Pennsylvania Victims of Domestic Violence May Have Easier Road to Divorce Under New Law

On April 21, 2016, Governor Wolf signed into law a bill which essentially simplifies the process for victims of domestic violence to obtain a divorce. Currently, under the Divorce Code, even in the case of domestic violence, if a spouse refuses to consent to the divorce after 90 days, the divorce cannot proceed until there has been a two-year separation. In the new law that takes effect in sixty days (around June 22, 2016), a victim of domestic abuse can file for divorce and the law presumes consent of a party if they have been convicted of committing a personal injury crime against the other party.

Additionally, the new law allows the victim to object to court-mandated divorce counseling if they have a protection from abuse order. The victim can also object to court-mandated counseling if they were a victim of a personal injury crime for which the other spouse has been convicted or is in an accelerated rehabilitation disposition program as a result of conduct for which the other party was a victim.

For purposes of presuming consent to a divorce under this new law, the party has to have been convicted, meaning having been found guilty, having entered a plea of guilty or nolo contendere or having been accepted into an accelerated rehabilitative disposition program. A personal injury crime under this new law is defined as an act that constitutes either a misdemeanor or felony or criminal attempt, solicitation, or conspiracy to commit any of the following: criminal homicide, assault, kidnapping, human trafficking, sexual offenses, arson and related offenses, robbery, victim and witness intimidation, homicide by vehicle, or accidents involving death or personal injury.

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Child’s 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.” Case law has established that when neither parent moves but the child is moving, Section 5337 is not triggered. In D.K. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014), the Father was located in Pittsburgh, PA with the children and Mother was located in North Carolina. Mother was subsequently awarded primary custody resulting in the children moving to North Carolina. This was not considered a relocation since neither parent had moved, however, the court did state that certain factors in Section 5337(h) should be considered due to the impact on the children.

Specifically, Section 5337(h)(2), the age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child, (h)(3) the feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties, and (h)(7) whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity. These factors should be considered in addition to, or alongside, the best interests factors to be considered in every custody case under Section 5328.

Click here to read more about child custody.

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Treatment of Veterans Benefits

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Former military members may be eligible to receive a number of different veterans benefits from the Department of Veterans Affairs (VA). Possible benefits include disability compensation, pension benefits, life insurance, educational benefits and more. Title 38 of the U.S. Code addressing veterans benefits dictates that the benefits are off limits to creditor claims. However, Title 38 has special provisions regarding the support of family dependents. Accordingly, receipt of veterans benefits can be counted as income for support purposes.

Veterans benefits cannot be divided as an asset in a divorce case. This is due to the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Pennsylvania Divorce Code confirms this rule. Under 23 Pa. Section 3501(a), discussing the definitions for marital benefits, veterans benefits exempt from attachment, levy or seizure are defined as non-marital. The definition goes on to draw a distinction between any benefits received in lieu of military retired pay. A similar distinction arises in support cases as far as whether the benefits can be garnished for payment of an award. Garnishment of veterans benefits is only permissible where the service member has waived military retired pay to receive the veteran benefit.

Click here to read about military divorce.

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National Alcohol Screening Day

Today is National Alcohol Screening Day. The day is intended to raise awareness and highlight treatment options. It was first observed in 1999 and falls under the category of mental health screenings. Alcohol abuse is a frequent issue in family law matters. Often times, excessive alcohol consumption can be a trigger to aggressive or violent behavior. It is not unusual for Protection from Abuse matters to include allegations from the victim that the other party was drinking prior to the incident resulting in the petition. Alcoholism is also a factor in custody matters.

Drug or alcohol abuse is one of the factors the courts must consider when trying to determine what custody arrangement will be in the child’s best interest along with past or present abuse. The court must also consider the criminal background of the parents as well as any other adult household members. Charges related to driving under the influence of drugs or alcohol are on the list as far as criminal history to be considered in a custody matter. It is possible to request a drug/alcohol evaluation as part of a custody matter. Depending on the extent of the abuse, supervised custody may be appropriate to ensure the safety of the child. You can visit https://mentalhealthscreening.org/programs/initiatives for more information on national alcohol screening day.

Click here to read more about Protection from Abuse.

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Updating your Will after Divorce

After your divorce it is very important to update your estate planning documents, most importantly your will. If you leave your old will in place your financial assets, property and even the care of your children may wind-up in the hands of those who you no longer want – your former family members or ex-spouse.

Select a new executor of your will: the executor of your estate is the person who will be charged with distributing your wealth and property. While they are to follow your wishes, if your executor is still your former spouse he/she may not do as you wish or add undo stress when dealing with your family members. When you select an executor make sure they understand your wishes and

Clearly outline who gets what items: Part of the reason you want to clearly spell out the distribution of your items is to avoid fighting by your loved ones after the fact. This can include a family heirloom or an important piece of your jewelry. Rather than have your children fighting over items they were “promised” it is so much easier if you

Name a guardian for your minor children:

In most cases, upon your death your former spouse would be given full custody of your children. If that would not be in the best interest of your children then you will need to spell out why and we suggest you do that under the advisement of an attorney. Furthermore, if your former spouse is no longer in your children’s life due to domestic violence, alcoholism or drug abuse, it is critical that your will contain the right wording and plan for your children. Protecting

Estate planning may seem tedious but is there to protect your wishes should you pass on. Do not rely on state law to handle your estate. Take a proactive approach and ensure that financial assets and care of your children are handled by a responsible individuals who will ensure your children, financial assets and valuables are handled properly.

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