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.

 

Practical Advice in Choosing the Right PA Divorce Lawyer

Posted on by Barbara J. Shah

Choosing the right lawyer to handle your divorce is not an easy one, and it certainly isn’t a decision one should make lightly.  But with the thousands of lawyers that are currently practicing law in Pennsylvania, how do you make the right choice?  Read on for some practical advice in choosing the right PA divorce lawyer for you:

Beware of Lawyer Rating Services

Many younger PA divorce-seekers do a lot of divorce research on-line, or they assist older divorce-seekers in finding information online.

Most of the online lawyer rating services are unreliable, IMHO. We don’t know all of the lawyers in our area of Southwestern, PA who do divorces, but we pretty much know who the good ones are.  We see that some lawyers have high ratings that we believe are totally unjustified in terms of our knowledge of their expertise in handling divorce matters.  It seems old fashioned, but word-of mouth referrals are usually your best bet.  Ask people you know who’ve been through a divorce for a referral!

Insist on Meeting your PA Divorce Lawyer in person

Many divorce seekers (or seekers of divorce information) don’t know what to expect from lawyers during their consultation appointment, or thereafter.

It is virtually impossible to conduct an effective consultation appointment over the telephone, or in an internet chat; we need to look each other in the eye and gauge whether we are getting accurate information or whether the information we are giving the potential client is getting through. Some clients lie…

You Get What You Pay For

If a divorce lawyer is offering you a “free consultation,” they must not be busy enough; there may be a reason for this…

If the divorce lawyer has no support staff, or works out of his or her basement, maybe they are building up a practice (hey, I started by sharing law office space with an established lawyer), but bear in mind that it is likely they may not be available to you when needed, as they have to go to court, write pleadings, answer telephone messages, etc. all by themselves. Yes, voice mail and text messaging is handy, but if you have a burning question, it may be cold comfort to you.

As a corollary to the above, then, bear in mind that a lawyer whose fees appear to be “cheap” or much less expensive than others, may have insufficient support staff. Personnel and offices and computer systems cost money, but they make the lawyer much more available to answer important client questions and take action in emergencies.  If you don’t get a response within 24 hours to an urgent question, (it should be the same day), it brings a level of anxiety into the process which experienced lawyers want to avoid.

Just because a lawyer is expensive, however, it doesn’t mean that they are the lawyer for you. Ask around, find out how satisfied friends or relatives or co-workers have been with their divorce attorneys (or how impressed they were with the skill level of their spouse’s attorney).

Real, practical advice = Good Advice

The right lawyer for you will take in a great deal of information about you and your marriage, your children, and your spouse, and they will educate you on the divorce, support, and custody laws of Pennsylvania. They will tell you hard truths, truths you may not want to hear but need to know.

The right lawyer will have a sense of humor, be able to relate, but will not feel sorry for you. We must analyze the situation as the court would and work to develop a strategy to reach an outcome that is acceptable, in the long run. As changes occur, they will keep you informed and will modify the strategy, with your approval.

Communication is Key

The right lawyer will keep you informed and will communicate with you regularly, usually by email, and will want your input and response to actions and communications in your case.

Your lawyer will charge you for all communications, telephone, email, written, etc., because he or she has nothing to “sell” but his or her time. Don’t expect them to work for free, particularly when they have an office, staff, and other overhead expenses.

Divorce Lawyers should be Tough, but Professional (even if you secretly hope they beat your ex into a pulp on the courtroom floor)

Your lawyer will very likely know and hopefully have a cordial relationship with your spouse’s lawyer. Our job is not to hate or scorn the other side; our job is to get the best result for our client, and we have learned that cooperation, not flame-throwing, is the best way to achieve this with a minimum of expense.

Few Surprises

It is possible but unlikely that you will be unhappily surprised by developments in your case, if you have been listening to your lawyer and following their instructions. Most experienced divorce lawyers are fairly good predictors of outcomes and are trying to save you attorney fees and anxiety by attempting to settle your case, along lines you have already discussed and are prepared for.

Choose Wisely

 

If you hear someone complaining that divorce lawyers are money-grubbing thieves, it is possible that they have had a bad experience with their lawyer.  We have met many of those people, and we have performed case “rescue missions” more times that we can count.  Or it is possible that they had unreasonable expectations or are trying to get something for nothing.  Choose wisely.  Your future may depend on it.

