May 18, 2015

Retirement Savings and Divorce

Or whose money is this anyway?

Usually the two largest assets for most families are their retirement savings and their home. As more people opt to leave unhappy marriages later in life, understanding the ins and outs of retirement benefits and planning for retirement in divorce is essential.

Life Expectancy
People generally are living longer after retirement. This new longevity is a double edged sword --especially for the baby boom generation, who may not have planned adequately for either retirement or divorce. The good news is that life expectancy is increasing. A man who retires at age 65 on average can expect to live another 20 years; and a woman on average can expect to live another 23 years. The bad news is that those folks who live longer will need a greater cushion to make sure they do not run out of money in their retirement years. Safety nets such as social security and medicare are designed to provide financial assistance in later life. But the reality is that social security income alone, may not be sufficient for most people.

What Kind of Retirement Plan Do You Have?
If you do not know what kind of retirement plan you or your spouse has, now is a good time to educate yourself. There are a number of different plans and types of plans available. They are simply outlined here as follows:
A Defined Benefit Plan, is where the employer has made contributions over the course of employment, and a specific amount will be provided in retirement. The more common name for this is a Pension. The pension plan is a dying benefit, and reliable pensions have been all but eliminated from most private workplaces today.
Qualified Retirement Plans also known as Defined Contribution plans- The most common of these are 401ks, profit sharing plans, and Keogh plans; The employer makes contributions, but there is no guaranteed or regular annuity type payout.
Non- Qualified plans - these consist of IRAs, SEP IRAs, and executive benefits compensation plans. Contributions to these plans are made by individuals and small business owners with annual contributions up to IRS limits.

What Happens to Your or Your Spouse's Retirement if You Divorce?
Contributions made to a retirement plan by the employee (and employer) during the course of the marriage and before separation are considered marital property. Growth on the funds during separation also is considered marital property. Contributions made before marriage are excluded from marital property as are contributions made after separation. If you and/or your spouse worked during some portion of your marriage, you are likely to have retirement funds subject to equitable division. How the funds get split has important economic implications for both parties. While a straight down the middle division (or some percentage proportionate split) may seem obvious and like a good idea, it might not be the most tax efficient, nor the most equitable resolution. Choosing whether to keep or split retirement funds can be a complicated decision. Some funds can "rolled over" to a spouse; others may require a court order, known as a Qualified Domestic Relations Order (QDRO). There may be tax penalties also if you roll funds from a qualified plan into a non-qualified plan. Depending upon age, or some other circumstance, a party may wish to have liquid assets "up front" and may wish to exchange a proportion of retirement assets for other assets.

Seek Out Advice
Division of retirement assets and divorce can be somewhat complex. If you are contemplating a divorce, or currently are in the midst of asset division, we recommend that you seek advice from your attorney, tax consultant or financial advisor before deciding what to do with retirement funds. The decision may have implications for the next 30 or 40 years.


For additional information, feel free to call us at 484 431 3959

January 27, 2015

Does Divorce Affect My Social Security ?


Keep your eye on the full picture

it is essential to know what financial resources will be yours after divorce. When calculating your full financial picture be sure to consider social security benefits--your own or those of your ex-spouse. Yes, even if divorced, you may be entitled to claim social security retirement or disability benefits based upon the earnings of your ex. If you were the lower wage earner, you probably are entitled to claim on your former spouse's earnings record. And, you also may have a right to collect a social security survivor benefit of your former spouse. The rules vary, but one essential key to the right to collect in both scenarios is that your marriage lasted ten (10) years or longer.

Social Security Retirement Benefit
To collect on the regular benefits, you must be age 62 or older and unmarried. If you remarry, you lose this benefit, unless your re-marriage ends. If the second marriage lasts more than ten years, you can choose which benefits you may wish to receive. To evaluate what is best, review whether what you would receive from your own work record is less than that what you would receive based on your spouse's work record. The benefit you collect generally will be 50% of your ex-spouse's benefit. (Your collections will not affect the amount your ex will receive.) The exact amount you receive will be determined upon the age you are when you choose to receive the benefit . Your former spouse must be eligible for benefits, which means he/she must be at least 62, for you to begin collections.

In some cases if you are the higher wage earner you may postpone taking your retirement, and choose to collect on the benefit of your spouse. For example, say you are the husband of a 25 year marriage who does not need a full benefit, you could choose at age 66 (full retirement age) to collect on your 62 year old wife's benefit. So long as you are unmarried, in this scenario you can delay taking your benefit until you are 70, and reap a larger personal benefit.

