How much Alimony will I get in my Pennsylvania Divorce?

Posted on by Kristen Anders Bojarski

There are a number of factors in the Pennsylvania Divorce code that the court must consider when determining whether to award Alimony.  For purposes of this blog, let’s assume that you are entitled to alimony.  How much alimony will you get and for how long?

It comes down to income and expenses

There is no set formula or guideline in Pennsylvania for figuring out how much Alimony to award like there is for other types of support, such as child support, spousal support and Alimony Pendente Lite. Instead, the amount of alimony awarded is considered on a case by case basis.

Two big factors that the court considers is your monthly net income and your monthly expenses.  You must show the court proof of your income (tax returns, W-2, paystubs, bank statements, etc.) and you must produce a monthly expense/budget sheet.  Failure to show proof of your income and your expenses to the court will likely result in the court not awarding alimony at all.

Let’s talk about monthly expenses

The most important thing I look at when analyzing an alimony case is my client’s monthly expenses.  There is a form excel spreadsheet that I use, but there are many other free monthly expense forms that can be found online, or even software that can be purchased.  This doesn’t have to be complicated, though.  Just take a serious look at your monthly expenses and write them down.  This includes what you pay for rent/mortgage each month, car payment, car insurance, life insurance, gas for the car, car repairs, utilities, phone, internet, etc.  Alimony is for the spouse, not children, so make sure to only factor in expenses for yourself, not any minor dependents.  For instance, if you spend 700 a month on groceries for yourself and 2 children, divide your grocery bill in thirds, (or whatever number you think is most accurate for yourself) and use that number.

For expenses you have throughout the year, but not each month, divide them over 12 months to determine what the monthly cost is. For instance, if you spend $2,000 to go on a yearly vacation, the monthly expense would be $167 a month.

If you anticipate having a monthly expense in the near future that you do not have currently, write that down too.   For example, if you are living in the marital residence while going through the divorce, but expect to purchase your own home or rent an apartment once the divorce is finalized, include what you expect to spend each month for a mortgage/rent payment as your housing expense.

For expenses you currently have, but will no longer have after the divorce is final, include those in your budget, but expect that the court will not consider them in its alimony analysis.  Attorney fees you pay your divorce attorney are an example. You will eventually stop having to pay a divorce attorney once the divorce is finalized.  Sometimes I have my client write two separate monthly expense forms, one for current expenses and one for future expenses.

The key here is that your monthly expenses must be reasonable.

Monthly expenses must be reasonable

When a divorce hearing officer is reviewing your monthly expenses, they will focus on whether your expenses are reasonable or not.  What is considered “reasonable” you might ask?  This largely depends on your particular circumstances.  For example, a budget of $150 a month for clothing may be considered reasonable for a person who must wear dressy suits for work every day in a formal setting, but this may not be a reasonable clothing budget for a person who works from home.

Does our standard of living during the marriage matter? 

The lifestyle of the parties during the marriage is a factor in the Pennsylvania divorce code that the courts consider in alimony cases.  However, the courts generally do not expect that you will maintain the exact same standard of living when the divorce is over.  If you have a $1,000 monthly car payment for a luxury car that you drove during the marriage, the court may not consider it reasonable that you would continue to have such a high car payment when you are divorced.  A $400 monthly car payment for a non-luxury, but dependable car, will probably be considered more reasonable.

Avoid underreporting your monthly expenses

While you need to be reasonable when coming up with your monthly expenses, you don’t want to be too reserved and end up underreporting your expenses.  Monthly expenses can be quite a shock to some people, especially if you are taking a hard look at them, maybe for the first time ever.  Some folks are embarrassed by what they spend.  I often see my client claim $0 spent on entertainment.  Of course you are going to have some “entertainment” expenses!  No one is going to think you are being unreasonable by going out to dinner a few times a month or going on that yearly trip to Kennywood.  Again, the key word here is “reasonable.”

So how much Alimony are we talking about here?

Once I have a number for my client’s monthly expenses, I compare the total number to my client’s monthly net income.  Whatever the difference between the two numbers is what I ask the court to award.  For example, if my client’s reasonable monthly expenses are $3,000, and their monthly net income is $2,000, I ask for $1,000 a month in Alimony.

For how long will I get alimony for? 

Finally, the last question is how long will you get alimony for in your Pennsylvania divorce?  Again, this depends on your particular circumstances, but age is a big factor here.  For a person in their 30’s who has been out of the work force for 10 years to raise children, they will be expected to get back into the workforce (absent a disability or other limitations) as soon as possible.  You must come up with a plan for how long it will take you to become self-supporting.  In this case, alimony would be awarded for long enough to get you through until you can support yourself.  For instance, maybe you intend to participate in a 2-year associate degree program to enter the medical field.  The court may award 2-3 years of alimony in this type of case.

If you are in your mid-50’s, spent your life raising children and taking care of the home, and maybe held a part-time minimum wage job, it is unlikely at this stage in your life that you will go back to college and build a career before you reach retirement age.  In this case, alimony is likely to be awarded until some retirement income starts coming in.  For example, until age 59 ½ when you can access an IRA without penalty (if you have an IRA or will be awarded an IRA in the divorce, perhaps from a 401(k) rollover), age 62 when you can start collecting social security benefits or even when you start collecting your share of your spouse’s pension (if there is a pension) when they retire at age 65 or 67.

