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 Wife 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.

 

How to Have a Peaceful Thanksgiving When you Share Custody – by Kristen Anders Bojarski, Esquire

Posted on by Kristen Anders Bojarski

I love this time of year.  While Christmas is my favorite holiday, Thanksgiving is wonderful too.   It is a time to take a step back and reflect on everything we have to be thankful for.  I am thankful for my husband who understands me better than anyone.  I am thankful for my two fur-kids (although they are not thankful for each other).  I am thankful for my parents and my two sisters, all of whom I am very close with.  I am thankful that I have the type of friends who would drop everything in case I needed them.  I am very thankful and so fortunate to have three wonderful grandparents still living.  I am thankful to be a part of a profession that makes me proud.  I am thankful that my mother and my in-laws do most of the Thanksgiving cooking!

Reflect

As a child custody lawyer, my message to you this Thanksgiving is to step back and reflect on all of the things that you have to be thankful for.  Look at the positive side of things for once.  Although you and your ex did not work out, he or she was a part of creating the children that you have together.    When dealing with an ex that you hate, it can be hard to feel anything but anger towards them.  This Thanksgiving, set side your anger and be grateful that if nothing else, you have beautiful children together.

Be Respectful

When exchanging custody, be respectful and follow the custody order that you have in place.  If you have no custody order, then abide by the terms of the verbal agreement you both have hopefully agreed to by now.  At the same time, be flexible.  If you and your ex split the Thanksgiving holiday, and your ex is running a little late for the exchange, don’t give them a hard time about it.

Be Gracious

If your ex is remarried, be thankful that your child has another person taking on a parental role.  You will never be replaced as the child’s parent, so put aside your jealousy and be thankful that your children have another person to love them and take care of them, and that you have another person who is willing to take on some childcare responsibilities.

Be Thankful

Show your children that you are thankful for their other parent and stepparent.  It would mean the world to them.  It is an enormous burden for children, especially at holidays, to have to worry about hurting their parent’s feelings by loving the other parent or stepparent.  Give them a break.  If you show that not all your feelings towards your ex are hateful, and that you are thankful for them, it relieves a lot of pressure.

Teach Your Children to Be Thankful

Finally, teach your children to be thankful.  In this society, so many people have a sense of entitlement, especially children. When they go out into the real world, it is a shock when they come to realize that nothing is going to be handed to them.  If children appreciate what their parents provide for them (whether it is a lot or a little) and they are taught to value relationships with people rather than things, chances are they will be happy, productive members of society.

Thank you, friends, for taking the time to read my Thanksgiving message.  While you are dealing with the hustle and bustle of the holiday, and dealing with an ex, just remember to be thankful.

Happy Thanksgiving!

Avoid Custody Issues on Halloween by Talking to Your Custody Lawyer

Posted on by Kristen Anders Bojarski

Sharing custody at Halloween doesn’t have to be all “Double, Double, Toil and Trouble!”

The entire month of October is such a fun time of year for children.  It is a month full of fall festivals, pumpkin-picking and hayrides, topped off with dressing up in a costume and trick-or treating in the neighborhood on Halloween.  It seems that every year, however, some children’s Halloween fun gets spoiled because their parents have a disagreement over some Halloween-related matter.  If you think you are going to experience some problems this Halloween, do yourself (and your kids) a favor and talk to your custody lawyer about them ahead of time.  In the meantime, here are some tips:

Be Specific in Your Custody Agreement to Avoid a “Ghoulish” Argument

Make sure that your custody agreement regarding Halloween (and all other  holidays) clearly states which parent is to have the children on Halloween, and at what times.  Depending on where you reside, your agreement might need to specify whether “Halloween” means October 31, or whether it means the date your neighborhood has trick-or-treating.  If the agreement is not clear, talk to your child custody lawyer about this.

Lack of Communication is a Nightmare

If you and the other parent are going to take the children trick-or treating together, make sure to communicate about the details in advance.  Know which neighborhood you are going to take the children trick-or-treating, where you are going to meet, which one of you is going to get the kids ready, etc.  Avoid a potential situation where you and your ex are left arguing in front of the kids because you weren’t able to communicate effectively.

Don’t be a Petty Pumpkin!

Try not to argue about things like Halloween costumes.  If your ex chooses a costume for your child that you absolutely hate, then pick your own costume and go trick-or-treating on a different day in a different neighborhood if it is that important to you. What good would come out confronting your ex about their terrible (to you) choice of costume?  Nothing, except hard feelings.  When co-parenting, you must pick your battles.  This is true for separated and intact families alike.