Social Security Survivor Benefit
if your ex spouse dies, you may be eligible to collect a survivor benefit the same as a widow or widower so long as you have not re- married before you are age 60. Again, the amount you receive will depend upon your age when you begin receiving the benefit.

In both cases, it does not matter if your ex has remarried.

The Social Security Administration provides a complete discussion of eligibility and rules regarding collection of social security benefits on their website at www.ssa.gov . We are happy to help you plan for your future and discuss this information in greater detail with you.



January 8, 2015

Are you a part-time parent?


Partial Physical Custody and Proactive Contact

Divorce is a challenging event in the life of a family. Children and parents see and experience divorce differently. While parents are coping with the emotional, psychological and financial disruption they may be experiencing, children, no matter their ages and emotional maturity, experience disruption and confusion. As everyone navigates new territory, children look to their parents for guidance and security as they process the often conflicting feelings they experience.

In every divorce involving children, legal and physical custody is established based on the best interests of the children. More often than not, parents retain joint legal custody and have an equal interest and voice in medical, educational and religious decisions. While a growing number of families successfully share physical custody, most parenting plans still involve primary and partial custody in some form.

If a child or children live primarily with one parent it is harder for the non-primary custodial parent to be involved in the daily routines. Many but not exclusively fathers, complain that their children's other parent is not sharing information with them about what is going on in the children's lives. If the parents still are moving through the often emotionally charged negotiations involving property and finances, continuing to rely on one parent to keep the other informed is not only unworkable, it is probably unreasonable. If Mom is the primary custodial parent, Dads who are used to being part of the children's daily home life, may feel they are sitting it out on the bench. Instead of waiting for custodial time to get in the game with your children, partial custodians should take on more of the legwork themselves. To stay engaged and participate actively, we recommend the following proactive steps:

1. Put the custody schedule on Google calendar or some other password protected application, which enables both parents to post events and important dates involving their children. Fill in sports practices and games, birthday parties, religious school activities, medical appointments, conferences and the like. As children reach middle school and high school, they can give you details directly and the most computer literate can add them directly to the calendar.

2. Stay in touch with your children when they are not with you. Email, texting (for older kids with phones), FaceTime or Skype expand the opportunities for contact no matter the distance or time apart. Contact should be regular, even if not every day. A simple hello text to a teenager may be all you can do but it conveys that you are thinking of your child. However, do not use these tools to inhibit your children from enjoying their time with their friends or other parent. You too want to have time without persistent interruptions.

3. Provide your children's schools, medical providers, coaches, troop leaders and friend's parents with your contact information. Chaperone activities when your schedule permits. Going on a field trip or helping to time swim meets when it's not your scheduled time demonstrates your commitment to your children. Be a booster for your children's schools and teams, buy wrapping paper or cookies or popcorn if your kids are selling them and you can afford it.

4. Stay in touch with your children's teachers and the school guidance counselor. For routine matters, email or phone messages can often be exchanged. Ask to be copied on progress reports, report cards and any correspondence from the school. Arrange to be at meetings for any special needs your children have, even if the other parent will be there. You will get information firsthand and have your questions answered.

5. Attend performances, games recitals and other activities in which your children participate. Tell your children you want to attend and let them see you at the event. Take pictures where appropriate. Refrain from bringing a date unless your children know and like the person. To do otherwise will unnecessarily upset their other parent and in turn cause the children distress.

Being a parent is a full-time job, even when you have partial physical custody. Remember that while you are making the effort for them, it is unlikely that your children will thank you for being present because they are too busy just being kids. Enabling them to enjoy their activities and not worry about their parents skirmishing will help them feel secure and still connected even when you are apart. For that they may thank you later.

January 1, 2015

The Challenge and Opportunity of Middle Aged Divorce

Yes, it's frightening to contemplate shaking up your comfortable life in your fortys, fifties or sixties, but it is happening with greater frequency these days. The US Census American Community Survey shows the rate of divorce among the 50- 60 year old population is increasing. href="http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_1YR_S1201&prodType=tabler The reasons for this increase need further study, but perhaps as we live longer and healthier lives, we are demanding more fulfillment from our later years. The realization that a sour marriage is not the place for us to achieve this fulfillment may come with a sense of questioning, disappointment, sadness, embarrassment, dread, or even fear. It is important to acknowledge and work through those feelings. And, if the marriage cannot be saved, it is equally important to realize that there are a host of positive new feelings that will come with closure.


