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January 2018 Archives

Divorce Jurisdiction

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 or the place where a party intends to return to if temporarily absent from the state. Domicile is the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. You can look at address, driver's license, voter registration and tax filings for confirmation of their permanent residence.

Common Law Marriage

A common law marriage is distinguished from a regular marriage in that no marriage license is required. Instead, parties just have exchange words of intent to be married and hold themselves out to their community as a married couple. Often, the parties also lived together for some length of time as well. Common law marriage was abolished in Pennsylvania in 2005. Parties who met the requirements for common law marriage prior to 2005 can still be recognized as valid marriages. Once a common law marriage is established, it can only be resolved by divorce just as with any regular marriage. Moser v. Renninger, 2012 PA Super 59 (2011) discusses how to evaluate whether a valid common law marriage exists.

Vanishing Credit

In certain circumstances, the court may give credit for separate property brought into the marriage. Generally, any credit to be received decreases with the length of the marriage. For example, Bucks County will reduce the credit by 5% a year such that there is no longer a credit after 20 years. A prime example of a situation where this rule would be applicable is the purchase of a marital home. Say Spouse A contributed $40,000 of their pre-marital money to the purchase of the house. If the parties separated after 5 years, the amount of Spouse A's individual contribution is reduced by 25%. Accordingly, Spouse A would argue that 75% of the $40,000 down payment, or $30,000, is their separate property and not subject to equitable distribution in the divorce. Chester County may apply a vanishing credit over the course of 10 years such that the credit vanishes in 10% increments.

Temporary Protection from Abuse Orders

Any party experiencing abuse by a partner/spouse (current or former), family member related by blood or marriage or person with whom you share a child may obtain a Protection from Abuse (PFA) Order. The first step is to file a PFA petition with the court. After you have filed, the court will determine if a temporary order should be put in place right away. Specifically, 23 Pa. C.S. 6107 (b) requires the court to conduct an ex parte hearing to determine if a temporary order is warranted. This hearing is only attended by the filing party. It is now required to safeguard the defendant's due process rights by way of questioning the filing party as to the truth of their petition.

Treatment of Pensions in Divorce

Pensions are subject to division in a divorce to the extent one of the parties earned the pension benefit during the marriage. The court will equitably divide the marital portion of a pension plan after considering all the relevant factors in equitable distribution. The marital portion of a plan would be the portion that accrued from the date of marriage through the date of separation. An entire pension will be marital if the parties were married the entire time a party earned benefits under the pension. In other cases, a coverture fraction is applied based on the total years of service compared to the number of years of marriage. Pensions are often a deferred distribution asset meaning that each party will receive their share at retirement age of the participant. There is the option to do an immediate offset of the marital portion of the pension if there are other assets of comparable value.

Discovering Assets and Income in Divorce

It is not uncommon for parties contemplating divorce to try to hide assets in an attempt to keep them out of the marital estate that will be up for distribution. One of the biggest red flags as far as potential hidden assets is if the spending habits or lifestyle of a party is way more than would be expected based on their reported income. You should also be wary of a party who owns their own business. If they deal in cash they can easily hide money. Additionally, what they report for tax purposes is not always indicative of income available for spousal or child support. It complex cases it may become necessary to hire an expert to analyze income flow. Top level executives may receive different forms of income. Examples include stock options, bonuses, car allowances, and deferred compensation plans. Even military members often have a compensation package that goes beyond their base salary.

Void and Voidable Marriages

In order to file for an annulment, a party must establish the underlying marriage was either void or voidable. Under 23 Pa C.S. 3304, void marriages include those where (1) one of the spouses is still in a former marriage, (2) the parties are too closely related, (3) either of the parties was incapable of consenting to the marriage, usually due to mental disorder, or (4) either of the parties was under 18 if claiming a common law marriage. A void marriage is one that is invalid because it violates some public policy.

Inherited Assets

The receipt of an inheritance may impact your divorce or support case. Section 3501 of the Divorce Code defines what will be considered marital property, and up for division, versus what will be considered non-marital property. Property received as a gift, bequest, devise or descent is non-marital per 23 Pa. C.S. 3501(a). Accordingly, an inheritance that is received during the marriage can be classified as non-marital property. A problem is created if the party who receives the inheritance places the funds into a joint account and/or commingles with other funds properly classified as marital. In that scenario, it can be difficult, if not impossible, to trace which funds were from the inheritance versus which funds were marital when trying to figure out equitable distribution at some later date. As a practical tip, parties should avoid commingling inheritance funds with other marital funds. Inheritance funds should still to be disclosed in a divorce action since the separate assets of the party are a factor for equitable distribution under 23 Pa. C.S. 3502.