Avoid Howling at the Other Parent

If it is your ex’s turn to have the children for Halloween this year, and you just know that he or she will allow the kids to stay up too late, eat way too much Halloween candy, watch scary movies that you don’t approve of, etc., it’s time to get over it.  Unless there is a real safety concern, you can’t control what happens during your ex’s custody time.  Every parent has their own parenting style.  Different doesn’t always mean wrong.

Don’t be Afraid to Take the Big Issues to Court Ahead of Time

If there is a bigger issue, such as one parent doesn’t believe in celebrating Halloween for religious reasons, then you must speak with a child custody lawyer.  The custody lawyer would probably tell you that in most cases, parents share legal custody, meaning that they both have to agree on legal custody matters.   While a judge may grant one parent legal custody to make decisions on behalf of the children in very specific situations, it is unlikely a judge will do so when there is a dispute about religion. Lots of parents have different religious views.  In those families, it is actually a benefit for the children to learn different views, and even more of a benefit when they observe their parents tolerating and even respecting each other’s views.

So this Halloween, don’t be haunted by conflict.  Communicate with the other parent in advance to make sure you are both on the same page.  If you expect that there will be issues, talk to your custody lawyer.

 

 

 

Free Internet Child Support Calculators – Worth the Cost?

Posted on by Kristen Anders Bojarski

The internet offers a wealth of information that is easily accessible, literally at our fingertips.  If you don’t know something, just pull up Google on your smart phone, type in a question and receive an instant answer.

So when a client comes into my office for the first time, I’m not surprised when they tell me that they already know what they will receive/pay in child support because they calculated it themselves using a free child support calculator they found online.  Unfortunately, many are surprised when I tell them that the child support calculator did not give them accurate numbers.  This happens for a lot of different reasons.

First, an internet child support calculator arrives at numbers based on the figures and information that you input into it.   If you don’t know child support rules, chances are that you will be inputting wrong information.  For instance, the calculation of one’s net income.  Many people do not know that bonuses, overtime pay, vested stock options, etc., are considered income for purposes of calculating support.  Many people also miscalculate the amount of custody time they have; they think they have primary custody when they actually have shared custody meaning that a shared custody deviation likely applies.  The incorrect calculation of a person’s income or amount of custody time they have can make a huge impact on the child support calculation.

Second, there are a lot of legal issues to consider when calculating child support.  Perhaps the most common is earning capacity.  When a party is not working outside of the home, or they left one job for a lower paying job, it might be appropriate to calculate the child support not on what they are currently earning (or not earning), but by what they could potentially earn based on their education and experience. A free internet child support calculator cannot make this kind of determination.

Third, deviations from the child support guidelines are sometimes warranted when there are extraordinary expenses or needs.  For instance, perhaps a child has a substantial amount of medical expenses due to a medical condition; an upward deviation from the guidelines may be warranted.  Internet child support calculators cannot calculate this.

The lesson here is not to completely avoid free child support calculators you find on the web– I have no problem with clients doing their own research – but don’t depend on them as a source of free legal advice.  Hiring and consulting with a lawyer may be an expense that some people want to avoid, but ignorance can be much more expensive, particularly over the months or years the child support obligation may run.  You just might find that the “free” internet calculator was not worth the cost.

 

Children’s Extracurricular Activities – who pays for what?

Posted on by Kristen Anders Bojarski

Spring is finally here and we have so much to look forward to: warmer weather, a few days off from school, blooming tulips, and Spring-season extracurricular activities!  Growing up, my sisters and I weren’t in a lot of extracurricular activities.  They were expensive, and my parents worked; they didn’t have the time or the energy to cart us around to various places in the evenings and on weekends.  Of course, if we could find a ride and a way to pay for it, we were pretty much given the freedom to join whatever we wanted.  We did get pretty involved in the high school marching band when we were older; we could do our own fundraising then and we had part-time jobs to help cover the cost. Plus, we eventually were able to drive ourselves to practice and football games or get a ride with friends.

It wasn’t until I started practicing family law that I realized that my experience with extracurricular activities is not necessarily typical.  Either that, or things have really changed over the years. I was surprised at the number of cases I come across where the children are involved in multiple and/or very expensive extracurricular activities.