 

 

Bifurcation is Still Alive and Kicking in PA

Posted on by Barbara J. Shah

Last month we posted a blog article on bifurcation of divorces in PA.  As we explained, the term “bifurcate” means to divide something into two parts.  When applied to a divorce, to “bifurcate” means to grant a divorce, giving a person the right to legally remarry, while other issues, such as property division and alimony, remain pending.  While bifurcation can happen in PA, for divorces granted after 1980, it has become relatively rare since the divorce law was amended in 2004 to require that all claims related to a divorce be resolved before a divorce is granted, except in rare and unusual circumstances.

Last week, the PA Superior Court, the appeals court which decides on appeals from PA trial courts (called Common Pleas Courts) posted a decision that reminds Pennsylvanians that bifurcation is alive and well for divorces granted between 1980 and 2004. The divorces to which this concept applies is the “3301(d)” divorce, the divorce in which one spouse files for divorce (the “plaintiff”)  and then files and serves a notice on the other spouse (the “defendant”) that the parties have lived separate and apart for two years (or 3 years prior to 1987 divorce law amendments), and the other spouse takes no action other than to file a response (called a “counter-affidavit”) saying they agree on the period of separation, but they want to raise claims (such as for property division, alimony, etc.).   In this recently-decided case, the plaintiff  (husband) served the divorce complaint and the 3301(d) affidavit on the defendant (wife) in 1998, and the wife, apparently unrepresented, filed a counter-affidavit stating that she wanted to raise a claims for property distribution.  She didn’t file any claims, however.  The husband’s attorney filed the paperwork to make the divorce final, indicating that “property distribution” was still pending.   The divorce was granted by the court, noting in the decree that the court retained jurisdiction to resolve any issues raised but not settled before the divorce.

Fourteen years later, the ex-wife apparently saw an attorney who reviewed the court records and decided that ex-wife might still have a valid claim to ex-husband’s pension.  The attorney filed the paperwork to raise a claim on ex-wife’s behalf for property distribution.  Ex-husband’s attorney filed a motion to dismiss ex-wife’s claim on the grounds that she had never actually raised the claim before the divorce was granted, and that it had been too long since the divorce to raise any claims.  The trial court judge agreed with ex-husband and dismissed ex-wife’s claim. Last week, the Superior Court reversed the trial judge and reinstated ex-wife’s claim for property distribution.

Creative lawyering strikes again!

Bifurcation in a Pennsylvania Divorce Proceeding

Posted on by Barbara J. Shah

The term “bifurcation” means to divide something into two parts.  When this term is applied to a divorce, it generally means, “Can I get divorced – legally free to remarry and file my taxes as single – while other issues such as property division are still pending?”  Before 1980, the term did not apply to PA divorces.  The only kind of divorce allowed before that was a “fault” divorce (where the spouse who wanted a divorce had to allege “grounds” for divorce – that they were entirely innocent and the other spouse had committed such bad acts as to cause the marriage to fail – and then prove those grounds in a trial). If they were successful, or if the other spouse simply didn’t put up a defense, the divorce was granted. Property division was easy, as it followed “title.” that is, if a bank account or a pension or a piece of real estate was in your name, you owned it after the divorce, free and clear of any claims by the other spouse.  If an asset was owned jointly, it was to be split between the parties 50-50.  There was no post-divorce alimony.

If you thought that was still the law in PA, you are more than 35 years behind the times!  The Divorce Code of 1980, which became effective that year, revolutionized divorce law in PA. Many Pennsylvanians had been living separate and apart for many years, resigned to fact that that if they were not the “innocent and injured spouse,” they could not get a divorce from their former loved one.   Suddenly in 1980, the floodgates opened. “No-fault” divorce became legal in PA.  As originally written, the law granted the right for a “guilty” spouse who had been living separate and apart for 3 years or more to request a divorce from the “innocent” spouse by filing an affidavit alleging a 3 year or more separation, and serving it on the other spouse.  Suddenly there was no defense to the divorce, and the best thing the defendant/spouse could do was to request from the court a fair property distribution and some alimony.  For other just then separating couples, it gave the left-behind spouse a 3-year window to get ready for the divorce.   In 1987, the law was changed to turn the 3-year separation requirement into a 2-year separation.  By 2016 it left PA one of the few states in the US with a long separation requirement, possibly the longest one.  However, in 2016, the PA legislature again changed the law to allow a party to request a divorce from the other spouse after only a 1-year separation (so long as that separation began after December 3, 2016).   Of course, if both spouses agreed to a divorce under the 1980 Divorce Code, they could file their consents to the divorce at any time after 90 days from the date the divorce was served on the other party.  That portion of the law has never changed.

