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. § 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.

January 21, 2013

What is Marital Property?

Marital property or the marital estate includes all property acquired by either party during the marriage until time of separation. increases in value of certain non-marital property also may be part of the marital estate, but the rules regarding this are beyond the scope of this this entry. It is important to know what constitutes your marital estate because that is the whole of what gets divided subject to the Pennsylvania laws of equitable distribution.

There are different types of assets that fall into the general category of marital estate. Broadly these assets are: Financial this includes financial assets such as bank accounts, investments, such as stock and bond holdings; Personal Property such as, furniture, art, cars, and yes, pets; Real Property such as the family home any vacation home, time share or investment property; Retirement Benefits such as, a pension, IRA, 401Ks, profit sharing plan or any other deferred compensation plans;  and Business Interests

In Pennsylvania, as in most states, assets are divided equitably, which means in a fair manner. This could mean fifty/fifty (50/50), but not always. Depending upon the circumstances, one spouse may get a slightly different percentage, such as 55/45% or 60/40% . A range of circumstances determine the percentage proportion of equitable division.

When looking at the complete marital estate and property division, debts acquired during the marriage also must be considered. Common debts would include mortgages or other encumbrances on property, credit card debt, business loans, college loans, and other personal loans. Debt is not necessarily apportioned equally, and although debt acquired during marriage is marital, courts have discretion to apportion debt to the party most responsible.

Few life situations require such close attention as the analysis of the marital assets and a plan for division. It is important to fully share financial information with your attorney and to feel confident that your attorney understands your financial picture. if you do not already have a financial advisor or wealth manager, it may be advisable to initiate a relationship prior to divorce, and have that person assist in planning, as well. Fear of what the financial future will look like is a realistic and urgent concern for many facing divorce. Knowing your rights and working out a plan often helps to ease that fear.

October 13, 2012

Child Custody and Substance Abuse in PA

Alcohol and/or other substance abuse is a known factor in many domestic relations cases. If one party drinks to excess, or uses drugs it can have an significant impact on the marital relationship and on the children. Tensions build, it can lead to secrecy, alienation, breakdown in communication; there may be episodes of violence, the substance abuse may lead to economic problems if it impacts ability to work or sustain a job, and it causes numerous other problems. Oftentimes, the effects of substance abuse on a relationship take years to manifest because one or both parties may be in denial.
A happy, successful, outwardly stable family can become unstable through the pain of alcoholism. Regardless of what triggers the alcoholism, if this is a factor in your family dynamic, it is important to acknowledge it.

The Pennsylvania Courts take substance abuse very seriously. Because the best interests of the children are primary, Courts carefully will consider evidence of substance abuse in any custody determination. If there is any concern that the health or welfare of a child is endangered by being in the custody a parent who is an alcoholic or substance abuser, primary physical custody could be granted to the other parent , and the substance using parent might be denied physical custody or granted limited supervised partial custody.

The non- substance abusing parent might feel guilt at separating the child(ren) from the abusing parent, and be reluctant to go to a custody hearing. Ultimately, the question to ask is the same as the one the Court will ask... "what is in the best interests of the children?"

If there is substance abuse in your family, if one or both parties are in denial, consider the effects this may have on your children. There are resources available to help. If you do not know where to begin, if you are considering whether to continue in a marriage where this is a factor, if you have questions on how substance abuse will affect custody of your children, contact a family lawyer who can help provide information that will assist you in moving toward a healthier lifestyle.


September 10, 2012

Pennsylvania Non-Consensual Divorce- Broken Beyond Repair

Or Tissues in the Bed

Family Therapist, B Janet Hibbs, PhD. in her book, Try To See it My Way, writes that people who are committed to relationships know how to navigate the annoying issues of daily life that can cause fights between couples. Every couple has issues that need to be worked out because when two people are involved, things naturally will be seen differently. The question is how exasperated do you become when he/she does not walk the dog, or when he/she is late for dinner, or leaves Kleenex in the bed after you asked him/her not to?300148_walking_the_dog.jpg

Your ability to resolve disputes in a fair way, without name-calling, criticism, defensiveness, contempt or stonewalling are critical to the difference between healthy fights and destructive relationship breakdowns. Oftentimes, it appears to be a small incident that brings a client into the divorce lawyers' office. He didn't like what I said about his driving, and the next thing I knew he packed his things and moved into a hotel. One partner may be blindsided by the reaction to what seemed a stupid fight, but in a troubled relationship there is no such thing as a stupid fight.