As you can see, the amount and duration of alimony is a very complex analysis.  Every case is different. Divorce hearing officers and judges analyze these cases every day, thus they are acutely aware of the kinds of monthly expenses people have, and they have strong opinions on what they believe is reasonable or not reasonable.  They have strong opinions on the duration of the alimony award.  Your monthly expense statement is not something that can be thrown together.  It must be well-thought out, and you must be prepared to back up your numbers.

I strongly recommend consulting with an experienced divorce attorney to address your questions and concerns about alimony in your Pennsylvania divorce.

Will I get (or have to pay) alimony in my divorce?

Posted on by Kristen Anders Bojarski

Alimony is a gray area in Pennsylvania

Many folks believe that there is a set formula for alimony.  These folks usually assume it is one year of alimony for every 3 or 4 years of marriage. I don’t know where on the internet they find this information, but it simply isn’t true, at least not in Pennsylvania.

It’s a secondary remedy and not guaranteed.

In any case, alimony is considered a “secondary remedy” in Pennsylvania.   What that means is that the court is first going to consider how the overall marital estate should be distributed after taking into consideration several factors as provided for in the Pennsylvania divorce code, including but not limited to the overall assets and debts of the parties, length of the marriage, ages of the parties, types of assets, etc.

If, based on these factors, the marital estate cannot be distributed in a way that is “equitable” to the financially dependent spouse, the court will then consider awarding alimony.

Whether to award alimony is based on the facts and circumstances of the parties

Since there are so many factors to be considered, whether or not a person will receive alimony is extremely fact specific.  No two cases have the exact same set of circumstances.

Give me some examples…

For instance, in a case where the parties own a house with moderate equity, the higher earning spouse has a pension, the parties have been married for 30 years, and both parties are in their 50’s, I could see a court awarding alimony to the financially dependent spouse.

However, in a similar case where the parties own a house with moderate equity, have been married for 30 years, both parties are in their 50’s, but instead of a pension, the marital estate has a savings account with $100,000 in it, the financially dependent spouse is probably less likely to get alimony.

In the first example, there is no cash readily available for the financially dependent spouse. Even if the pension is split between the parties, the financially dependent spouse will not see that income until the pensioner-spouse retires, usually in their mid-60’s.  Alimony would have to be awarded to be fair to the financially dependent spouse.

In the second example, there is a significant amount of cash available right now that can be awarded to the financially dependent spouse that can be used to help cover their living expenses.  Since the money in the bank is an asset, however, the court may not think it is fair for the financially dependent spouse to have to use that asset awarded in the divorce to live off of.

If split in half, why should the financially independent spouse get to keep their $50,000 in savings, but the financially dependent spouse has to use their $50,000 to pay their monthly expenses?  In this case, it would be more equitable for the court to award the financially dependent spouse a higher percentage of the cash if it is not going to award alimony.

Consult with a family law attorney

As you can see, determining whether a financially dependent spouse will receive alimony in their Pennsylvania divorce is a very complex analysis.  No two cases are the same.  Consult with an experienced family law attorney to determine whether an award of alimony is likely in your case.

My child is turning 18 years old soon. Will my child support order terminate or be reduced automatically?

Posted on by Kristen Anders Bojarski

Child support ends when a child turns 18 years old or graduates from High School, whichever happens last.

So if your child turns 18 in March, but graduation is not until June, you are on the hook until graduation.

When the child is coming close to their 18th birthday, the court (Allegheny County and Washington County anyway) usually sends a letter or “emancipation inquiry” out to the parties for them to fill out and return to the court regarding the child’s birthday and expected graduation date.  Once the emancipating even occurs, the court will administratively terminate the order as of the emancipation date if that is the only child on the order.  If there are any child support arrears owed, the monthly obligation will continue to be charged until all arrears are paid up.

If there is an overpayment, the court may put a hold on the case prior to the emancipation date to minimize any overpayment.  In that case, the child support obligor still has the child support taken from their paychecks (if the support is wage-attached), but the court holds onto the funds rather than pays them to the obligor.  The court will eventually return the overpaid funds back to the obligor via check.  In the alternative, the court may not put a hold on the case, and instead, schedule a conference/hearing to determine how the overpayment is going to be paid back.

If the emancipated child is not the only child on the child support order, the court will remove the emancipated child from the order, but it will not change the monthly support amount.  Some people assume that if there are two children on the order and one child comes off that the support is automatically reduced in half.  No – this is not what happens.  In this case, it is up the obligor to file a petition requesting modification of the child support order.

Never assume that the child support will definitely decrease when one of the children is removed from the order, however.  If it has been a while since the support order was entered, circumstances could have changed such that the support order would possibly go up rather than down.  The incomes of the parties could have increased or decreased, the Pennsylvania Child Support Guidelines could have changed, the cost of childcare or extracurricular activities could have changed, etc.

Always consult with a child support attorney before deciding whether to file a child support modification petition. 

WILLS AND ESTATE PLANING AND THE COVID-19 CRISIS

Posted on by Barbara J. Shah

Most people have given some thought to getting wills written, but we all think we are going to live forever…or at least for a long time.  Most of us are right.  However, now during this frightening time, many of us are reconsidering our mortality.

