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February 2016 Archives

Social Media Use During a Divorce

In a divorce, social media activity can be used as evidence which may affect alimony, property division and child custody. Accordingly, anyone involved in these family law proceedings should be cautioned about use of social media. As many people know, once something is posted online, it can never truly be deleted. Social media posts are being used more and more in courtrooms during divorce proceedings.

Make Time with Your Children Special

For years we have heard about the importance of spending "quality time" with our children. When you are divorced and following a custody schedule (sometimes called a parenting time schedule) you may feel you have to create special moments in every day you have your kids. Settinging the expectations of constant magical moments when your children are in your care is unrealistic. It is important to establish routines, new traditions, and allow your children to grow up in a supportive environment.

International Custody Cases

International custody cases raise issues of both jurisdiction as well as subsequent enforcement. For cases beginning in the U.S., the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) likely applies. The UCCJEA gives jurisdiction for a custody matter to the home county of the child. This would be the county where the child has resided for six (6) months prior to the commencement of the custody action. If jurisdiction is not clear based on an analysis of the home state, the courts should then look to see where there are significant connections and substantial evidence relevant to the custody action. Significant connections is more than just mere presence in any state. Once a court obtains jurisdiction under one of guidelines above, that court continues to have exclusive jurisdiction until it is established that another court has become more suitable for jurisdiction. Accordingly, any modifications of custody must go through the court that made the initial or prior determination.

When You Do Not Want a Divorce (and Your Spouse Does)

As a Bucks County Divorce attorney I have worked with many clients who are facing a divorce they do not want. They may still be in love and want to work on the marriage. At the very least they want to hold the family together for the sake of the children. However, when the other spouse is adamant, they do come to realize there is little they can do. Many ignore the divorce papers they were serviced. This can be a dangerous mistake to make. It is critical to take a few necessary steps to protect yourself personally, legally, and financially.

Keeping the House in a Divorce

If you want to keep the house in a divorce, you may wonder what they will entail. If the mortgage is in joint names or in your spouse's name, you are definitely going to need to refinance the mortgage into your own name at the time you get divorced, unless your spouse is nice and agrees to stay on the mortgage longer. If there is equity in the home, and not enough other assets to compensate your spouse in other ways, there is a good chance you are also going to need to come up with additional money as part of the refinance in order to buy your spouse out. The equity will be the value of the home at the time of the distribution less all the debt on the home (mortgage, home equity lien, etc.). The amount you will have to pay your spouse will depend on the percentage split of the assets as well where you live. In some counties they will deduct the cost of sale even though you are not selling the home. In others, they do not. If you need to time to be able to refinance, in some cases, it is recommended that you wait the two year period that you can delay a divorce by not consenting. During that time, as long as the mortgage is being paid you can remain in the house while you work to build your credit or income so that you can refinance. If you are interested in keeping the house, you will want to check your credit as soon as you separate and talk to a mortgage broker or lender to see what things you will need to do in order to qualify for a loan and then set a plan to meet those steps. You also want to make sure you create a budget to make sure that you really can afford the home. You will need to project your income, the support you receive and the costs of the home, not just the mortgage but all the maintenance and make a decision based on all those factors. 

Alimony in a Divorce

If you expect to receive alimony in a divorce, you will want to make sure that any agreement specifies the terms on which it is modifiable. Alimony is normally modifiable in amount provided you state that in your agreement, but not modifiable in duration. In Pennsylvania, however, if your spouse dies or you remarry or you live with another person unrelated of the opposite sex, alimony terminates at that time, unless you specify otherwise in an agreement. Since alimony does terminate in death, it is important to consider life insurance in your divorce plan or agreement. Many agreements will provide that until your alimony terminates that it is secured by a life insurance policy equal to or more than the remaining amount of money that you anticipate that you will receive over the course of the alimony term. In some instances, you may want to consider a buyout of alimony if you are paying alimony. This means that instead of making monthly payments on alimony, you lump sum the payment upfront and usually ask for a reduced amount since the money is being paid immediately. In this case, however, you may lose the deduction on your tax return depending on how the agreement is drafted since normally alimony is deductable by the payor and taxable to the payee. In addition, you will not be entitled to any of the payment back should your spouse remarry or cohabitate, but you will not be subject to an increase if your income goes up. There are many options to consider when paying or receiving alimony that should be considered in any divorce settlement. You should consult both an attorney and a certified public accountant. 