Steps in Equitable Distribution

Equitable distribution is the term used in Pennsylvania as it relates to division of marital property in a divorce. Marital property will consist of nearly everything acquired in either party's name from the date of marriage through the date of separation. Equitable distribution does not mean an automatic 50/50 split of all marital property. Instead, the statute on equitable distribution sets out thirteen (13) factors to be considered when seeking to set percentages for distribution on a case-by-case basis. In any divorce involving equitable distribution, the parties should first identify all the property to be considered. Specifically, Pennsylvania Rule of Civil Procedure 1920.33 discusses the requirement of each party filing an Inventory. The Inventory should list all marital assets and debts at issue. An Inventory must be filed prior to requesting a hearing on equitable distribution.

Counseling for Children

Counseling may be a useful resource for children dealing with changes in family status due to divorce or separation. It can serve as a safe place for children to discuss and process their feelings. It is not uncommon for children to be reluctant to discuss their feelings with their parents. Both parents will need to agree to counseling unless one parent has sole legal custody. A parent can petition the court for an Order regarding counseling if they believe it is necessary and they are unable to get the other parent's consent.

Health Insurance in Divorce

One frequent question in the context of divorce is what will happen to health insurance coverage. Generally, a spouse should not drop the other spouse while a divorce is pending. Health insurance is often addressed in the context of support and spouses are obligated to provide support for each other during the marriage. A support order can mandate a spouse to continue to provide health insurance. The obligation to carry health insurance for the other spouse ends at the entry of the final divorce decree. If you are unable to obtain alternate health insurance on your own right away you can look into COBRA coverage but this can be very expensive. More affordable options may be available on the healthcare marketplace.

Steps to take before moving with children

In a custody matter, court approval or permission of the parent is required prior to a relocation. A relocation is defined as any move that will substantially interfere with the custodial rights of the other parent. The specific details of your existing custody schedule are relevant in determining if any contemplated move would cause a substantial interference. Moving to a different school district is not necessarily a relocation though it triggers legal custody issues. Similarly, moving to a different state may not necessarily count as a relocation. 23 Pa CS 5337 lays out the specific procedures to be followed in the event of a proposed relocation which will interrupt the existing arrangements. First, the party seeking relocation should give 60 days notice to the other parent by certified mail, return receipt requested. If not possible to give 60 days notice, notice should be given within 10 days of becoming aware of the relocation.

Immigration Considerations

Family-based immigration is one of the more common pathways to legal residence in the United States. It is important to understand how family law actions may affect immigration status. Marriage to a US citizen potentially creates an opportunity for a noncitizen to achieve residence. The marriage must first be valid under state law as with any other marriage, but also must pass the criteria of the Immigration and Nationality Act. Marriage fraud, marriage for the sole purpose of obtaining residence, is a serious concern. U.S. Citizenship and Immigration Services (CIS) will make inquiries into whether there is a bona fide marriage. Additionally, permanent residence is not an option unless the parties have been married for at least two years.

Filing Fees

Most family law actions that will be filed include a filing fee for the initial complaint or pleading. A part of these filing fees go to fund the Pennsylvania Children's Trust Fund (CTF). This fund has received approximately $40 million dollars from family law filing fees since inception. The initiative of the CTF is to prevent child abuse and neglect across the state. The main emphasis of CTF is to put prevention programs in place to decrease child abuse and neglect overall. The CTF grants its money to local community programs with the same initiatives. It is up to the respective community programs to apply with CTF to see if they are eligible for a grant. Currently, upwards of 280 community based programs across the state have received grants to aid in the fight against child abuse and neglect.

Steps to Take Post-Divorce

Receipt of the divorce decree does not necessarily mean nothing else needs to be done. In a case with a marital residence, the parties may still need to sell the house or one party may have a certain window for refinancing the property and buying the other party out. If you are a party retaining a marital residence by agreement or court order, you can change the locks once the property is formerly awarded to you. The party vacating the residence should be sure to change their address with the post office and update other accounts accordingly. In a case where retirement benefits are being split, the parties may need a qualified domestic relations order or QDRO for short.

Short Sale vs Foreclosure

A short sale is an alternative to foreclosure if you have fallen behind on payments on your home. In the instance of a short sale the lender allows the home to be sold for less than what is owed on the mortgage. This is because it is usually less of a loss for the lender to allow a short sale than to let the home go into foreclosure. Foreclosure is when the lender repossesses the home due to failure to pay the mortgage. The lender often stands to lose even more money in providing for the upkeep of the home on a monthly basis and paying the taxes in a foreclosure situation. Another benefit of a short sale is that it is usually less damaging to the credit of the seller as compared to a foreclosure. A seller should try to negotiate with the lender to minimize damage to their credit rating as part of the sale agreement.

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