We are beginning to think about what would happen to our houses, bank accounts, cars, and other things we own, should something happen to us.  Actually, the Commonwealth of PA has already made the decision for us with regard to a substantial amount, if not all, of these assets.

If you are married and living with your spouse, most likely, your home, cars, and bank accounts are titled in joint names, and our spouses are named as beneficiaries of our life insurance policies and retirement accounts.  In PA, these assets go “by operation of law” (more or less automatically) to the surviving joint owner-spouse, the joint owner(s) of any deposit accounts, and the named beneficiaries of retirement accounts and life insurance policies.  Wills do not and cannot affect these assets. So those of you that are married can heave a sigh of relief.

However, what if you are not married or are a widow or widower, or you have a long-term partner to whom you want to leave your estate, or you want to leave your assets to your family members (or others) unequally?  What if you have a church or a charity you want to leave a part of your estate to?  What if you have a special needs child? What if you want to name the most financially stable of your family members as executor of your estate (An excellent idea)?

In that case, you should seriously consider having a will prepared which will make sure your estate will be distributed in the way you choose.  From long and sad experience, we can confirm that the ugliest fights are among family members after a loved one dies without having made provisions for distribution of his or her assets.

Consider consulting a lawyer to advise and assist you in drawing up this plan. You can prevent hard feelings and the waste of hard-earned money on attorney fees for battles amongst your heirs. Maybe the COVID-19 pandemic crisis is your signal to take care of that important but long-delayed matter of having a will prepared.

As Benjamin Franklin noted, “An ounce of prevention is worth a pound of cure.” 

Stay well and be safe.

CHILD CUSTODY DURING THE COVID-19 PANDEMIC

Posted on by Kristen Anders Bojarski

Governor Tom Wolf issued a Stay At Home order on March 23, 2020 for many counties in Pennsylvania, including Allegheny County.  It is only a matter of time before the entire state will be ordered to stay at home as well.  If you have a custody order of court that provides for shared or partial custody between you and the other parent, there are 4 crucial things you need to know.

Child custody exchanges when you are supposed to “Stay at Home”

On March 24, 2020, Judge Clark, the president judge of Allegheny County, issued an order providing that all custody orders entered before the judicial emergency was declared as a result of the COVID-19 pandemic are to remain in full force and effect.  Governor Wolf’s office has also confirmed that his Stay at Home order does not prohibit travel necessary to effectuate a custody order.

This means that despite the Stay at Home order, you must continue to follow your custody schedule as ordered.  You are permitted to take the children to the other parent’s house and vise versa, meet at exchange locations, etc.  The Stay at Home order does NOT permit you to withhold custody of the children from the other parent.  Whatever you were doing before COVID-19, keep doing it!

Child custody exchange time confusion

A lot of child custody orders state that that the child custody exchange is to occur before or after school, i.e. “The children are with Mother after school until Wednesday before school and with Father from Wednesday after school until Thursday before school.” When are you supposed to exchange custody of the children when school is closed, and you are now WFH or not working at all?

First, look at your custody order – does it have a catchall exchange time for days when there is no school?  If so, follow that.  If it doesn’t, what do you normally do during the summer when there is no school or when there is a random day off from school?  If there is a status quo for how you handled these issues pre-COVID-19, then follow that.  Courts love the status quo- follow the status quo!

If a status quo has never been established, it’s been my experience that judges tend to lean towards a morning exchange time when it addressing these kinds of disputes.

Emergency child custody situations

The courts are closed, but procedures have been put in place to handle child custody emergencies.  Most custody disagreements (such as exchange times) are not emergencies.  Things like kidnapping and child abuse are emergencies.  If you think you have an emergency or are not sure, contact us and we will discuss it with you.

Courts are closed now, but they will reopen soon

You’ve heard the saying to be careful what you put in writing, because the writing could end up before a judge one day.  The same is true for your behavior during the COVID-19 crisis.  One day soon the courts are going to reopen, and judges are going to pay attention to how parents behaved during this pandemic.  Don’t use the COVID-19 pandemic as an excuse to withhold child custody from the other parent.  Do your best to cooperate with each other and coparent for the sake of the children.  Follow your custody order!

As more information becomes available to us, we will pass it on to you.  If you have questions about your custody order or other family law matter, visit our website for information on how we are staying in touch with our clients during the COVID-19 pandemic.

 

Divorce After 50

Posted on by Kristen Anders Bojarski

I represent people of all genders and ages in their divorces. And if I’ve learned one thing, it’s that no client is the same.

 

In my experience, however, women in their 50’s or older struggle the most with divorce.  

 

In general, these are women who have been married a long time. Her life plan was to stay home and raise their children and take care of the household.  

 

Once the children grew up and were off to college or otherwise living on their own, she might get a part-time job while she continued to manage the house and looked forward to grandchildren and the day her husband could retire.

 

This life plan is completely derailed when her husband files for divorce.  Or in some cases, the marriage has been so abusive or unhappy that the wife has no choice but to file for divorce herself.  In either scenario, she is devastated. She feels hopeless.

 

What is a woman who is completely financially dependent on her spouse to do?

 

I will tell you exactly what to do in these 6 steps:

Step 1: Hiring an Experienced Divorce Lawyer

It goes without staying that the first thing a woman should do is hire an experienced divorce lawyer.  

 

A divorce lawyer is your advocate.  They can tell you what your rights are and what to expect.  They will give you direction and tell you what to do next.