V-Day

This weekend many will be celebrating Valentine's Day with their loved ones. Cards and gifts are exchanged to express love and friendship. February 14th also marks V-Day: a global activist movement to end violence against women. This movement started in 1998 and has raised millions of dollars in addition to bringing awareness of the issue of violence against women on an international scale. Pennsylvania recently enacted the Protection from Sexual Violence and/or Intimidation Act (PSVI). The Act allows victims to obtain a civil no-contact order for up to three (3) years on the basis of sexual violence.

Dying without a will in Pennsylvania

When you die without a will, your state's intestacy statute dictates how your estate is distributed. For the most part, only assets in your own name are transferred through the probate process. For example, life insurance proceeds or retirement accounts with beneficiaries pass directly to the designated beneficiaries. Also, real estate owned as joint tenancy with right of survivorship or tenancy by the entirety passes directly to the survivor(s).

FILING DIVORCE ON YOUR OWN

Some people desire to File a divorce on their own. While there is no law the requires that you have an attorney in order to file divorce, the challenge that is often faced is knowing the steps that are needed to process the divorce as well as the legalities of what is needed in service and providing proof to the court. Filing a divorce on your own should never be attempted if you have property to divide or you have alimony issues as you have too much to lose if you do it wrong. Even when you have no issues, it is very difficult to navigate the court system and the requirements. That is not to say it is impossible, just more difficult. Filing the divorce itself is probably the easiest step of the process. You file a complaint for divorce, usually in the county you reside, although if you both waive venue you can file in another county that may have a lower filing fee. After the complaint if filed, however, you need to serve the complaint. This is normally done by certified mail, return receipt requested, but can also be done by acceptance of service or personal service. In some instances, if the defendant cannot be found, you may need to get permission to serve the defendant by publication. You need to prove to the court that service was made so you will need to file proof which varies depending on how the defendant was served. You may also need to verify a signature depending on the county and the method employed. After service is where it becomes tricky. The remaining documents are time-determinative documents based on whether you are filing a two year separation or a 90 day consent divorce. You need to make sure you have the right documents and that you file them and any proof in the correct order. Finally, you will have another set of documents to file to get your final decree if you have no issues that depending on the county need to be served by notice by a certain method, again with proof. If you have no assets and no issues, you may want to consider spending the money to make sure it is handled properly. Most firms will offer a lower cost divorce in these instances. At a minimum, you may want to consult a firm on an hourly basis to review the papers and steps as you go along. While most counties do not have forms available for you to file, if you really want to attempt to file on your own, you may want to contact Potter County in Pennsylvania to obtain any forms available that they have on divorce as many simple divorces are processed through this county, or consult your local bookstore for a how to file book which may be helpful in explaining the process and providing you with forms. 

Shared or Joint Custody

There are two types of custody, legal and physical. In most instances, legal custody or the major decision making process and access to information is joint or shared. When people talk about shared or joint custody, they are usually referring to the physical schedule, i.e., where the child spends his or her time. The terms shared and joint are used interchangeably and mean that the child spends equal time in both parties' homes. There are various schedules that could be construed in as a shared or joint custody schedule. Common schedules are week to week, rotating on the same day of the week, or two set week nights in one week and alternating the weekend as a Friday to Monday morning. These are not the only options, however, and parties need to look at their particular situation if they are attempting to come up with a joint schedule. It is important to look at maximizing the quality of time each parent has by considering work schedules of the parents and activities of the child as well as the distance between the two homes. As courts seem to be moving more towards a joint or shared custody schedule and away from one primary home, it is wise to explore all different possible scenarios for the best interest of the child. 