Despite the benefits that extracurricular activities might have on a child’s development and educational career, they can be a source of conflict for families.  For many, the issue is the cost.  Some children are involved in numerous activities throughout the year, the monthly cost of which is equivalent or more to what one might pay for a car payment. Some children participate in camps or competitive/traveling sports which can cost several thousands of dollars each year.

Managing to pay for expensive extracurricular activities can cause conflict between an intact family; one can imagine the issues that come up when parents are separated.  The question I’m often asked is how does the cost of these activities get divided now that the parents are separated and money is more scarce.

Extracurricular activities are a part of child support, and they are generally addressed at the time the child support order is established.  The cost of the activities are apportioned between the parties according to the percentage allocation of their combined net incomes.  In other words, if the child support payor earns 60% of the parties’ combined net incomes, then he or she will pay for 60% of the cost of the extracurricular activity.  The payor’s portion of the extracurricular activity may be added into the monthly support obligation, or the parties may each pay their share to the organization.  The court only allocates the cost of monthly dues, enrollment fees, etc.; smaller expenses for things like socks or cleats are generally considered a part of the monthly child support obligation.

For the court to include extracurricular activities in the child support order, they generally have to have been agreed upon by both parties, but consent cannot be unreasonably withheld.  For instance, if little Susan has been in dance the last 4 years, and dad signs her up for the new season as per the status quo, chances are that the court will allocate the cost for the dance between the parties even if mom suddenly and inexplicably doesn’t agree to the child participating in this activity.  On the other hand, if dad signs little Susan up for a special two-week dance training camp in Toronto that costs thousands of dollars without mom’s permission, then the court will likely attribute that cost solely to dad.

In some cases, parents agreed to the children(ren) participating in certain extracurricular activities when their marriage was intact, but one of them says that they cannot afford to pay now that they are separated and living on one income. In those cases, the court will take into consideration the cost of the activity in conjunction with the income of the parties to determine whether the cost is reasonable, and whether to allocate any of the cost to the objecting party.  This is pretty discretionary.

Some are unpleasantly surprised when the court finds the cost of the activities that were once agreed-upon are unreasonable.

So talk to your lawyer about extracurricular activity expenses when preparing for your child support court date.  If possible, talk to your former spouse about it as well.  If the cost is excessive and more than what you feel you can pay, maybe you will be able to reach an understanding.  Maybe your spouse would be willing to cover a higher portion of the cost, or maybe you should cut back on the activities altogether until your child is old enough to help contribute to the cost.

 

Child Support Conferences and Hearings – No Place for Amateurs!

Posted on by Kristen Anders Bojarski

You have just received a notice and order that your spouse, former spouse, or other parent has filed a complaint for child or spousal support or Alimony Pendente Lite (APL – spousal support pending a divorce), and that you must appear in court for a conference/hearing. This notice gives you a date, time, and place to appear, and a list of documents you must bring to the conference/hearing.

In Allegheny County, both parties first attend a conference before a Domestic Relations Officer (DRO), who uses a computer program to generate a guideline monthly support number based on incomes and other information provided by the parties.   The parties are encouraged to reach an agreement, which will then be typed up into a consent order for support and signed by the parties.  If the parties don’t reach an agreement, they proceed straight to a hearing that day.

In other counties, like Washington and Westmoreland, if you don’t reach an agreement at the conference, you go home.  The DRO issues a recommendation for an order (which goes into effect immediately), and if either party is dissatisfied, they can request a “de novo” hearing (an evidentiary hearing before the hearing officer) which is scheduled at a later date.  Sounds like cake, right?  You can do this yourself without having to pay a lawyer, right?

Not so fast.  The majority of support cases in PA are resolved at the DRO level. Although not all parties consent to the guideline amount of support that the DRO comes up with, many do or at least use the guideline number as a starting point to negotiate. For this reason, it is very important to have a good idea of what the guideline “number” is before the conference.

To prepare for a DRO conference, I always meet with my client ahead of time, have them bring with them all of the documents required by the order, and analyze the facts of the case, my client’s income and the other party’s income if it is available to me, and then run various guideline scenarios on a special computer program designed for that purpose, depending on the facts of that particular case. Although what you can “afford” is not relevant to the amount of the order (many support payers are surprised by this), there are special facts and “deviations” which could affect the amount of the final order.

It is always surprising to me to see how many attorneys show up at a DRO conference without having prepared their own guideline calculations ahead of time.  This lack of preparation is a real disservice to the client, and was described at a CLE (continuing legal education) course I recently attended as “malpractice.”