If you can't get over an issue, ask yourself did a grudge register and fester despite a resolve to let it go? As B Hibbs says Little things that bother us in a relationship are sticky; they build on themselves , because even the petty things in life deserve to be handled fairly. The greater insult to a relationship often occurs not from the disagreement itself, but from how a couple handles it, talks about it and repairs it.

So called "stupid fights" may end up as non-consensual divorces in Pennsylvania. One party may be unhappy for years and planning an exit without discussing it with the other party. Frequently I am asked, Can I get a divorce if my partner won't agree? The answer is YES., but you may have to wait. Pennsylvania law states that if a marriage is irretrievably broken and the parties have lived separate and apart for a period of at least two years , the Court may grant a divorce. However, this time period is not hard and fast. For example, if there is a prospect of reconciliation, the Court may order a continuance, and order counseling.

If you have questions about whether your marriage is broken beyond repair, you may wish to consult with a therapist. If you have legal questions, or are ready to make a change, contact a family lawyer to discuss your options.


References 23 PA. C. S. A. §3901 (d)
Grounds for Divorce in Pennsylvania
B Hibbs, Ph.D. , Try to See it My Way Being Fair in Love and Marriage, 2009

September 4, 2012

Grounds for Divorce in Pennsylvania

Living Together Living Separately

Under section 3301 (d) of the Pennsylvania Divorce law a couple may have grounds for divorce if they "have lived separate and apart for a period of two years and the marriage is irretrievably broken..." What does this mean?

For many people who have been living together, but apart, for various reasons, the good news is that you do NOT have to be living in separate residences. In these times of economic difficulty it may not be feasible for couples to support two households while contemplating divorce, so one spouse may move to another part of the marital home. I have clients who have been living under the same roof, but basically as "room-370625_torn_paper_2.jpgmates" for years. In another case a couple lived separately for over four years, but the husband came back and forth to the marital residence at will. The wife believed fully they were not separated and this was a temporary situation; the husband asserted that the separation began when he first moved out. Since substantial assets were at stake based upon date of separation, and the parties could not agree, the matter went to litigation on this issue.

The law defines "separate and apart" as cessation of co-habitation whether in the same residence or not, and there is a presumption that the time of separation begins when a divorce complaint is filed. The dating of separation, however, often is something the parties do not agree upon.

Since property division is triggered by the time of separation, one party may wish to move the date of separation either back or forward in time. If a spouse is in denial about the marital breakdown, resisting a divorce, or a party is trying to preserve or deny assets, date of separation also may become a issue. If you think this may be an issue in your case, it is wise to discuss it with your attorney.

Reference 23 Pa C.S.A. § 3301(d)

August 24, 2012

Child Custody in Pennsylvania

In the Best Interests of the Child

When parents work cooperatively in divorce, children will fare better. 1187603_fun_with_bubbles.jpg
In an ideal world divorcing parents would be able to put their hurt, anger, grief, conflict and other emotions aside and put parenting their children first. Children may not need (or be able ) to live in a home with two married parents, but they do need to have the continuing contact, love and involvement of both their parents .

Parents in the throes of divorce, however, frequently do not know or understand the law with respect to child custody. As a result of emotional hurt, or out of vindictiveness one parent may threaten that she/he will limit the other parent's time with the child(ren) of the marriage. In a contested custody case the first step is that the parties will appear before a master in a Custody Conciliation hearing. The purpose of this hearing is for the parties to try to work out a custody schedule.
While a parent may feel that he/ she wants to control the amount of time that the other parent has with a child, Masters see things otherwise. A mother, perhaps feeling protective over her child may say "I won't let him have her that much time." The master however may educate the mother otherwise-- telling her that she (mother) does not control the amount of time that the father gest to spend with his daughter.

Pennsylvania law, does not favor one parent over the other. As a result of years of study, the Pennsylvania legislature overhauled the Custody law in 2011, to provide for 15 specific factors that a Court weighs in determining custody in a contested case. Need for stability, availability of extended family, drug and alcohol abuse of a party or member of party's household, safety of the child, are among some of the important factors to be considered to determine the best interests of the child.

When thinking about custody in the words of Psychologist Robert Emery, parents should think not about "fighting over the kids, but fighting for the kids"

References, 23 Pa. C.S.A. §5323
Emery, Robert, Ph.D., The Truth About Children and Divorce Dealing with the Emotions So You and Your Children Can Thrive 2006.