 

I’ve been told on numerous occasions by women after an initial consultation that they feel so much relief about their situation after meeting with me.  

 

Even if you feel you can’t afford a divorce lawyer, at least meet with one for a one-time consultation.  

 

Here are some questions you should definitely ask the lawyer during your consultation:

  • Am I entitled to support?  If so, how much?
  • Does my husband have to pay my attorney fees?  
  • What are my rights with regard to the marital residence?
  • Is there anything I should be doing right now?    
  • What is your retainer, hourly rate, and/or fee structure?  

 

It’s helpful to prepare a list of your questions before you meet with the lawyer.  That way, you won’t forget to ask something.

Step 2: File for Spousal Support or APL

Your divorce lawyer probably already gave you a good idea of how much Spousal Support or APL you are entitled to at your initial consultation.  

 

By the way, Spousal Support is support that the financially dependent spouse is entitled to once the parties have separated.  APL (Alimony Pendente Lite) is support the financially dependent spouse is entitled to once a divorce complaint is filed and you’ve raised a claim for APL.  

 

There are some differences between Spousal Support and APL, but they are calculated in the same way.  

 

Once you’ve hired your divorce lawyer, the first thing they will do is file for support and schedule a court date.  

Step 3: Prepare for Your Spousal Support/APL Court Date

Support is calculated based on the net incomes or earning capacities of the parties.  A person’s earning capacity is essentially the most a party can earned based on their education, skill and experience.  

 

Earning capacity is often an issue for financially dependent women in their 50’s, particularly if they are not working at all or are working part-time.

 

For many women, they have advanced degrees, or made significant income before they started having children.  

 

The courts will explore whether support should be calculated based on the most income the wife has ever made, or whether she is able to work full-time.  Typically, when a wife has been out of a certain field for many years, courts will not calculate support based on her highest earnings.

 

However, talk to your divorce lawyer about strategy with regard to an earning capacity issue. Also talk to your divorce lawyer about asking the court to order your spouse to pay your attorney fees.  

 

Here are some things you can do to help prepare for your support case:

  • If you have them, bring your last 3 years of tax returns to your first appointment with your lawyer
  • Give your lawyer your current pay stubs if you are working
  • Give your lawyer copies of your husband’s paystubs, if you have any
  • Be prepared to talk to your lawyer about your education and employment history.  If you have one, bring a current resume to your appointment.
  • Do you have any extraordinary expenses? If so, bring them to your lawyer’s attention.  

Step 4: Start Planning for Your Future

The divorce process can take a long time, sometimes years.  

 

One mistake I see women make is that they wait until the divorce is over to start thinking about and planning for their future.  

 

Now is the time to start asking the tough questions.

 

Can you afford to live in the marital residence based on the support you receive and the income you’re making (if any)? If you can’t afford it, what kind of job can you get?  Is it possible or feasible for you to go back to school or obtain some vocation training? If so, can you start right away?

 

Women have to use the time while their divorce is pending, and while they are receiving Spousal Support or APL to start thinking about and acting on a plan for their future.  

 

Not only does it make sense financially,  but showing the court that you have a plan will strengthen your claim for alimony.  

Step 5: Finalize the Divorce

Most divorce cases settle without going to court.  This means that the parties reach an agreement on how to divide their assets and debts and alimony.  

 

By going to court, it means that a judge decides.

 

There is preparation involved whether you settle or go to court.  This means that assets have to be valued and documents have to be exchanged.  

 

Here are some things you can do to prepare for your divorce case:

  • Gather information on assets – In addition to tax returns and pay stubs, your lawyer will need to see documentation of all assets, such as retirement accounts, bank accounts, vehicles, etc.
  • Gather information on liabilities – give your lawyers documentation of any mortgage, car loan, or other liabilities you might have
  • If there is a marital residence or other real property, ask your lawyer about getting these assets appraised.  

Step 6: Shoot for the Stars

Whether you settle or go to court, your goal is to get the most assets you can get, and the most alimony you can get for as long as you can get it.

 

In PA, the court has to look at many various factors in determining how assets should be divided and whether alimony should be awarded.  

 

The fact that a woman has been a homemaker and raised children while her husband worked outside the home, and that the parties have been married a long time, typically favor a skewed distribution in the wife’s favor.  

 

Alimony is often favored for the same reason.  Talk to your divorce lawyer about what you should ask for and what you should expect. Remember that in the eyes of the law, your contribution to the marriage as mother and homemaker has value.   

You can do this!

Although financially dependent women in their 50’s struggle initially with their divorces more than anyone else, they are the ones, time and time again, that I see come out on top.  

 

They work harder than anyone else and are always more prepared.  One could argue that it is because they have more to lose, but I think it is because strength breeds in the face of adversity.  

If you find yourself in a marital dispute with nowhere left to turn, divorce might be the answer. Call us today to schedule a free consultation to get started on the right foot.

 

The Marital Residence – who gets to stay and who must go?

Posted on by Kristen Anders Bojarski

Most people who’ve been through it would probably describe their divorce or separation as a time of great turmoil and uncertainty in their life.  It’s no wonder that some of the first questions my clients have for me are related to the one thing they believe will provide them with some sense of stability and comfort– the marital residence.