Middle age divorce presents its challenges as well as promises. Surely, there will be upheaval. There is the prospect moving or of living alone, something some people may never have done. You may have to leave the comfort of your established marital home, or the community in which you raised a family. There may be financial set-back as you divide assets. However, with these challenges also is opportunity. The community that you love may no longer suit your needs, you may have outgrown it, but without a catalyst you would not move. Divorce can provide just the motivation to branch out, perhaps move from the suburbs to the city. Or it may motivate you to downsize to a more manageable home, allowing you more time to spend on yourself.

Today, more and more people are living alone, and enjoying the independence and privacy it permits. The latest US Population Survey finds that in the 55-64 age group individuals living alone increased from 13 to 23 percent.--surpassing those age 75 and older. The changes discussed here do not mean isolation or losing the old friends, but rather an opportunity to branch out and find new friends --even lovers-- who may enhance your life in all sorts of different ways.

A stagnant marriage in middle age also may signify a staleness in other aspects of your life. The work to keep the marriage together may have sapped energy from other pursuits, and stymied your personal growth. Once vibrant and promising in your twenties or thirties, you may not recognize yourself today. If you allow yourself to shed the clothes of a feigned domestic happiness under which you were hiding, who knows who you may find underneath. As you view your middle age divorce as opportunity, worlds of new adventures may await you. Doors will open that previously you never knew existed. It is important to stay positive, remember why you are making this change, and know that there are many resources out there for people just like you.

If you wish to learn more about the challenges and opportunities of middle age divorce, please give us a call.

November 17, 2014

Do We Need Lawyers If We Do Mediation?

Do we need lawyers if we are doing mediation? Isn't that redundant? Tihis is a question we are asked frequently.

Or sometimes our office receives calls, where a party asks will the Mediator answer our legal questions? This question belies a fundamental misunderstanding of the mediation process. In mediation, parties can come to any agreement they wish , regardless of what the law might require or impose in a certain situation.

Unfortunately, myths and misconceptions about mediation exist. While most people generally understand that mediation is a collaborative process between the parties, few truly grasp how self-directed the process is.

Oftentimes couples think Let's do mediation because

- it is less costly;
- it is quicker; and,
- we get along so well, we don't need lawyers.

While, it is true that mediation usually is less costly, and quicker, it is not true that parties do not need lawyers. In our mediations, we recommend that the parties engage independent counsel who serve in the background as needed to answer questions , and review or draft documents.

Again, clients may ask, isn't this un-necessary? Doesn't having iawyers defeat the purpose of mediation? Now we have 3 people involved, instead of just 2 lawyers. Our answer is NO. We find having lawyers in the background smooths the process and keeps the Mediation moving forward, and thus, keeps costs down.

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We believe the role of the mediator is to facilitate the conversation between the parties. The Mediator can raise issues that need to be addressed that the parties may not have considered. The Mediator can subtly move the parties toward workable resolutions that have a greater degree of success because the parties (not the lawyers) have come up with solutions. To do this, the Mediator needs to remain neutral - favoring neither party, and showing partiality to no result. If one or both parties get stuck on "legalities" they always can go to their lawyers for advice. They key is to return to Mediation with the legal "answer," which they may choose to follow, or not. Neither party, however, feels betrayed or favored by any legal advice or answer provided by the Mediator.

Mediation is an excellent option for couples who do not need, or wish, to be constricted by what the "law says." It is optimal for couples who desire to take control of their situation and work matters out in an amicable fashion. We find mediation works especially well with couples who have relatively equal power in the relationship, who are motivated to engage in the process, and who are equally desirous of reaching a resolution. With such parties, some of this things that can be mediated are:

working out custody for the children;
negotiating an interim support agreement,
payment of legal fees; or
determining all aspects of property settlement and full and final divorce,

If you think you are a good candidate for mediation, call us to discuss your situation. We are happy to help you evaluate if mediation is right for you.

August 15, 2014

Prepare for Divorce

Like anything else in life, things usually go better when we prepare for them. Not everyone can prepare for a divorce, sometimes it just comes at us when we least expect it. But if a divorce is something you are contemplating, taking the time to prepare for a divorce, and thinking about how to broach the subject with your spouse can have real benefits.