DRO’s are generally very good at what they do, but they are not attorneys.  In counties like Allegheny, it is not for a DRO to know or tell the parties when a deviation is appropriate.  Plus, DRO’s are human; they sometimes make mistakes.  It is very easy for a DRO to mistakenly calculate the guideline monthly support amount as though one party has primary custody of the children, when the parties really have some sort of shared custody arrangement.  I’ve also had DRO’s mistakenly input a party’s weekly income as monthly income.  It’s easy to imagine how a mistake like this could greatly impact the guideline number that is generated.  If you are prepared and have an idea of what the guideline number should be, it is easy to catch a mistake by comparing numbers with the DRO’s.

If the attorney has not prepared their own calculations ahead of time, how can they possibly know if the DRO made a mistake?  They don’t know, and as a result, they allow their clients to agree to support orders that can be terribly unfair.  Some errors go unnoticed for years, if they are ever caught at all.  Everyone knows someone who complains they are paying too much or receiving too little in child support.  If they didn’t use an attorney experienced in support issues, maybe their order is incorrect.

If you have a support proceeding coming up, insist that you meet with your attorney ahead of time, so that they can go over the documents with you, prepare a guideline calculation, and then determine if some deviation or special circumstance may apply in your case.   If your attorney doesn’t do this, find another attorney.

On the other hand, if you already have a support order established, and it was entered at the DRO level without any preparation beforehand, I strongly encourage you to meet with an attorney to determine if the amount was appropriate considering your circumstances.

Sure, you are entitled to represent yourself, or get your neighbor’s friend who is a real estate attorney to represent you at a support conference/hearing.  I wouldn’t fix a broken leg by myself or go to an eye doctor for it.  Better to prepare properly rather than trying to fix something wrong later.  Sometimes we are unable to fix your mistakes, and you may end up paying a steep price for a bad decision.

An Open Letter to Adult Children of Divorcing Parents

Posted on by Kristen Anders Bojarski

Dear Adult Children of Divorcing Parents:

So your parents are going through a divorce.  Seems odd, right?  We tend to think of divorce like a sickness we acquaint with childhood, such as chickenpox.  If this was destined to happen, your parents should have gotten it over with in your early childhood years, right?  Actually, it is not uncommon for people who are in their later years of life with adult children to decide to get divorced.  There are a lot of reasons for this phenomenon.  Some people choose to wait until their children are grown, some grow apart over the years, some “cheat” on the other, or maybe they just fall out of love and are tired of going through the motions.  Sometimes one parent who has been bullied and belittled (and sometimes abused) by the other during the marriage gets counseling and gets up the nerve to go.

No matter what the reason your parents are splitting up, we have two words for you:  Butt out!

However, once you establish an adult relationship with your parents, you will find that adult relationships are not that simple.   Some things which appear to be entirely the fault of one parent come into focus as more of a shared issue.  You may come to realize that you are identifying with the bullying parent and have disdain for the bullied parent, which you have been experiencing all of your life. Let me give you a clue:  if one parent comes crying to you for support and to get yet on “their side” in the divorce litigation – Run!  You are a child of both parents; if that parent needs someone to talk to, they should get professional help.  Unloading their anxieties and frustrations of the marriage or the divorce litigation on their children is very unhealthy, both for the parent and the child.

We are always concerned when adult children get involved in the divorce litigation to support one parent or punish the other.  (In fact, this unfortunately happens with non-adult children.  If you see a parent unloading on an at-home, minor sibling, step in and tell the parent to stop, and counsel the sibling to stay out of the middle.)   We find that adult children who side with one parent sometimes attempt to “guilt” the rejected parent into accepting an unfair settlement.  It is not for the children to judge or to try to get one parent to take less or “walk away.”  Do you plan to care for the parent who gets less than they are entitled to in the divorce settlement, when they are old and sick and don’t have enough money to support themselves?

If you are an adult child and have concerns about what is happening in a divorce between your parents, ask the parent you are concerned about to schedule an appointment with you and their lawyer to discuss your concerns.  If that parent doesn’t have a lawyer, suggest that they get one.  There is no need for a divorce to be ugly.  If both parents are willing to be civil, then both parents should know their rights under the law.  Their settlement should be fair to both of them.

Once your parent is represented by a competent lawyer and knows their rights, step back.  You – and your parents – will have the rest of your lives to pick up the pieces and begin a different relationship.  You, your parents and your siblings will be all the better for having taken this advice.