Although some might feel entitled to live in the marital residence because they are the primary caretaker of the children, or they have put lots of work into improving the home, that doesn’t mean that have more of a right to live there than the other spouse.   So who does get to stay in the house and who must go? The answer to that question is that it depends on your case.

How is the deed titled?

If the deed to the marital residence is in your name and your spouse’s name, you can’t force your spouse to leave, and your spouse cannot force you to leave.  If the deed is just in your name, courts will recognize that your spouse still has a marital interest in the home, so if a divorce is pending, neither spouse can simply force the other out.  If no divorce is currently pending, there may be some latitude available to the deed owner.

Once a divorce complaint has been filed, one or both parties can request that the court schedule a hearing to determine which party gets the exclusive right to live in the house while the divorce is pending.  Although it depends on the facts of the case, I often consider this to be an option of last resort.  Preparing for and attending an exclusive possession hearing is expensive, and you usually have a 50/50 chance of winning.

Can you afford to live in the house?

Setting the exclusive possession option aside for a moment, the second thing that must be determined is whether you can afford to live in the house.  Whoever is residing in the marital residence pending the divorce is responsible for paying all costs associated with it, such as the mortgage, home equity loan, utilities, taxes, etc.  To do this, my client and I take into consideration their income (if any), plus any spousal and/or child support they may be entitled to (or have to pay), in addition to their other financial obligations.

When the couple purchased the house, it was while their relationship was intact.  That usually means that either the amount borrowed was based on two combined incomes, or it was based on a budget that was established with the intention of one party working outside the home, while the other stayed home to raise children.  This often means that the lesser earning or homemaker-spouse cannot afford to reside in the marital residence, even with the assistance of child or spousal support.

So what are my options?

If you cannot afford to live in the house, then you should move. As abhorrent as moving out of the marital residence might feel to you, being house-poor is worse.  I’ll be honest; things are going to be tight financially while you go through your divorce. You have to save where you can. You might be concerned about the children moving out of the only home they know, the home they grew up in, but don’t let this stop you.  A house is just wood and nails – home is where their mom (or their dad) is.   Moving to a new home where they can choose the paint in their new bedroom, or get some new decorations is an adventure for them.  If renting your own place isn’t an option, moving in with a family member can be fun for them too.

Assuming both names are on the deed, you can both continue to live in the same house. I have had clients do this, but I would not recommend it for obvious reasons.  You and your spouse will end up fighting a lot (you are getting divorced for a reason), which will make you miserable, and your children miserable as well.

If you can afford to live in the house, but your spouse refuses to go, you should seriously consider being the one to go. In divorce, you have to pick your battles.

On the other hand, if you can afford to live in the house and you really feel that you have good reason to be the one to stay there, talk to your divorce lawyer about asking the court for exclusive possession. If it makes sense in your situation, it doesn’t hurt to try.  We’ve been successful with many exclusive possession cases.

If I move out, am I abandoning my interest in the home?

No!  This is one of the most frequently asked questions I get.  Moving out of the marital residence while your divorce is pending does not mean you are abandoning your interest in it.  If there is any equity in the home, you are entitled to some portion.  If you agree to your spouse retaining the home in the divorce, they would have to buy you out.  If you wish to retain the home, you will have to buy your spouse out- this is something else that should be considered when deciding whether to leave or stay.

Talk to a divorce lawyer

There is no easy answer as to whether you can or should stay in the marital residence.  Everybody’s situation is different.  Your best bet is to talk to your divorce lawyer about the best option for you.

 

 

 

How to Divorce your Spouse without Losing Your Shirt

Posted on by Kristen Anders Bojarski

After many years of marriage, you’ve decided to leave your wife.  Whether it’s because you are no longer in love, or your wife is the devil incarnate, you’ve decided to get out.  You’ve reached a point in your life where you want to choose happiness over misery and freedom over obligation.

There is just one tiny little obstacle between you and freedom, however: your wife.  Well, your legal obligations to her, that is.

You’ve heard the horror stories: a friend of a friend lost their house, pension and their dog in the divorce.  Your third cousin on your mother’s side must work 3 jobs to pay his ex-wife alimony for the rest of his life.  Your co-worker paid thousands of dollars for an attorney only to end up with a terrible settlement.

While a lot of the horror stories you’ve heard are probably exaggerated, it is true that people do get bad deals in divorce.  This doesn’t have to happen to you!  If you follow a few simple rules, you can get through your divorce without losing everything in the process:

Accept what you can’t change

       The law

A marriage is a legal partnership.  When two people form a partnership in order to start a business, like a restaurant or a book store, they make certain promises to each other as far as what will happen to the business should the partnership dissolve, usually in the form of a written partnership agreement.  Marriage is kind of the same thing, except most people don’t have a written partnership agreement (i.e. a prenup) in place when they get married.  In those cases, the PA divorce code sets out the parameters for which the marriage can be dissolved, including how assets are divided and whether alimony should be paid. The law is the law, and you can’t change it.

Don’t freak out, though.  The purpose of the divorce code is to effectuate “economic justice.” It is true that some would argue that the divorce code is anything but just, but in my experience, the law does try to treat both sides fairly.

