addressed in the context of a divorce. It is a separate asset than the pension itself such that a spouse could receive a portion of the actual pension as well as the survivor benefit. The participant spouse must elect a survivor benefit plan at the time of retirement. This is because there is a cost for the survivor benefit plan which is paid through a reduction of the base amount for the benefit. Presently, there is a cost of 6.5% the base pay to elect a survivor benefit plan.

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Deciphering Military Pay

Service members can receive compensation in a number of different categories. First, every service member will receive basic pay. This is their compensation for being enlisted as a service member. Certain service members will receive allowances in addition to their basic pay. BAH is the allowance for housing. This figure varies depending on the geographic area where the service member is due to differences in cost of living throughout the country. BAH should be added to the basic pay when determining income available for support. If a member is not receiving a housing allowance this may because they reside on base for free. In that scenario, the value of the benefit they are receiving in living for free should be imputed to them and tacked onto their income available for support.

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Child Support for Military Families

There are several options in providing for child support of minor children when one of the parents is in the military. One option is the traditional method of pursuing court-ordered support through the state court with jurisdiction. Please note that the Servicemember's Civil Relief Act (SCRA), which mandates a stay on civil matters while a servicemember is on active duty, may interfere with the ability to quickly pursue a court order through a local court. A servicemember can elect to waive the protection provided by the SCRA and proceed with any civil matter, including family law issues, at their discretion. Any such waiver should be writing. 

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Holiday Schedules

As the holiday season approaches it is a good time to figure out where children will spend the holidays if you are separated or divorced. A good custody order will include a holiday schedule. Frequently seen provisions include alternating holidays so that one parent has a holiday in even years while the other parent has it in odd years. Another option is splitting the holidays so that each party has a certain time allotted on the holiday itself. This works best if the parties are in close proximity to each other to minimize travel time on the holiday. There could be a holiday schedule which provides for the parties to always have the same holidays every year. In some instances, a custody order may simply state that holidays will be shared as mutually agreed upon by the parties without specifics. This is only recommended if you have a good relationship with the other parent to avoid arguments or stressful last-minute negotiations.

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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. There is a defense to the duty to pay spousal support 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.

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Langhorne, PA 19047

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