Understand your finances-
It may seem crude, but finances are a reality that must be considered when contemplating a divorce. You are breaking up not just an emotional partnership, but a financial partnership, as well. Thus it is essential to be knowledgeable about the assets and liabilities of your marital partnership. Gather your financial papers; make copies of recent bank statements, investment accounts, retirement fund statements, credit card statements and other important documents. Get a handle on the monthly living costs are for you and your family.


Consult with an Attorney -
It is wise to consult with an attorney to learn what the divorce, property division, and ,if relevant, child support and child custody laws, are in your state. Having this information may help you decide if divorce is the right thing for you at this time in your life. An attorney also may help guide you about things such as how to think about divorce, inform you about laws that may guide decisions about timing to file for a divorce or support. An attorney also can refer you to other professionals such as a divorce advisor, or divorce financial planner, who can help you make critical decisions.

Schedule a time to meet with your spouse -

Invite your spouse to meet with you at a neutral, quiet and public place. It is better not to meet at home, since for each of you the moment of the talk will be difficult and it is better to limit emotional attachments. One of you may end up living in the family home, and it is better not to have the reminder of "this is the room where he/she told me..."

Plan for the immediate future -
Think about whether you will be moving out of the marital home after you tell your spouse that you want a divorce. , It may be helpful to have a temporary place lined up. If there are children involved, plan for your children. Do not have your children present when you tell your spouse. Your children should be told separately (see blog entry on Talking to the Children) Always it is preferable whenever possible for the two of you to work out custody between yourselves in an amicable way rather than have the Court determine custody.

Continue reading "Prepare for Divorce" »

March 3, 2014

Shared Custody Presents Special Issues

Pennsylvania Court Rules that Schools Must Provide Transportation to Homes of Both Parents

When separated or divorced parents enter into a child custody arrangement, numerous issues may be addressed. The terms of a particular arrangement may dictate which parent's home is the child's primary residence. This designation may impact other issues. A matter that often can get overlooked is the school transportation for children living within the agreed-upon arrangement. Until recently the designation of one home as primary, even in cases of shared custody, could lead to issues regarding parent's rights to receive transportation to school for their children. This could create unwanted litigation and expense, as exemplified in the recent case of Watts v. Manheim Township School District, No. 935 C.D. 2013.
sc.jpg In the Watts case, a father (Watts) and his ex-wife shared equally-divided legal and physical custody of their child, C.W., who spent alternating weeks with each parent. Both parents resided within Manheim Township School District, where C.W. attended middle school, but their homes were located on different school bus routes. In accordance with a new district policy aimed at reducing expenses, the school informed Watts that, while it would continue to provide transportation for C.W. to and from his mother's house, it would no longer transport C.W. between Watts's home and the middle school. Despite the fact that a bus with unassigned seats could accommodate C.W. without adding an extra stop, Watts had to hire someone to transport C.W. to and from school when CW was living with in the custody of his father.
The father, in an attempt to have the bussing services to his home restored, contacted the school and eventually filed a petition with the court. The case reached the Commonwealth Court and the central issue was whether a student is entitled to transportation services to and from two different residences within the same school district. The school district argued that the Public School Code, dealing with school transportation, required merely that the district provide transportation to a resident pupil, which the district said it had done. Watts, conversely, asserted that the School Code required the school to transport a student to and from that student's legal residence and, if the student had two legal residences, the school had to provide transportation to both. Moreover, because the Commonwealth Court had recently recognized that a student in an equally-split shared custody can have two legal residences, Watts contended that the school district's refusal to transport to both residences violated the Code.
The Commonwealth Court agreed with the father, finding that the school district had a duty to provide transportation accommodating both of C.W.'s legal residences. Thus, in situations where both parents live in the school district, the student is subject to equally-divided legal and physical custody, and a bus has available seats and could accommodate the student with no added stop nor expense, the district was required to provide transportation between both parents' homes.
Generally speaking, parents in shared-custody arrangements must determine not only how to arrange for transportation from parent to parent, but also how children will be transported between each home and school. Although the Watts case provides for a favorable result where parents have equally-divided custody, the situation can become more problematic when parents do not have equally-divided custody. Where custody is not equal (and the child has just one primary residence), the school may be obligated to provide transportation only to and from the home of the child's primary residence. This would leave the other parent without a clear way to transport the child to and from school during their custodial period.
The Watts case dealt with just one of the complications that can arise in the area of school transportation, but school transportation issues have important, real-life implications for many shared-custody families. Many parents reading this may be facing a similar issue, while others may be able to account for this now in order to avoid having to deal with such a problem in the future. Although the foremost concern in such matters always must be the best interests of the child, each parent must consider how to meet these needs while also accounting for their own time and budgetary concerns. Going forward, parents would be wise to try and reach a solution that works for each of them. Considering school transportation issues and being able to spot problems before they arise should be helpful when drafting a custody agreements

Consult with your attorney about other issues to consider when working out custody arrangements.

