Until recently if one party to a marriage would not consent to a divorce in Pennsylvania  there was a mandatory  two year waiting period before the moving party could proceed with a divorce.   On October 4, 2016, Governor Wolf signed House Bill 380, which reduces the waiting period from two years to one.   The new law goes into effect this December 2016.

This law is a major victory for parents and children in Pennsylvania.     Divorce, as we have written here previously, is one of the most stressful times in the life of a family.   It  can be a time of  uncertainty,  anxiety, anger,  fear and depression.   Children may be confused and scared.   A prolonged  waiting period  between unhappy parents  can have serious detrimental effects upon spouses and the children who  may bear witness to fighting and experience instability.

The original legislative intent behind a  waiting period was for family reunification.   Our lawmakers felt that  a longer waiting period would encourage reconciliation.  They  respected keeping families together,  and did not want to be quick to endorse family break up.  In reality, their intention was not realized.

By the time one party makes the heart wrenching decision to consult an attorney and proceed with a divorce filing, the likelihood of a family reunification is almost nil.   Continue reading

Child support is determined by a formula in Pennsylvania.   This formula can be found in the Pennsylvania Child Support guidelines.    Support  generally is based upon  determinable factors, such as:  each party’s  income or earning capacity,  contributions to care,  payment for health insurance,  and the amount of overnights the child(ten) spend with a parent.   Other factors may also  affect the amount of child support.     What constitutes income is defined in the Pennsylvania Code at 23 Pa.C.S.A. §4302.    When the Pennsylvania legislature enacted guideline provisions to determine the amount that parents are responsible to pay to support their children,  it was with the intent to  create uniformity and reduce conflict around this issue.  Yet,  child support remains a hot button for many.  In part, this is because even with guidelines, there remain grey areas  about what income may be available for support,   thus affecting what one parent may owe the other.

Remarried Parent May Have More Income to Support Children 

For single parents sharing custody and support with a parent who has remarried, the burden may feel  unequal.   In certain circumstances looking into the lifestyle of the remarried parent, particularly what he/she pays for in the new marital residence, can support the basis for a request for higher child support.   In a recent opinion, the Pennsylvania Superior Court allowed  the single parent to receive an upward calculation to child support because Father  had greater ability to support his children than what  the guidelines would provide given his earning capacity.   The court found that all of Father’s income was available for support.  The guidelines  take into consideration living costs and expenses, and generally only use the after tax income of the child’s parents and not the income of step parents. However, the law does permit the court to include other household income.

In  the case of  J.P.D. v. W.E.D.. 114 A.3d 887 (Pa. Super. 2015),  the  parents initially disputed the earning capacity of Father.  Father’s expert testified that his earning capacity was $45,725. and Mother’s expert testified that Father’s earning capacity was $70,833.   The Court credited Father’s expert on earning capacity,  but gave an upward deviation  to Mother that was greater than 100% of actual child support guideline amount, based upon testimony at the trial  that Father’s new wife paid all the  household bills and expenses.

Father’s new wife had an annual income of approximately $1,000,000.    Father did not pay for any of his own expenses, including mortgages, car payments, utilities or entertainment.   The re-married father’s  new wife had full control over household expenses and provided for all of father’s needs. Father and his new wife owned the house in which they lived, a weekend getaway house, and another property to be developed. Father leased  a Cadillac for $940 a month and traveled and vacationed frequently. The Court found that since  Father’s new wife provided for  all of Father’s needs, all of his income was available for child support  for his two children from the previous marriage.   As a result, his child support order was for twice the amount ordinarily calculated under the guidelines. Continue reading

The phenomena of divorce over the age of 50, that we have noted before,  does not appear to be slowing . With people living longer and more people looking for fulfillment , love and excitement throughout their lives and into the senior years, and with the increasing “empty –nest” syndrome, the gray divorce trend continues.

If you are contemplating or going through a later in life divorce, there are unique factors that you may confront, and that should be discussed with your attorney and other professional advisors.   We outline some of those here below:

Gather a Team of Trusted Professional Advisors and Seek Their Support and Advice

For many going through what some call a “gray divorce” or “silver separation” this may be a second divorce.   Thus, individuals may be inclined to remember the first experience and use that as a guidepost—even returning to the same attorney. That may not always be wise.   The issues that you confronted in your thirties or forties were quite different from those now facing you. Later in life you may be looking toward retirement, or  already be in active retirement.   You and your spouse have accumulated different and usually greater assets; you may have second families; you  may have different medical issues (either now or coming up); and you may have different needs for support and alimony.     There are different implications for taxes, wealth preservation and transfer.     In addition to needing the advice of an attorney experienced in elder divorce, you may need the services of  an accountant/tax advisor,  an estate planner and a financial advisor.   Your attorney can take the lead in helping put this team together, or you may have professionals you have worked with before.  However.  if you and your spouse shared advisors, now  there may be a conflict for one of you to use any of these professionals, or you may just wish  to hire someone neutral.

