Child Custody and the Christmas Holidays

Posted on December 6, 2013 by Barbara J. Shah

While the rest of us are shopping, decorating, baking, and happily anticipating the Christmas holiday season, Family Court Judges dread the approach of this otherwise cheerful holiday season. Why? Because of the bitter battles which erupt between divorced or separate parents over holiday custody schedules. Parents who can at least tolerate each other during the rest of the year are often willing to spend hundreds or thousands of dollars in attorney fees (or if they represent themselves, many hours of time appearing and arguing in court themselves), trying to get a judge to set up their preferred Christmas holiday custody schedule for the children.

Other parents simply duke it out between themselves by telephone calls, text messages, emails, or, unfortunately, by having the children carry messages back and forth to the other parent. Hostility and anger rule the day. Having the kids wake up in their home on Christmas morning, whether or not they still believe in Santa Claus, is usually the polestar of these disputes. Often grandparents and other family members get embroiled in these disputes as well.

Very few parents keep their feelings to themselves; they frequently share their feelings and frustrations about holiday custody (and the other parent) with the children. Unfortunately for the children, these pitched battles between their parents over holiday custody are what they remember most clearly in later years.

It’s extremely hard for separated or divorced parents to accept the fact that their children will not get to share with them those moments which mimic those happy Christmas holiday memories they carry with them from their childhood. In addition, many of those parents are still nursing a grudge against the other parent for leaving them, and many of them are willing to fight a proxy battle over the children just to punish the other parent, particularly over custody during the holiday season, where they calculate it will wound the other parent the most.

If you see yourself or your loved ones described above, do yourself (or them) a favor. Do your best to put your own desires (needs?) aside, learn to be flexible, and try to figure out a way to work up a new set of holiday traditions with your children which doesn’t involve fighting with the other parent. If the other parent is in fact one of those “terrorist” parents who will use any advantage to try to hurt you through the children, particularly during the Christmas holidays, under the theory that this will hurt the most (giving them the psychic revenge they are craving), seek counseling for yourself (and the children), read up on how to deal with an obstreperous parent-opponent, and, if necessary, give in to what you think are unreasonable demands.

I attended a meeting of a local group of Family lawyers, judges and psychologists not long ago in which two young adults in their 20’s who were involved in bitter custody disputes as children spoke about the experience. One of these two young adults, one no longer has any contact with the “terrorist parent,” who inflicted psychological pain on her, her parent and siblings, throughout her youth. The other young adult spoke movingly about his father, the patient parent, who also had only partial custody of him during his younger years. His father never spoke ill of his mother, who on the other hand spoke bitterly about his father in his presence. His father was forced to do all of the transportation for his periods of custody, got minimal holiday custody periods, and was otherwise the patient and long-suffering underdog in the long custody battle. His father, who also attended, said that he didn’t mind doing all of the transportation, because he managed to make time in the car with the children quality time. Needless to say, the young adult in question was much closer to his father than to his mother.

In the end, the love and respect of your children is the ultimate prize worth seeking. Remember that for the holiday season and do your best to make happy memories with the children during the time you have.

16 Things You Need to Know About Divorce

Posted on August 17, 2013 by Barbara J. Shah

WHAT IS A LEGAL SEPARATION?

Technically, there is no such thing in Pennsylvania as a “legal separation.” Separation simply means that you and your spouse no longer live together. Separation may occur by mutual consent or by one of you leaving your home under involuntary circumstances, such as a PFA. Under some circumstances, you may even be considered separated even though you and your spouse are still residing in the same residence; there are special rules for this, however.

CAN I STOP MY SPOUSE FROM ENTERING OUR HOME?

Your spouse has a right to be on and in the property that you both own or rent unless a court decides otherwise in the context of a divorce proceeding. If you lock your spouse out, he or she may be able to take appropriate action to regain entry to the property, as long as a divorce has been filed.

WHAT IF MY SPOUSE HAS ABUSED ME?

If there has been actual or threatened abuse, your spouse may be ordered by the court to leave your residence and to stay away for up to three years. See “Protection from Abuse”, as it deals more with this issue.

WHAT IS THE ROLE OF A LAWYER?

If you and your spouse are having marital problems, your lawyer can assist you in explaining your legal rights and duties. Second, he or she can help to bring about an agreeable settlement of the legal disputes which arise between you and your spouse as a result of separation or divorce. Finally, your lawyer is your representative in enforcing your rights in a court of law or in defending you if your spouse files an action against you.

Lawyers are not permitted to represent both parties in a divorce proceeding, as this would constitute a conflict of interest. This does not mean that both parties need lawyers; if the other spouse elects not to have a lawyer, they may of course represent themselves. However, your lawyer cannot offer legal advice to your spouse in a divorce proceeding.

WHAT IS A SEPARATION AND PROPERTY SETTLEMENT AGREEMENT?

After a husband and wife separate, especially if they intend to divorce, it is desirable for them to enter into a written agreement to provide for: 1) division of real estate and personal property; 2) support, if any, payable to the dependent spouse and children; 3) post-divorce alimony, including amounts, length of time, and termination of modification events; 4) responsibility for debts and legal fees; 5) health and life insurance arrangements; and 6) custody and visitation of children.