However, this entire discussion about “no-fault” divorce involves the divorce only; property division, (called “equitable distribution” by the new divorce code”), alimony, and requests for attorney fees could not be addressed until grounds for a divorce had been established.   Unlike the previous “title” approach to property division, equitable distribution assumes that everything acquired during a marriage by either party, regardless of title, is “marital property” and will be divided between the parties according to what is “fair,” by the courts, if the parties are unable to agree.

During the period when a “no-fault” divorce could only be requested after a 3-year separation (or even a 2-year separation) in PA, bifurcation was a hot topic. In addition, those couples who had been separated for (sometimes many more than) 3 years at the time the new Divorce Code became effective, were anxious to move on with their lives.  They wanted a mechanism whereby the divorce itself could be granted while property division was pending.   Initially, the courts often “bifurcated” divorces as a matter of course.  However, because of the problems of dividing pensions, pensions beneficiary designations, the loss of health insurance, and a host of other issues, the courts began to deny bifurcation if one spouse said no.  In 2004, an amendment to the Divorce Code put an end to bifurcation of divorces.  Although under certain extreme circumstances divorces can still be bifurcated, especially now that the one-year separation rule has gone into effect, requests for bifurcation are less and less likely to be made, and less likely to be granted by the courts.

3 Mistakes to Avoid When Hiring a Family Law Attorney

Posted on by Barbara J. Shah

Family law attorneys are experts in many different issues. They’ve dedicated their practice to helping families solve problems and create solutions. Whether you’re facing divorce or are in the process of adopting, an attorney can assist you. When seeking the help of an attorney, there are a few common mistakes that people make. Avoiding these mistakes ensures that you retain proper representation and that your legal troubles are handled correctly.

Waiting too long to hire an attorney

Many people wait too long to hire an attorney. Instead of searching out the right representation as soon as the situation calls for it, they wait to see how things play out. Maybe they think that they can work things out without an attorney or maybe they spend too much time researching which attorney to hire. Either way, it’s important to hire an attorney quickly to ensure that you’re treated fairly throughout the process.

Hiring an attorney that doesn’t specialize in Family Law

While it’s important to hire someone quickly, it’s more important to hire the right person. There are dozens of attorneys out there. Chances are you probably know an attorney. Not every lawyer should be trusted with your case. It’s important that you find an attorney that specializes in family law, has passed the bar, and has experience in dealing with cases like yours.

The attorney that you do hire should be able to give you some basic answers up front. Many people make the mistake of hiring an attorney that looks good on paper, but doesn’t give them the right information from the beginning. Whether it’s their financial policy or their strategy, a good attorney will always be transparent.

Hiring an attorney that you don’t trust

Finally, don’t make the mistake of hiring an attorney that you don’t feel comfortable with. You’re trusting your finances and the future of your family to your chosen lawyer. It’s important that you trust them and feel confident in their ability to represent you.

The Shah Law Group, located in Bethel Park, is your source for legal representation. Our practice was built on the philosophy that each client interaction should be handled carefully and efficiently. We continually strive for exceptional communication and compassion. No matter what your legal issues may be, trust the Shah Law Group to handle them.

Explore your legal options by visiting www.shahlawgroup.com.

Why Can’t Things Just Stay the Same?

Posted on by Barbara J. Shah

I have been practicing primarily Family Law for more than 30 years.  When I first began my law practice, the “new” Divorce Code of 1980 was still trying to be understood by the PA populace.  Until then, the only way it was possible for a couple to get a divorce in PA, the “innocent and injured spouse” had to filed a divorce complaint listing the terrible things his or her spouse had done to make the marriage final, then there had to be a trial on these issues, and the court would enter a divorce decree. Many Pennsylvanians had been living separate and apart for many years, resigned to the fact that, if they were not the “innocent and injured spouse,” they could not get a divorce from their former loved one.   Suddenly in 1980, the floodgates opened.  As originally written, the law granted the right for a “guilty” spouse who had been living separate and apart for 3 years or more to request a divorce from the “innocent” spouse by filing an affidavit alleging a 3 year or more separation, and serving it on the other spouse.  Suddenly there was no defense to the divorce, and the best thing the defendant/spouse could do was to request from the court a fair property distribution and some alimony.  For others just then separating couples, it gave the left-behind spouse a 3-year window to get ready for the divorce.   In 1987, the law was changed to turn the 3-year separation requirement into a 2-year separation.  By 2016 it left PA one of the few states in the US with a long separation requirement, possibly the longest one.  However, in 2016, the PA legislature again changed the law to allow a party to request a divorce from the spouse after only a 1-year separation.  What this means is that if you were the left-behind spouse, and for some reason had no idea it was coming, you have a year to cope with the anger, frustration, and fear, let alone the financial adjustment, before grounds for a divorce have been established.  Sadly enough, this is a very difficult process for many of them.  Whether the marriage was a short one or a long one, the shock of your spouse telling you they are leaving and want a divorce is often extreme.  Why me?  We made promises to love and cherish each other for the rest of our lives, and here my spouse is leaving me.  Why can’t things just stay the same?