January 23, 2014

Pennsylvania's Child Custody Guidelines

The Odds are Evened Between Parents

The standard for determining child custody is what is in the best interests of the child. However, before Pennsylvania enacted a major change to its' custody statute, which can be found at 23 PA C.S. A. section 5328, how best interests was determined could vary significantly from one county to another or from one judge to another. The enactment of the Custody Guidelines was a legislative attempt to provide a gender neutral, fact specific, roadmap for custody court judges.

Under the Pennsylvania Child Custody Guidelines there are 15 factors that a court must consider when it is asked to determine the custodial status of a child. (for a discussion on custody status generally see blog post Child Custody 101). Under recent caselaw it is clear that trial courts must evaluate each factor individually, and weigh it in the context of all the facts before ruling on custody.


The factors that must be considered under Section 5328 are listed below. A court should evaluate the facts raised by the question and try to determine if the answer balances the scales in favor of

Father - Mother - or Both parents equally

1. Which parent is more likely to encourage and permit frequent and continuing contact between the child and the other parent?

2. Was /Is there present and past abuse committed by a parent or a member of a parent's household? If so, is there a continued risk of harm to the child[ren]. Which parent can provide better physical safeguards and supervision?

3. Which parent has/does perform the "parental duties" on behalf of the child?

4. Who can provide stability and continuity in the child's education, family and community life?

5. Is there extended family available? If this is a factor, the Court should look contacts with siblings, grandparents, uncles, aunts, cousins etc. on both sides.

6. Are there sibling relationships, and how might they be affected?

7. Does the child have a preference? As children get older their desires can be taken into account by a Court. A well-reasoned, intelligent preference on the part of a child will be given weight, although is not a controlling factor.

8. Has a parent attempted to turn the child against the other parent? Except in cases of domestic abuse, where reasonable safety measures are necessary to protect a child from harm, Courts closely evaluate attempts to alienate a child from another parent.

9. Which parent is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs?

10. Which party is more likely to attend to the daily physical, emotional, developmental and special needs of the child?

11. How far apart do the parents reside from one another? What is the travel time?

12. What is each party's availability to care for the child or make appropriate child care arrangements?

13. Is there a willingness and ability of the parents to cooperate with one another? What is the level of conflict between the parents?

14. Is there a history of drug or alcohol abuse by a parent or a member of a parent's household?

15. Is there any issue with the mental or physical condition of a parent or a member of a parent's household?

16. Are there any other factors that are relevant that a court should consider that are not part of the questions above?


Knowing that these are the guidelines that a court must use to determine custody might help some families work out custody arrangements without court involvement. Parents always know their children better than judges. If parents' can be truthful with themselves about the answers to these questions, these guidelines might help them work out informal, agreed or stipulated child custody arrangements put the best interests of the child[ren] first. If a contested custody case should go to Court parents know what the Court wants to hear. The Guidelines are available to help parents be well-prepared on all the points. The Guidelines also can provide assurance to parents that they will receive a ruling that takes all the relevant factors into consideration. With these 16 factors as the context, neither parent comes to court with a presumption or an edge. The facts speak for themselves and the odds of a biased or unfair ruling are evened significantly.

January 22, 2014

PA Child Custody 101

Understanding the ins and outs of child custody can be overwhelming to one who never had to think about the concept before. Most of us think of our children as "our own," and that is it. But if separation and divorce become part of a family story the legal and emotional issues raised by custody can be scary and daunting.

Who and what are our children? Are they property? Are they a part of ourselves? Are they separate precious individuals who we take care of temporarily? Are they all of the above? What happens if parents are in conflict over the children? What happens if grandparents get into the picture and want custody? The answers to these questions are not obvious, and may raise intricate legal issues. If child custody becomes contested, the process can become complex.