        Be realistic 

If you and your wife have minor children, and you earn more than her, you are probably going to pay her child support according to a set of statewide guidelines. There is nothing you can do about that because it’s the law. If your wife was a homemaker throughout your marriage, or if your earnings are much higher than your wife’s, and if your ability to earn income and assets in the future are far superior to hers, chances are that your wife is entitled to a skewed distribution of the assets in her favor. That doesn’t mean she will get everything, but she will likely get a little bigger slice of the pie than you.  This is because you have the resources to recover from the financial harm of the divorce more quickly than she does.

Of course, people are free to enter into any settlement agreement they want (as long as there is no fraud, duress, etc.) despite what the divorce code says.  However, both sides need to know what the court would likely order as a starting point in determining how to negotiate a settlement.

      Patience is a virtue

You must accept that the divorce process is a slow one.  If your wife refuses to consent to the divorce, there is nothing you can do about it until you have been separated for an entire year.  If your wife does consent to the divorce, but you have to go through the court process because you can’t reach a settlement with her, that also takes a ton of time.  As much as you want to get things wrapped up, you can’t force your wife or the courts to go at your pace.  Be patient.  You will get there, I promise.

Be Civil

Whoever coined the phrase “hell hath no fury like a woman scorned” must have been a husband in the process of divorcing his wife.

     Beware of the crazy wife

If your wife is angry and bitter about the divorce, refrain from engaging her in an argument.  Although uncommon, I’ve seen particularly crazy wives (see devil incarnate reference above) seek revenge by filing a bogus PFA against her husband.  Those bogus claims eventually get cleared up, but not before the client has had to incur a ton of attorney fees to fight it.  Hopefully you already know if you are married to someone who is capable of doing such a horrible thing; if so, you probably should have gotten divorced a long time ago.

     Chill out

For most people, though, fighting with your soon-to-be ex-wife costs money in other ways.  It takes a lot of money to pay a lawyer to fight your battles, so you should choose them wisely.  Plus, anger consumes a remarkable amount of energy. I’ve seen many cases where the one side is so tired of the fighting that they give in to their wife’s unfair demands just to get it over with.

If you can manage to avoid confrontation with your wife, your chances of reaching a favorable settlement without incurring an arm and a leg in attorney fees are much greater.

Be Fair and Insist on Fairness

When you are engaging in settlement negotiations, be fair. If you’ve been married 30 years, and you’ve earned a 6-figure salary for most of it, but your 50-year-old wife has never worked outside of the home, chances are a deal with no alimony is not fair to her.

If you try to be fair, you are more likely to reach an agreement without a lot of back and forth between lawyers, and without going to court, which saves you money.

       Don’t be a pansy

On the other hand, if your wife refuses to be fair with you, then don’t be afraid to go to the mattresses.  People tend to think that settling outside of court is always the most cost-effective option, but that isn’t true if settling means you must give in to your wife’s outrageous demands.

The court route involves having a hearing before a judge or a hearing officer who will issue a ruling consistent with the divorce code which does its best to treat people fairly.  You could very well end up doing better in court than you would by agreeing to an unfair settlement and avoiding court.

Hire a Divorce Lawyer

Don’t be stupid. Hire a divorce lawyer.  It boggles my mind how many people try to handle their divorce themselves.  If I changed the brakes on my car because I wanted to avoid paying a mechanic, I’d be in serious trouble.  You might think you are saving money by not hiring a lawyer, but I can tell you with certainty that you are not.

An experienced divorce lawyer will tell you what the law is and what your rights are.  They will advise you during negotiations and tell you whether it is better for you to accept a settlement or go to court.  Although the law may require you to pay child support, a lawyer will make sure you are paying the appropriate amount, and not some ridiculous above-guideline number.  If the law supports a skewed distribution of the assets in your wife’s favor, an experienced divorce lawyer will fight to make sure it is not so heavily skewed as to be prejudicial to you.

        Mistakes are expensive

There is no doubt that divorce lawyers cost money, but do you know what costs even more money?  Mistakes.  Stupid mistakes made by people who try to handle their divorces themselves.  Every year we get a couple of cases where we have to try to fix mistakes made by a party who tried to represent themselves in their divorce.  Those people always end up incurring way more attorney fees trying to fix the damage they caused themselves than if they had just hired a lawyer in the first place.

If you want to get through your divorce with as little damage to your bottom line as possible, hire an experienced divorce lawyer from the outset.

In conclusion…

If you follow these simple rules by accepting what you can’t change, doing your best to be civil, are fair with your ex and if you hire an experienced divorce lawyer, you just might make it through your divorce without completely using your shirt.

 

Child Custody Lawyers Can Help Victims of Domestic Violence Protect Themselves and Their children

Posted on by Barbara J. Shah

You’re not alone

According to an article by Jennifer O’Neill in the February 2016 issue of Good Housekeeping magazine, Domestic violence is “a quiet epidemic.”  Though most of them are in plain sight, the victims are often “invisible,” as they deny the situation and pretend to live in a happy home.

But the statistics reveal a shocking reality.  Every nine seconds, a woman in America is assaulted or beaten, according to the National Coalition Against Domestic Violence.  O’Neill notes that a mind-boggling one in three women and one in four men has been a victim of physical brutality by an intimate partner, making intimate partner violence “the single greatest cause of injury to women,” according to the DVIP – Domestic Violence Intervention Program.