I have learned that the answer to this question is a painful one.  My husband of nearly 55 years passed away a few months ago. At first I was extremely sad, wondering why I had to go through this, it was unfair.  Slowly I have come to the realization that sad events will happen to us throughout our lives, and the way we deal with them will set the tone for how we deal with others.  I have my adult children and my grandchildren.  I have friends.  I have clients.  I had to pick myself up and stop feeling sorry for myself and begin to make a life that was entirely different from before.  Of course, I wish things could stay the same, but they cannot.  I have accepted that and look forward to good times with my family and friends in the future.  And you can too.

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.

My Spouse Left Me – Now What Do I Do?

Posted on by Kristen Anders Bojarski

I recently wrote an article that offered some guidance for the financially dependent spouse who wants to get out of an unhappy marriage. I talked about taking money out of the joint bank account, taking the kids, and filing for support.  But what do you do when you are on the other side of that scenario?

We’ve all heard this story.  It has happened to someone we know, an old friend or maybe a distant relative.  It goes like this: Some poor, unsuspecting chump gets up in the morning, kisses his wife and kids’ goodbye then goes off to spend the next 8 hours or so at his job like he does every other day.  But when he walks into his house at the end of that long hard day, he finds that the house is eerily empty and quiet.  The furniture is gone. The wife and kids are nowhere to be seen.  Even the cat is gone.  He instantly feels panicked and fears the worst.   Were they robbed?  Where was his family?  He runs upstairs to check the bedrooms.  The children’s rooms are mostly empty of furniture, clothes and toys.  That’s odd.  Why would a burglar take some dirty old kids clothes?   He runs into the master bedroom.  His wife’s clothes are gone, but his are still there hanging in the closet.  The bed is gone but his dresser remains.   With a sinking feeling, he walks into the bathroom off the master bedroom.  His wife’s things are missing.  Not even a toothbrush is left.  But his toothbrush is right where he left it that morning along with his other belongings.  At this point, the truth hits him like a crushing blow.  It is worse than being robbed.  His wife left him and she took the kids.

But why?  He thought they were happy. They had some troubles, sure, but so does every married couple.  How could she do this to him?  The kids?  This can’t be happening!  The next thing he knows, some big guy who looks like a cop is knocking at the door to serve him with a complaint in divorce and an order scheduling a hearing on child support and APL/spousal support.

Talk about your worst nightmare.  Unfortunately, I see this scenario happen every day.  When it does, it is often a complete shock.  This is something that only happens to other people, right?  Whether you genuinely believed your spouse was happy, or failed to see the signs that now seem so obvious in hindsight, it has happened to you.  Now what?

First, set up a meeting with a divorce lawyer.  Ask friends and family for a referral.  Next, do a little damage control and prevention.  Change the locks to the house. You don’t want your spouse coming back to the house when you are not there to take what little furniture you may have left or rifle through the legal documents your lawyer sends you.  If her name is on the deed, she is legally allowed to access the house, but changing the locks is often a good deterrent.

If you have joint bank accounts, close them.  Especially if your paychecks are being deposited into them.  Close all credit cards on which your spouse is an authorized user, even if it means you must agree to pay the balance.  Change all passwords to all password-protected accounts.  This includes, but is not limited to, your Apple or other phone accounts, emails, bills, online banking accounts, passcodes to all devices, etc.

Next, get your papers in order and prepare for the meeting with your lawyer.  Your lawyer will need to see tax returns and other pay information, statements on retirement accounts, investment accounts, etc.  If you were not the one in the marriage who handled the finances, now is the time to educate yourself on these matters.

When you have your initial meeting with the lawyer, talk to him or her about custody.  When your children are used to seeing you every day, it is extremely important to maintain regular contact.  Did your spouse take the children out of state, or move so far that it will prevent your ability to exercise your custody rights?  If so, your lawyer will need to immediately seek special relief from the court.  If not, you will want to file a complaint for custody in the county the children have lived in within the last 6 months.   Most counties in PA have a long and drawn out custody process.