If a custody case does not settle and ends up in Court, parents may feel like they are in a foreign territory. When entering a foreign land, having a guidebook with some common phrases often is useful to help calm the nerves. Today's blog is a short introduction to the types of child custody, including important definitions and concepts.

In Pennsylvania, as in all jurisdictions, there are two types of overall Custody: Legal and Physical Custody. This custody applies only to an un-emancipated child (minor) under the age of eighteen.

Legal Custody is the legal right to make major decisions affecting the best interests of minor child. These decisions involve questions around medical, religious, and educational matters. Except where one parent is unable to participate in such decisions because he/she is mentally impaired, medically incapable, or otherwise unavailable, legal custody almost always is shared between parents.

Physical Custody is the actual physical possession and control of a child. It involves where the child will live day to day and who has physical proximity to the child. There are different levels and degrees of physical custody.

Sole Physical Custody
- is rare and almost never ordered except in cases where the second parent is completely unavailable, has abandoned the child, is incarcerated or some other similar scenario.

Shared Physical Custody - is the presumptive status in Pennsylvania. An award of shared physical custody means that both parents share physical time in sole possession with the child. It assures the child of frequent and continuing contact with both parents. Shared physical custody can mean fifty/fifty time with each parent. If this is in the best interests of the child this is the preferred custody. Shared custody is not; however, automatically an equal award of time with each parent. Shared custody can be any proportion of time between the parents.

Primary Physical Custody - For purposes of establishing residency for school, one parent may be designated the parent with primary physical custody. This designation created the legal home address for the child. It was unclear previously what rights the "non-primary parent" had to be provided with school transportation, and many non-primary parents found themselves driving children to school or to a bus stop far away on days they had custody. Most recently, a Pennsylvania Court has ruled that in a case where parents are separated or divorced and share custody a School District must provide transportation to the homes of both parents even where the parents both live in the same school district.* This decision may pave the way to abandon the need for a primary physical custody designation altogether.

Visitation - This is the right to visit with a child. For significant reasons a parent may not be awarded any form of physical custody. In certain circumstances visitation also may be required to be supervised.

Knowing the types of custody is an important beginning to navigating the waters of a contested custody case. Preparation is key. Working with an experienced family lawyer to help you secure the stability, safety and security of your most precious "possession(s)." may be the next step.


* The Pennsylvania Commonwealth Court case that discusses the duty of a school district to provide transportation to home of both parents is Watts v. Manheim Township School District. See the blog entry on school transportation for a more complete discussion of this custody issue.

December 4, 2013

What really is Divorce Mediation and who is it for?

Mediation is a semi- formal process for resolving conflicts. The parties come together in a comfortable setting with a neutral third party who should be a certified mediator. The mediator is there to facilitate a process whereby the participants can safely discuss their issues and come to an agreement. It can be used in Divorce, Custody, Support and many other situations involving conflict. Mediators take specialized classes to prepare them for different types of mediations such as: family, labor, international, etc. If the parties are ready and suitable, mediation can be a wonderful solution because it allows the individuals to work out an agreement between themselves.

As an alternative to the traditional method of divorce, mediation has pros and cons. The positive attributes are that it is an opportunity for the parties to openly and honestly discuss the matters that brought them to this point in their relationship. It is a chance for them to work through some of the emotions, and to see to the future. It can be a time to make decisions (personal and joint) and to show caring and respect for the other party. With the help - but not legal advice of the mediator--the parties will decide how to divide their property in a way that feels fairest to them. The equitable distribution laws of the State of Pennsylvania, or of any other state do not bind them. If children are involved, the parents and not a stranger get to make the decisions about things such as where their children will live, who they will spend holidays with, how college might be paid for, who will be responsible for taking the children to the doctor, etc.

The cons of mediation are related to the pros. Since the parties do all the work, it is important that they are ready to mediate; that they are open to and trust the process; and that they be somewhat equally situated. If one party wants a resolution, but the other is being "pulled along," the process is not likely to work. If one party is not trustworthy, or is unlikely to keep a promise made in mediation, the process will fail. If one party has all the power in a relationship, the couple usually is not suitable for mediation. Power in a relationship can be manifested in many ways. It can be economic, it can be emotional, and it can be physical. If there is a power imbalance the mediation could result in an unfair agreement.