These statistics do not come as a surprise to us.  We’ve had many clients who are not upfront with us about the abuse they’ve endured. Even though they might be in the process of divorce or custody litigation opposite their abuser, they feel afraid or ashamed to talk about the abuse.  Once we’ve established a strong attorney/client relationship, however, these clients feel comfortable enough to confide in us, which helps us to better advocate on their behalf.

To illustrate the scope of the domestic violence problem, O’Neill explains, the number of women killed by a current or former male partner added up to nearly DOUBLE the soldier lives lost in war in Afghanistan and Iraq over the same 11-year time frame. Despite the alarming statistics, Amy Sanchez, director of Break the Cycle, suggests that as a society we often close our eyes to it.  Unlike heart disease or smoking, domestic violence is often considered a “private issue,” or a “family matter,” and people don’t talk about it.  In fact, according to the DVIP, the majority of marriages WILL include some violence; the FBI estimates that violence will occur during the course of 2/3 of all marriages.

It seems like domestic violence incidents are a regular headline in the news

Domestic violence and its impact on children

According to a publication in 2014 by the Childhood Domestic Violence Association, children from homes where there is violence are much more likely to experience significant psychological problems, both short and long term.  Many of them meet the diagnostic criteria for PTSD, and the effects on their brains are similar to that suffered by combat veterans.  Living with violence even ages a child’s DNA, aging them prematurely 7-10 years. Those children who grow up with domestic violence are 74% more likely to commit a violent crime against someone else.

Leaving a domestic violence situation

Obviously, removing children from an environment where there is domestic violence would appear to be the solution, but the answer is far from easy.  For one thing, only 34% of women injured by their domestic partner receive medical care for their injuries, and even fewer get law enforcement involved.  Just 25% of domestic physical assaults against women are reported to the police annually. Sometimes, the reason women stay in abusive relationships is fear of death or serious injury, if they leave.  Women are 70 times more likely to be killed in the 2 weeks after leaving than at any other time during the relationship, according to the DVIP.  And for the half of women who DO manage to leave abusive partners, an estimated 98% of abused women also experience “financial abuse,” in which their partner controls all of the money. Leaving will often cause abuse victims to lose their jobs, so they may escape, but with no income or financial resources.

However, it is important for victims of domestic violence to know that they have rights and resources available to them.  In Allegheny and surrounding counties, there are shelters that women and children can stay in if they are in danger.  These shelters are in confidential locations, and the courts are required to keep their locations secret in custody, divorce and child support proceedings.  Some of these shelters even have programs that allow women and their children to reside in apartments or houses (also at secret locations), for minimum rent to enable to the victim of domestic violence to get back on her feet and learn to live independently from her abuser.

Because the courts keep these locations secret, women should not fear that filing for child and/or spousal support will lead their abuser to them.  In addition, the Allegheny County Family Division, it’s satellite offices, and the Washington County Courthouse have many Sherriff’s deputies on standby.  If there is a concern that an incident will occur at a child/spousal support proceeding, we simply have to notify the court ahead of time, and they will make sure that deputies are nearby and watching.

Domestic violence victims shouldn’t be afraid to obtain a PFA

Among the 1 in 15 kids exposed to domestic violence, a heartbreaking 90% are eyewitnesses, who will feel the effect of it for their entire lives.  Assuming the mother of the children is able to take the children and leave her abuser, the abuser will often turn to the courts to continue his abuse.

As noted above, it is usually the abuser who has the superior financial resources, and they often use them to battle their ex-partners in court. Protection From Abuse (PFA) orders are required to be obtained almost immediately upon the experience of a threat or domestic violence, but as we know, most victims don’t report these assaults to the authorities or delay in doing so, thus robbing the courts of jurisdiction to enter them.

Victims should not refrain from attempting to obtain a PFA just because they think the court wouldn’t grant one, however.   In most cases, the court will grant Temporary PFA’s for a period of 10 days.  This means that the victim has at least 10 days in which the abuser is prohibited from contacting them before a final hearing on the PFA is held; this small window in time can enable the victim to secure housing for herself and the children, as well as file for child support.    At the time of the final PFA hearing, the PFA Plaintiff (the victim) is provided a lawyer for free to represent them at that final PFA hearing.  These lawyers are very qualified and experienced in handling PFA matters.

Domestic violence issues are a challenge in custody cases…

In custody cases, however, there usually is not enough funding to provide free lawyers for victims in custody cases, at least not in Allegheny and Washington counties.  When represented by an effective lawyer, abusers often deny the problem, making it a he-said-she-said  issue. Even in cases in which children appear in court in these custody or visitation issues, the mothers are often accused of instilling false stories in children’s minds to turn them away from the other parent.  It is essential that the victim of domestic violence have a child custody lawyer represent her.

We’ve found that there is such a strong inclination by the courts to see every case as a potential shared custody case, it can be difficult to get the court to focus on the very real issue of domestic violence and its effects on children, as well as the potential effects of allowing the abuser to have unsupervised custody of his children.

Very few courts have funding available to appoint a guardian ad litem (independent spokesperson) for children involved in custody disputes, or the funds to get unbiased studies on the parents and children by psychologists.  Supervised custody programs are also rare, because there is simply no source of funds for provide safe visiting arrangements for most of these families.  In fact, there often appears to be an unwillingness by judges to restrict contact between children and abusive parents, under the theory that “children deserve time with both parents.”

…but not insurmountable!