In Allegheny County, we have the Generations Program which requires both parents (and children if they are old enough) to attend an Education session, then a Mediation session.  Mediation is scheduled 4-6 weeks after the initial custody complaint is filed.  If an agreement isn’t reached at mediation, then the parties attend a Generations Conciliation which is scheduled 4-6 weeks later.  If no agreement is reached there, then in another 4-6 weeks, another conciliation takes place, this time with the judge.  After that, another conciliation might be scheduled, but eventually the last stop is a custody trial.  The courts force people to go through these steps because they want parents to make their own decisions about their own kids, and it is very traumatic for parties and children to go through a custody trial.  Some cases are not possible to settle (Is your spouse a narcissist? If so, you may as well schedule a trial date), but most cases settle at some point during the process.  If your case ultimately goes to trial, expect it to take about a year for your custody case to be finalized from start to finish. If you ultimately settle at a conciliation, it will still take months.  Since it will likely take a long time to get a final custody order, ask the court for an interim (temporary) custody order.

If you do not have an agreement or interim custody order that enables the children to see you on a regular, if not equal basis, then a status quo custody situation is created.  Judges love to keep the status quo intact when the kids seem to be doing OK.  It’s safe.  Make sure that you are part of the status quo.

              Finally, make sure you are taking care of yourself.  You’ve just gone through a terrible shock.  You likely feel stressed, depressed and anxious about the future.  Don’t worry.  You can (and will) get through it if you help yourself.  Eat healthy and exercise.  Try to get the appropriate amount of sleep.  Don’t hesitate to get into counseling if needed.  Do whatever you have to do to get your mind right.  You are going to be making decisions about your children, finances, etc. that will affect you for years to come.  You must be able to make these decisions based on logic rather than emotion.

Your wife, furniture and cat might be gone forever, but if you follow these steps, you are on your way to maintaining a loving relationship with your children and protecting your assets.  This does not have to the tragic end to your story.  In fact, it is not the end of your story at all.

It is a new beginning.

How to Take Those First Steps Towards Leaving an Unhappy Marriage

Posted on by Kristen Anders Bojarski

It is January, which is affectionately known by family law lawyers as divorce season. More than any other month, internet search engines experience a surge of people searching for information relating to divorce.  Divorce is a life changing and often traumatic event in one’s life; the very thought of leaving behind the life you’ve known can be overwhelming.  How are you supposed to make a decision that will substantially impact you, your spouse, children and even extended family members without first consulting the internet?  As a compulsive googler myself, I understand the lure of a free and anonymous internet search, especially when you are desperate for answers about something.  But I can tell you that the internet does not have all of the answers you need to make informed decisions.  Only an experienced and capable family law lawyer can do that after meeting with you and learning the facts of your unique circumstances.

When I first meet with a client who is considering leaving an unhappy marriage, they often don’t know where to start for fear of unknown consequences. This is especially true of the financially dependent spouse. They don’t know if they can afford to go out on their own, especially with young children. They fear giving up their rights, or financial or custody-related retaliation by their spouse.  When I’m feeling overwhelmed, nothing eases my anxiety better than coming up with a well-thought out plan to attack the problems I’m facing, and that is what I help my clients do.   If you are in an unhappy marriage, but have no idea where to start, this quick and general guide to taking those first steps is for you:

Divorce – to file or not to file? In some cases, however, it does make sense to file for divorce right away. It depends on the circumstances. Make sure to talk to your lawyer about your options.

When I meet with a client for the first time, one of the first things I decide is whether to file for divorce right away. For a financially dependent spouse, it is generally better not to file for divorce right away, and this can be for several reasons. For instance, once you are divorced, you cannot be covered under your spouse’s health insurance any longer. Finding affordable healthcare, even through employment, is a common problem. In those cases, if makes sense to delay the divorce for as long as possible to keep health insurance coverage.