Dealing with the Car in a Divorce

Divorce brings up many issues and how to address each one. One very common issue is a car. The value of the car is usually determined at the time of the distribution and usually does not have significant value in most cases. Like other assets, it is the value of the car less any liens or loans on the car. Kelly Blue Book is often used to determine the value of the car. The person who keeps the car is responsible for the loan on the car regardless of whose name the loan is in at the time. In some cases, an indemnification clause can be added to the order or agreement whereby the party who keeps the car is responsible for the loan and if they fail to pay, the other party can seek recourse. In some cases, if the party driving the car is owed support, the other side may agree to deduct the amount of the loan payment from the support. Once the loan is paid off, it is important to include language regarding the transfer of the title. If one party is not agreeable to keep the loan in their name while the other party drives the car, then oftentimes, the balance of the loan can be paid off from other assets such as the refinance or sale of the home. In addition to being responsible for any payments on the car, whoever is in possession of the car is also responsible to keep the car insured. If the other side is paying the insurance if the vehicle is in their name, it will be credited back to them in either support or the divorce. Keep in mind that in a divorce, usage of the property oftentimes determines responsibility for payment of expenses.

Preparing for your Divorce Consultation

When you are considering a divorce, it is often normal to obtain a divorce consultation to find out what to expect and what your rights will be. A divorce consultation may be done by phone or it may be done in the lawyer's office. In order to make the best use of your time, you want to make sure that you are prepared. You want to keep to the facts and try to leave the emotional story out of the conversation so that you can obtain the best possible advice during the consultation. The basic facts will help the lawyer assist you in explaining your options and what to expect. If you want to have an idea of how much support you will receive or pay, then you will want to be sure to have the information on income for both parties, the cost of the mortgage, medical bills, child care and other expenses. You will also want to have an idea of what you think the custody arrangements may be. If you want to discuss options on how assets may be allocated, you will want to know approximately how much each asset is worth and what type of asset it is, such as a house, retirement account, etc.. If you find that you are too emotional, you may want to consider bringing a trusted friend who can assist you with during the consultation and provide you with emotional support. You may want to make a list of questions that you want to be sure to ask while you are in the consultation as oftentimes, it is overwhelming and you may find it difficult to think clearly. You should bring a pad of paper and pen so you can jot down notes during your consultation. 

Pensions in a Divorce

In a divorce, especially a long term marriage, a pension can be a very valuable asset. Assets accumulated during the marriage are marital assets, regardless of whose name the asset was accumulated in. Retirement accounts, including pensions are marital assets to the extent that they were acquired during the marriage. If a portion of the pension was accumulated prior to the marriage or after the marriage, the court will use a coverture fracture to determine the marital portion. This means the number of years married over the total years that the pension was accumulated will be marital. In addition, many pensions have a survivor benefit that should also be considered. A survivor benefit is an election when the pension is taken that reduces the monthly pension payment based on the election that is chosen. Depending on the value of the pension and the health of the parties, the divorcing spouse may want to pursue the survivor benefit whereby they secure a monthly payment in the event of pension earner's death which could be various percentages of the monthly pension depending on the election that was taken. Instead of doing a percentage of the marital portion, in some cases, it may be beneficial to have the pension appraised and the survivor benefit appraised to offset the value with other assets. Usually a private company will be hired to do this type of valuation. 

When is it a custody relocation?

Pennsylvania's custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent's permission prior to relocation. A relocation is defined as any move that would "significantly impair the ability of the nonrelocating party to exercise custodial rights." This definition allows some room for interpretation on when it is necessary to request relocation. Some obvious examples would include a move which would potentially require a flight or at least several hours driving. If you had a schedule with a mid-week dinner visit or overnight, it would be impractical to travel that distance every time.