Fortunately, this is a problem that PA is starting to recognize in determining awards of custody. In 2011, a new custody statute was enacted which requires the court to consider the safety of the child as the most weighted factor in determining awards of custody.  The court must also consider “the present and past abuse committed by a party or a member of the party’s household, whether there is a continued risk of harm to the child or an abused party, and which party can better provide adequate safeguards and supervision of the child” whenever making a determination of an award of custody. So, when a parent is abusive towards the other parent or the children, the court must consider whether there is a continued risk of harm to the child and decide which party would adequately protect and safeguard the child from further abuse.  The custody statute also provides that in cases of domestic violence where safety measures are necessary to protect the child from harm, the courts cannot consider such measures an attempt to turn the child against the abusive parent. (See 23 Pa S.C.A_§ 5328)

The requirement that the courts consider the safety of the child is often at war with its need to fashion some kind of custody schedule.  Unless there are cases of extreme abuse, the courts are unlikely to prohibit the abusive parent from seeing the child at all.   This is a particular challenge considering the lack of facilities and organizations available to provide supervised visits.

We’ve found that if we can come up with a creative solution that will ensure the safety of the child but that allows time for visitation, the court will often grant it.  In many cases, we request that a trusted family member or friend be present for the visits, or visitation in a public place.

As your child custody lawyers, WE CAN HELP!

If you’re a victim or family member of a victim of domestic violence, don’t try to go it alone.  You should schedule at least a consultation appointment to learn what avenues of assistance are available to victims of domestic violence and their children.  We can help file for both child and spousal support.  We are experienced child custody lawyers, experienced in fighting for survivors of domestic violence and their children in court.  We are familiar with counseling and other kinds of services available for those who are coming out of a domestic violence situation.  We’re here to help.

 

 

Dispute between Parents over Football Leads to Custody Litigation

Posted on by Barbara J. Shah

Can one parent overrule the other parent on the question of a teenager playing football?

  A Pittsburgh-area Dad wound up in court in his attempt to prevent his youngest son form playing high-school football.  Alarmed about the link between football and long-term brain damage, John Orsini tried to persuade his ex-wife to prohibit their youngest son from playing high school football.  When she refused his request, she noted that he should be allowed to continue playing because he understood the risks. She thought Dad was just being overprotective.  However, as the former head of a leading divorce lawyer association stated, the “football controversy” is actually a real medical issue.

Courts have tried to stay out of micro-managing custody disputes

So what was Orsini to do?  Local Family Court Judges strongly favor a joint or shared legal custody situation, in which important decisions are shared between parents who are separated or divorced, although physical custody arrangements which set forth the days or times the children stay with which parent may be substantially different.   However, the courts have been reluctant to get involved in decision-making relating to the children, finding that a slippery slope that encourages “revolving door” parents to come back again and again for little disputes, particularly when there is high conflict between the parents. A few years ago, Family Courts began to use “parent coordinators,” specially -trained mediators who would work with the parents and try to resolve their differences, but when agreement could not be reached, the parent coordinator was empowered to choose the position that he or she felt was best for the child.  The law which was passed to enable this procedure gave the disappointed parent the right to challenge that decision by asking the judge of the case to hold a hearing on the issue. However, within a year or two after the law was passed, the PA Supreme Court declared it unconstitutional.  Back to the drawing board.

The struggle over football is a serious issue

As reported by the New York Times on March 5, 2018, it is impossible to say precisely how many disputes over football are occurring in family courts, but it is clear that across the nation there have been increases in custody litigation related to children playing football (or hockey).  In Orsini’s case, Orsini has always been an enthusiastic supporter of football; their oldest son plays football in college. However, his view of the game changed when their second son experienced 3 sport-related concussions. Orsini felt that his son’s doctors were taking them too lightly, when they kept releasing him to play, telling Orsini that there was no medical evidence that his son should not continue to play.  Having worked as an attorney, he felt that the doctors were less than forthcoming about the risks.  He undertook research and found, among other things, that Boston University researchers reported cognitive problems in boys who began playing tackle football before the age of 12.  He instructed the school to prohibit their son  from practicing and playing football, on the ground that he and his ex-wife had joint legal custody.  Initially the school complied with his request.

What remedies are available to parents who disagree?

Orsini’s ex-wife, Janice, filed an emergency request in Family Court to allow their son to play football, arguing that she was just trying to maintain the status quo.  Mr. Orsini came to court and argued that playing football should not be considered the status quo, since their middle son had already suffered three concussions, and that common sense, together with the results of research on the brains of young boys, dictated that the son’s best interests would best be served by not permitting their youngest son to play football.  Initially, the judge allowed Mr. Orsini’s ban to stand, but 3 weeks later when Mrs. Orsini filed a petition to gain sole legal custody of their son related to this issue, the judge agreed with her and agreed to let the boy resume playing football while the case went through the regular process required of petitions for modification of custody.  The case is now going through the mediation process, but no positions have changed.  It is likely that it will be scheduled for trial at which point the judge will have to choose which parent should have legal custody to decide whether the child can play football.  In the process, the parents’ relationship, already contentious, has been badly strained, and the sons now rarely speak with their father.  The case has dragged on, and Mr. Orsini fears that if he can’t stop his son from continuing to play football, that he is on track to have serious brain damage done.

No solution seems close for this dispute.