Money – If you are not working outside of the home, do you have education or skills that will enable you to get a self-supporting job? If not, will child and spousal support (if applicable) be enough for you to live on, maybe with a part or full-time minimum wage job, on a temporary basis? Come up with a budget and stick with it as best you can. If you do not have the skills or education to support yourself, now is the time to come up with a plan to become self-supporting. Child support doesn’t last forever, and alimony usually doesn’t either. Think about what you are interested in. Look into the programs offered at the local community college. See what job training is available in your area, or even look into that graduate program you put on the backburner to start a family.The next thing I talk to my clients about is their income situation. If you want to leave your marriage, you must first take a long and hard look at your finances as this will determine where you (and your children if you have any) will be able to live when you and your spouse separate. Do you want to stay in the marital residence? Can you afford the mortgage, taxes, insurances, rent, etc. based on what you earn? If not, will you be able to afford to live in the house, with spousal and child support (if you are entitled to receive them) to supplement your income or lack thereof? In many cases, both incomes of the parties are needed to make the monthly mortgage payment.

Decide where to live – If remaining in the marital residence is not an option, either financially or legally, you should strongly consider staying with family or friends. Moving out of the marital residence does not mean you give up your legal rights to the marital residence. Whether you live there or not, you still have an interest in the property meaning any equity will be distributed in some way once the marital assets are divided later on through the divorce process. This is a question I get asked all of the time.

The children’s school district is also a major factor to take into consideration for most cases where shared custody is going to be an issue. If you can’t afford to live anywhere else but with family, and your family lives so far away that it would be difficult for your spouse to exercise custody rights, do not make any moves without consulting a lawyer first.

Once I help my client analyze their income and budget, I help them decide where they should live. Once you’ve done the same analysis, can you afford to reside in the marital residence? If so, is your spouse willing to leave? If not and the deed to the house is in both names, you can’t just kick your spouse out. There are ways to gain exclusive possession of the marital residence (a topic for another day), but it is usually easier and cheaper to move out of the marital residence yourself.

The move If this is not an amicable separation, or domestic violence is an issue, then I suggest moving out without telling the other spouse. You should still schedule the moving date, and have people to help you, but wait to move until your spouse is at work or out of town. Take whatever furniture, household goods, Christmas decorations, heirlooms, etc. that is important to you and/or will be necessary to set up a new home for yourself and/or your children. You may feel guilty pulling a surprise move like this, but if it will avoid a major conflict, or someone getting hurt, it’s worth it. If reaching an amicable custody agreement is not possible, and you are the primary caretaker of the children, take them with you when you leave.

This may induce your spouse to file a complaint for custody, but don’t be alarmed by that. If that happens, the courts won’t automatically hand your children over to your spouse, assuming that the children are not in danger in your custody. It just means that you and your spouse will go through the court process to establish a custody order, whether by agreement or court order, that is hopefully best for your children.

Once you figured out your finances, and have decided where you are going to live, the next step is to plan the move. Schedule a move-in date and enlist family and friends to help you. Is this an amicable, mutually-agreed upon separation? If so, try to reach an agreement with your spouse ahead of time as far as how the furniture and household goods are going to be divided. If you have children, it would be ideal if you and your spouse could come up with a custody arrangement prior to moving.

File for child and spousal support Right before you move out of the marital residence, see if you can withdraw funds from joint bank accounts, CD’s investments, etc. Don’t feel bad about it; you have to support yourself, you are entitled to joint funds; besides, and any funds you take will just be considered as an advance to you later. While anyone can file a complaint for support at the Domestic Relations Section of the court in their county, you should not go to the support conference/hearing alone. Hire an attorney to represent you.

Immediately after you move out of the house, file for child and spousal support if you are entitled to it. In Allegheny and Washington counties of PA where I practice, it generally takes 4-6 weeks after a complaint in support is filed for a support conference/hearing to be scheduled, and then up to another 30 days after the court date for the wage attachment to take effect. For that reason, plan to not have any support monies for about 2 months.

Help your childrenIf your children are struggling, seek counseling for them or reach out to the guidance counselor at school for support. Be patient. While the adjustment to their changed lives may take some time, it’s worth it for the children to come home from school to a happy, tension-free home each day.

Once you separate from your spouse, help your children with the transition. Talk to your children, help them understand what is happening and encourage them to confide in you about their feelings. Never speak badly about your spouse to the children; it will make them feel awful. Instead, assure them that they are loved by both parents and that the separation is not their fault. It is true that children are resilient, but the transition will be a lot easier for them if their parents can be civil.

Decisions on when to file for divorce (if you and your attorney decide to wait), how to split assets/debts, permanent custody arrangements, etc., will come later. For now, I hope this general guide helps you to come up with a sound, logical plan towards making that huge decision to leave an unhappy marriage.  When you are ready, or you are feeling overwhelmed, meet with a family law attorney.  He or she will help you come up with a plan so that you can be prepared to take those first steps.