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family law Archives

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.

How to Change Your Custody Agreement/Parenting Time

If you have children and are getting divorced, you will negotiate a parenting time schedule, typically called a custody agreement. This dictates the amount of time that each child will spend with each parent. It can include overnights, holidays, and special arrangements like pick-ups and birthdays. If you are divorcing with younger children, your schedule will more than likely need to be adjusted in the future to accommodate different schedules.  If you have already been divorced for a few years, you may be concerned that your custody agreement is no longer working. After all, your schedule, as well as the activity schedules of your children, have probably changed over time.  

Donor Agreements

Donor agreements are vital for identifying the legal rights of parties considering artificial insemination as part of assisted reproduction. An agreement should indicate that the donor does not have any rights subsequent to the donation. Specifically, the agreement should explain that no parental relationship is intended for the donor. It should be clear that donor's parental rights are terminated and that the donor forever forfeits the ability to file for any type of custody or visitation if a child is subsequently born. The agreement would allow the recipient to dictate what happens with the donation or any embryos created using the donation.

Surrogacy

Surrogacy is the process whereby a third party is used to assist couples in having a child. Surrogacy may be traditional wherein the third party will have a biological tie to the child however has agreed to relinquish any legal rights as a parent. The other option is gestational surrogacy where the third party is just a carrier and the egg and sperm of the intended parents are implanted in the surrogate. Pennsylvania does not have a statute in place as it relates to surrogacy, however, case law has upheld a surrogacy contract. In J.F. v. D.B., the carrier mother attempted to keep the children following birth despite having entered a surrogacy agreement. 897 A.2d 1261 (2006). The court eventually held she didn't have standing for a custody action and turned the children over to the intended parents per the contract. The courts went a step further in In re Baby S, when it explicitly upheld a surrogacy agreement. 2015 Pa. Super. 244 (2015).

Donor Agreements

Donor agreements are vital for identifying the legal rights of parties considering artificial insemination as part of assisted reproduction. An agreement should indicate that the donor does not have any rights subsequent to the donation. Specifically, the agreement should explain that no parental relationship is intended for the donor. It should be clear that donor's parental rights are terminated and that the donor forever forfeits the ability to file for any type of custody or visitation if a child is subsequently born. The agreement would allow the recipient to dictate what happens with the donation or any embryos created using the donation.

Pennsylvania Surrogacy

Pennsylvania does not have a statute in place as it relates to surrogacy, however, case law has upheld a surrogacy contract. There are two types of surrogacy. A traditional surrogacy is where the carrier has a genetic relationship with the child. For example, the carrier's eggs are used along with a sperm donor. A gestational surrogacy is where the carrier has no genetic relationship. With a gestational surrogacy both the egg and sperm are implanted into the carrier. In J.F. v. D.B., the carrier mother attempted to keep the children following birth despite having entered a surrogacy agreement. 897 A.2d 1261 (2006). The court eventually held she didn't have standing for a custody action and turned the children over to the intended parents per the contract. The courts went a step further in In re Baby S, when it explicitly upheld a surrogacy agreement. 2015 Pa. Super. 244 (2015).

Facts about Emancipation

There is no emancipation statute in Pennsylvania and cases are determined on a case-by-case basis looking at the facts. The key factor is if the minor child has already established independence. This would include financially supporting themselves and living apart from their parent or guardian. Any judicial determination is not permanent and can be revoked if the circumstances change. Further, it is not enough for a minor child to point to an intent to live independently. Instead, they must already evidence their independent status prior to a formal determination. Marriage and enrollment in the military usually favor an emancipated determination though the same criteria should still be considered regarding independence. Overall, it is a very hard legal standard to reach.
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Children Witnesses

The general rule on hearsay is that any out of court statement being offered for the truth of the matter cannot be admitted unless it meets one of the exceptions for hearsay. An additional loophole separate from the hearsay exceptions addresses minor children. The policy of the Commonwealth is to promote procedures to protect children witnesses. These procedures are outlined in 42 Pa C.S.A. 5981 - 5988. For the purposes of the provisions in these sections, child is defined as an individual under sixteen (16) years of age. Per Section 5984.1, the court may direct that a child's testimony be recorded for subsequent presentation in court so long as the method accurately captures all information presented during such testimony.

What to wear to Family Court

What you wear to Family Court is less important than how you act when you are there. That being said, however, it is important that you give the Court the respect it deserves. Do not show up wearing flip flops, tank tops, shorty shorts, beat up jeans, sneakers. Whether you have a conference or you have a hearing before the Judge in a Courtroom, you should dress like you were going to Church back in the day when people dressed appropriately for Church. If you have tattoos, cover them up. If you have piercing or gage earrings, take them out. Since Family Court is often based on subjective opinions, it is best to not give any reason to the Court to side against you, whether they do so consciously or not.

Reasons to consider a Prenuptial Agreement

If you are getting married, you may want to consider a prenuptial agreement before you tie the knot.  A prenuptial agreement is not necessary in every situation, but is very useful to avoid conflict in certain situations.  It is not always just for divorce.  You may want to use it to allow you to decide how your assets will be distributed in the event of death rather than have your spouse be entitled to their elective share.  

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