Alimony and Spousal Support

Depending upon the assets that are to be divided, and numerous other factors,  alimony may or may not be awarded in your case,  but certainly it is something that must be considered.   The laws of alimony differ in all jurisdictions.   In most states the notion of alimony for life is an antiquated concept.   Even in situations where the dependent spouse has little ability to return to work, or “catch up” financially, it is highly unlikely that she/he will receive a monthly payment for life.   This does not mean, however, that there is no entitlement to alimony,  or for the greater earner, the need to pay.   Understanding rules surrounding the right to alimony, and how to structure the amount and duration of alimony is critical.

Maintaining Good Health Insurance

Having health insurance is essential as one ages and now a legal requirement for all. Continue reading

The United States Supreme Courts’ landmark decision in Obergefell v. Hodges, recognizing same sex couples’ right to marry is only the beginning of the journey through the world of Family Law for same sex couples and their families. Depending on the state and the domestic relations laws of the jurisdiction, adoption, assisted reproductive technology, custody among other issues remain to be decided.    Just recently, the Supreme Court  issued a stay blocking the Alabama Supreme Court from implementing a ruling which refused to recognize a second parent adoption, completed in Georgia, by a lesbian mother of the three children she shares with her ex-partner.

V.L and E.L. were in a long-term same-sex relationship in which they planned and raised three children together, using donor insemination. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live. On September 18, 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgments from other states.  Under the United States Constitution’s Full Faith and Credit Clause, states are required to respect court judgments, including adoption orders, issued by courts in other states. Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.

In Pennsylvania, any individual can become an adopting parent. The court process used by the unmarried heterosexual, gay, lesbian, bi-sexual, or trans-gendered partner who is not the biological parent to adopt their partner’s minor child is called a Second Parent Adoption. This is different from the adoption of a minor child by their stepparent , which is called a Step Parent Adoption. Continue reading

cell-phone-01-1238771or but he said it and I have it on recorded my cell phone

With the ubiquitous use of smartphones, tablets, and other devices, the ability for the average person to secretly record conversations, take video, read text messages, and emails of other persons is widespread. The desire to take advantage of such technology is especially tempting when one believes he/she may obtain evidence that will give advantage in a divorce or a contested custody fight. However, Pennsylvania, has one of the most restrictive Wiretap and Electronic Surveillance* laws in the nation, and engaging in such activity can have wide ranging consequences.

The underlying question that comes up such situations is whether the activity infringes upon a right of a privacy. The test is two pronged: Whether the person whose communication sought to be used has (or had ) a reasonable expectation of privacy in the place or thing searched, and whether that expectation of privacy is one that society recognizes as reasonable.

Continue reading

As a result of the Jerry Sandusky /Penn State child abuse scandal on July 1, 2015, a new law, Persons Required to Report Suspected Child Abuse, 23 Pa.C.S.A.§ 6311, went into effect in Pennsylvania. Its’ impact is widespread. Parent volunteers in schools and others who come into close contact with children now may be required to obtain child abuse clearances before school districts or other organizations permit contact with students. Clearances must be obtained from the state police, and if the volunteer is not a Pennsylvania resident for 10 years he/she must be cleared by the FBI. For many parents volunteering in their children’s schools, chaperoning trips or coaching little league and soccer is a rite of passage. Since the law is relatively new, it has taken many by surprise. Some are annoyed by the bureaucratic paperwork requirements, quite a few are confused, and others simply are reducing their community involvement. Some background perhaps puts the motivation and need for this change in perspective.

Enhanced mandatory child abuse reporting harkens back to the spring of 2008, when the mother of a 15 year old high school freshman reported to the principal that her son had been sexually assaulted. The perpetrator was a prominent retired football coach and local philanthropist whom the student met through a charity organized by the coach to help children from disadvantaged families. The school principal, mandated by state law to report child abuse allegations, referred the student to the county Children and Youth Services department. The matter was investigated by a young social worker unfamiliar with renowned Penn State football coach Jerry Sandusky. She reported the results of her interview with the student to the Pennsylvania State Police. Ultimately the matter was referred to the Attorney General’s office, which obtained a grand jury indictment of the coach.

In 2011, Sandusky was arrested and charged with 40 criminal counts involving at least 7 victims over many years. In 2012, Sandusky was convicted of child sex abuse and is serving a 30 to 60 year sentence. In the process, storied football Coach Joe Paterno’s reputation and legacy were tarnished and Penn State University officials still face trial on perjury charges stemming from their failure to report suspected abuse to authorities.

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

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

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.

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.