Couples may think they want divorce mediation because they have heard it is less contentious and less costly. In the right circumstances this will be true. But as this article points out, mediation is not for everyone. Also, not all mediators are for right for you. Before accepting a case a family mediator should pre-screen the parties to be sure they are ready to do the hard work, to be sure that both parties are coming voluntarily to the mediation and to check for any other issues that might create a power imbalance. Before working with a mediator, parties should as a couple meet with the mediator and decide if that person is someone they feel comfortable with, and is someone whom they trust as competent to handle the issues and emotions that will arise in sessions.

If you are considering mediation, ask yourselves first if you are good candidates for the process, and then look for a certified and experienced mediator.
For more information, on the process you may wish to read this article that walks through the steps /www.legalflip.com/Search.aspx?cx=partner-pub-6242896814970590:d0ppj2-bauk&cof=FORID%3A9&ie=UTF-8&q=mediation&sa=Search">

or for some more general information go to www.bookspanlaw.com .


October 17, 2013

The Affordable Care Act Could Benefit Divorce

One of the issues facing divorcing couples, especially women, is how medical coverage will be provided for her, and perhaps the children, after the divorce. In most families, medical coverage is provided by the husband through his employer or a business. After divorce, along with the loss of many other financial securities, this coverage goes away. Women who did not work outside the home, or who had part-time positions with no health benefits can find themselves overwhelmed at the prospect of no insurance. Obtaining a "swing" period of medical coverage post -divorce is a valuable benefit to many women that could be the basis for some to negotiate away other valuable items. Some women, perhaps those closer to Medicare eligibility, might choose to remain in less than happy circumstances, rather than risk losing their health insurance.

A positive and perhaps unintended effect of the Affordable Care Act (AFC) is that it benefits those facing divorce--particularly the non-working spouse. Because under the AFC everyone can purchase insurance, and it is based upon their ability to pay ("Affordable"), no one will be left without insurance after a divorce. Moreover, through the "portability" provision in the Act, the non-employee spouse facing divorce may be able to take the family insurance. Going forward, no one will have to give up valuable assets for a few extra years of medical coverage. No spouse will have to worry whether she/he will qualify for or be able to afford individual insurance coverage. if a woman has breast cancer or hypertension, she no longer has to fear divorce, because the AFC bans discrimination on the basis of illness or pre-existing condition. Nor will the newly divorced have to worry about affording coverage because under the new law the average person should pay less rather than more for health insurance coverage.

Divorce is not easy for anyone. Removing one of the most stressful issues--how we take care of our health and the health of our children--is a benefit of the Affordable Care Act. As Judy Resnick of Johnston Resnick Mittman Group commented to MarketWatch "It gives the non-working spouse the freedom to move on and not worry about their health... It will take one of the fears out of divorcing--I think it 's huge."

August 7, 2013

Can He/She Read My Email? Privacy Protections and the Law

In this age of e-mail, social media and electronic communications, people leave behind an inviting trail of information that a curious, jealous or controlling spouse or boy/girlfriend may be tempted to view. If someone suspects his/her spouse of cheating he/she may want to search through emails or text messages for evidence of another romantic or sexual partner. Suspicious spouses even have been known to put software "snooping" devices on a partner's computer to track communications.

Is it legal to read your husband'wife's email? Interceptions of electronic communications can violate a number of federal and state laws. Reading another person's email or texts ( even your spouse's) without their consent is a violation of privacy. But the answer to whether this always is illegal is it depends.

Whether reading emails or other communications is legal or not may depend upon a number of factors, including: whether the email is sitting on a server or is downloaded; the type of device the communication is on; whether the device is personal or shared with others; whether the device is password protected; and if password protected, whether the password is shared. As a general rule, the greater the protections taken to keep communications private, the more likely it will be that intercepting such a communication will be illegal.

As we have seen, from recent news reports regarding data collection by the National Security Agency, sources in our government may be scanning our email, or capturing the phone numbers we dial. However, that fact alone does that give carte blanch to private persons to read our mail or listen to our conversations

If you have any desire to snoop on your partner, or if you have concerns that someone may be snooping on you, it is best to speak with an attorney and learn what the reasonable expectation of privacy is and what is legal


June 30, 2013

Can I Re-Locate with My Child? Re-location under the Pennsylvania Custody Statute

Under the revised Pennsylvania Child Custody Act, which took effect in January 2011, the rules for re-location 23 Pa C.S.A. 5337 are specific. Relocation requires the consent of both parties or judicial approval. The process requires the parent who wants to re-locate to provide written notice by certified mail to the other parent sixty (60) days before he/she intends to re-locate. The definition of "relocate" can mean more than a move out of state. It appears to have expanded to include any residence change that significantly may affect the non-relocating parent's custodial rights.