A No Fault Divorce does not always mean a simple divorce

In Pennsylvania, many people hear the words no-fault divorce and expect that it is going to be simple. Most people in Pennsylvania will get divorce on no-fault grounds, even when there has been infidelity or abuse. No-fault divorces refers to the grounds for divorce, meaning you either both sign consents to a divorce, or after two years of separation, you obtaingrounds based on a two year separation. It does not necessarily mean that it will be simple. The complexity depends on the assets that have accumulated during the period in which the two parties are married as well as the difference in the incomes. If the parties are seeking to allocate assets between them or one party is seeking alimony, it does not mean that you no-fault divorce will be simple. You will need to either come to an agreement on these issues or you will have to go to court. The simple divorce, however, is the divorce where there are no assets and there is no alimony sought. In those type of cases, you can get divorced relatively quickly after both parties consent or the two year period has passed. You will also not have to go to court and you can process the divorce through the mail. This is true even if there are children since custody is handled separately from the divorce. 

Served with Divorce Papers? Now what?

If you are served with divorce papers, you will want to first, keep them. Do not throw them away even if you are upset or angry. You can get a copy from the courthouse, however, if you have already done this. You are considered served on the day you receive them even if you tell the person who tries to hand it to you that you do not want the divorce papers. Your service date is an important date as it starts the period of time in which you have to wait if you are doing a mutual consent divorce. You will want to have an attorney look at the papers that you received so that they can determine for you if you need to response. The papers will always say you only have so many days to respond. Do not panic. It is unlikely that you will lose rights if you do not answer them within that time frame. Do, however, consult an attorney, who will be able to explain the legal jargon to you and let you know whether a response is required. A response is only usually required if you need to raise new claims such as spousal support or alimony or equitable distribution. Most attorneys will offer a consultation either by phone or in their office, and oftentimes, this initial consultation will be free. If you need support, you may bring someone with you to the appointment or have them on the phone with you. If you are served papers, in most cases, you will want to freeze any joint debt and secure any joint assets, but you may also want to discuss it with your attorney. Being informed and knowing what to expect is an important part of getting you through the process. An attorney can discuss with you what you can expect with respect to distribution of assets, support, and also the time frame in which things may happen or how things may be delayed. 

Explaining a Waiver form for Divorce

Oftentimes parties are pro se, meaning they represent themselves. Sometimes, it can be frightening to receive paperwork in the mail that you do not understand or fear may end upwaiving your rights. In a divorce you may receive one of two types of a waivers. One is called a waiver of Notice of Intent to Request a Grounds Order and the other is a Waiver of Notice of Intent to Request a Divorce Decree. What these forms mean if you sign them are that you are giving up the 20 day notice required to let you know either a grounds order or decree will be entered. In the case of the decree, you need to make sure that you have reached an agreement on everything before you sign it. Otherwise, if you did not make claims for alimony or to divide property, they will be waived if you sign that and a decree gets entered. If you are served with one and have not raised claims but want to, you will need to do that rather quickly. For a waiver of notice of intent for a grounds order, it means grounds will be entered. You are not divorced just because grounds are established, however, you may lose rights to inherit if your spouse dies and you may want to make sure discovery is done. If you are ready to move to your divorce hearing, then signing a waiver for the grounds will not hurt you. 

Benefits of Mediation in Law

Mediation is a neutral and voluntary process wherein two or more parties that have a dispute meet with a mediator who facilitates the meeting in an attempt to come to an agreement and keep the matter out of court.  A mediator does not have to be an attorney. Oftentimes, counselors receive training in mediation as well.  It is important to keep in mind that if an attorney is a mediator, they cannot give you legal advice since they are a neutral party.  For this reason, some people also keep an attorney for legal advice while going through mediation.  The benefit of mediation is that it often can resolve issues or at least narrows down the issues in dispute.  This is helpful in the legal setting so that only money is spent litigating a very focused issue, if needed.  If an agreement is reached in mediation, it can be drafted and signed by the mediator or it can then be taken to an attorney to review.  Agreements that are reached in mediation not only help keep costs down, but they also help to keep the relationship more amicable since both parties have had input in coming to the agreement.  

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