The notice provided to the other parent must provide specific information including the new address of the re-locating parent, phone number, persons who will live at the new address, ages of who will be living there, information about the new school, the reason for the re-location and a schedule of visitation. It behooves the moving parent to do as much research into the new location as possible before filing a notice so that the notice is thoughtfully presented.

The other parent then has thirty (30) days within which to respond by counter-affidavit in writing to the notice. He/she can agree or oppose. If a parent opposes, a formal hearing will be held at which each party can present evidence, testimony and experts. If the non-relocating parent does not file a counter-affidavit within 30 days he/she is foreclosed from objecting to the relocation.

The standard that a court uses to determine a re-location matter always is what is in the best interests of the child, and the burden is on the moving party (the re-locating parent) to show that the move will promote the welfare and best interests of the child.

June 28, 2013

Determining "Home State" for Custody Under the UCCJEA

When a child lives in one state and a parent files for custody of that child in another state a question of jurisdiction over which state can hear the custody case arises. The Pennsylvania Supreme Court has ruled that in such situations the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) 23 Pa C.S.A. ยง 5401 applies.
So, for example, if Father lives in Pennsylvania and Mother lives in Maryland and Father files for custody of the child in Pennsylvania and Mother wants the case to be heard in Maryland, and asks the Pennsylvania court to defer jurisdiction to Maryland, how is the proper forum determined? In cases such as this, Pennsylvania will use the Uniform Child Custody Jurisdiction Enforcement Act or the UCCJEA.

Under the UCCJEA a Pennsylvania court will look to the child's "home state" to determine jurisdiction. The child's home state is determined by the place that the child resided for six months consecutively immediately preceding the filing of the custody action. The UCCJEA provides that "the state with the closest connections to, and the most evidence regarding a child should decide a child's custody." If the child is very young, or has moved around a lot, and has no home state, then the courts use other factors to determine home state. Among those other factors are significant contacts the Child has with the jurisdiction, such as family contacts, medical contacts, school, etc. The Court also may consider which jurisdiction is more convenient for the child.

If you are involved in a custody case where more than one state is involved, you may wish to consult with your attorney about determining the state where the case should be decided.

April 6, 2013

Pre Nuptial Agreements - May Not Be Romantic, But Surely Wise


One of the wisest things a couple can do prior to marriage is draft a pre-nuptial agreement. A pre-nuptial agreement (pre-nup) is a legally binding contract that sets out how the couple will handle their affairs should the marriage not endure. I believe the pre-nup is important because for not only the obvious protections that it provides to the prospective couple, but also for the process the parties must go through to agree upon a document they each can sign. 1285379_wedding_rings.jpg

In drafting the pre-nuptial agreement, a couple must have open and honest conversations with each other about finances, health, their dreams and goals for the future. Their talks should include how they anticipate how their household will be managed, how duties will be shared (or not), what will happen should one party be unable to work. In considering what will go into the pre-nup, the couple should consider realistic things that will shed light on how they live their lives, including: how they will support one another during separation and divorce, how they will hold property during marriage and divide property in divorce, retirement planning, and retirement accounts (if any), how they wish to have their wealth managed and transferred upon death.

For many years, the pre-nuptial agreement was considered the tool of the wealthy older man marrying the younger woman. No longer. Since the pre-nup is a basic tool that can confirm and or modify certain legal rights and obligations incident to a marriage relationship, anyone can (and probably should) use it. If, for example, one party is coming to marriage with large personal assets, family business interests, or an anticipated inheritance, either the prospective spouse or his/her parent(s) wishing to maintain the family legacy, might desire a pre-nup. In older couples or those coming from a prior marriage a pre-nup can protect the inheritances of children from a previous marriage. In same sex marriages couples may find items unique to their circumstance that best can be addressed in a pre-nup.

When embarking upon a marriage we like to think it is forever. The reality today, however, is that fifty percent of all marriages end in divorce. There are many reasons for this, but failure to fully and honestly think through finances and life choices with your partner before marriage should not be one of the causes. So let us think of the pre-nup as a way to strengthen a marriage rather than just planning for the possible eventuality of its demise. It may not be romantic, but it is wise.