Also included might be other items which set forth the mutual rights and duties of the parties to the agreement. This agreement is a contract, but may be enforced as though it is an order of the court. Certain provisions in the agreement concerning child custody, visitation, and child support can later be modified by the court if circumstances change. The agreement is generally prepared by an attorney.

WHAT HAPPENS TO REAL ESTATE WE OWN?

Most married couples own their real property as “tenants by the entireties.” This form of joint ownership means that neither spouse can sell the property during the marriage without the consent of the other. Upon divorce, however, unless the parties have a written agreement providing for the division of the property, the court has the power to divide the property based on equitable principles. This means that the court will take many factors into account when arriving at a fair division; although that does not always mean that the property will be divided equally.

The court takes into consideration both spouses’ economic and non-economic contributions to property acquired during the marriage. If neither you and your spouse nor the court divide the property, then the nature of your ownership automatically changes after divorce and you both become “tenants in common.”

WHAT IS MARITAL PROPERTY?

The Divorce Code provides that all property acquired by either spouse during the marriage prior to the date of final separation, with certain exclusions such as gifts from outside the marriage and inherited property, is marital property, regardless of the spouse in whose name the property is held. Premarital or non-marital property may become marital property if during the marriage it is placed into joint names with the other spouse. It should be noted that the increase in value during the marriage of non-marital and premarital property which remain in one party’s name, will also be considered marital. Marital property, if not divided in the separation agreement, may be divided equitably by the court.

WHO OWNS THE HOUSEHOLD GOODS?

Household items, such as furniture, home décor, and appliances are generally not titled in either spouse’s name. Unless you can show a reason for treating such property as non-marital, the law treats all such property as being jointly owned and used for the benefit of both spouses, regardless of who actually paid for it. As part of the divorce, the court may consider these things as marital property and distribute them accordingly.

WHAT ABOUT BANK ACCOUNTS?

No matter whose name is on the account, you are both owners of the funds. If one spouse draws money out of an account, he or she may have to account to the other for the money, no matter who originally put the funds into the account or if the account of if the account is titled in only one name. As part of the divorce, the court may consider the bank accounts as marital property and equitably divide the funds, regardless of whose names were on the accounts.

WHAT IF I DON’T WANT A DIVORCE?

If the divorce is on no-fault grounds, the only defenses are showing that you have not lived apart for two years or that the marriage is not irretrievably broken.

In a fault divorce, your spouse must be “innocent and injured” to establish grounds. If you are able to prove that this is not the case, you may be able to prevent the divorce. You can also attempt to prove that the facts claimed by your spouse are false. There are certain other defenses that may apply in specific situations. You should discuss with your attorney what courses of action might be available.

WHAT WILL BE IN THE FINAL COURT ORDER?

When the court issues a Decree of Divorce, the order may include other matters if they were raised in the proceeding by either spouse. These include disposition of marital property and other property interests; child custody and visitation; child support; alimony; and enforcement of agreements voluntarily entered into by the parties. Under certain circumstances, a court may enter a decree of divorce on a “bifurcated” basis, that is, grant the divorce itself when the other issues are still pending, and allow the parties to settle or litigate the other issues after the divorce is granted.

CAN THE COURT REQUIRE COUNSELING?

Yes. The court may require up to three counseling sessions with a qualified counselor within a three to four month period in the following cases: 1) indignities are used as grounds for the divorce and counseling is requested by either person; 2) either no-fault ground is used and counseling is requested by either person; and 3) in certain cases where there are children of the marriage under 16 years old.

WHO PAYS THE ATTORNEY’S FEES?

The court has the power to award preliminary counsel fees to the dependent spouse. In addition, in the final order, after the property rights of the parties are determined, the court could direct the parties to pay their own costs and fees, or it may divide the costs and expenses equitably between the parties. Payment and recovery of costs and attorney’s fees are matters to be discussed with your lawyer during the initial meeting.

WHAT IS AN ANNULMENT?

An annulment may be sought for marriages that are by law invalid or which may be declared invalid by a court. Marriage is a contact, and if either individual was unable to enter the contract because of intoxication, being under age, or fraudulent inducements, the court may determine that no contract of marriage ever existed. If you think an annulment may be appropriate in your situation, discuss the matter with a lawyer.

HOW CAN I HELP MY CHILDREN?

Keep children out of the conflict!! The problems should be worked out between you, your spouse and your attorneys, not through your children, even adult children. Also, young children often feel that they are the cause of the problems, and they must be reassured that this is not the case. These are very difficult times for you and your family. Do not be afraid to get help from family and friends or by asking your attorney for names of professional counselors or therapists.

WHAT SHOULD I DO IF SERVED WITH A DIVORCE COMPLAINT?

A divorce action is like any other lawsuit. It begins with a complaint filed in court and served on the person against whom it is filed. If you receive a divorce complaint, you normally will have 20 days to respond. If you do not respond, the divorce may proceed without you being represented or having your rights protected.

You should consult an attorney immediately upon receiving a divorce complaint. If you feel that you cannot afford an attorney, you should contact the community legal services in your county.

A perspective on a 30-year career of practicing primarily family law in Pennsylvania

Posted on August 16, 2013 by Barbara J. Shah

I had a varied career before I graduated from law school and passed the PA bar exam. I was a florist helper, secretary, elevator operator, accounting clerk, salesperson, political operative, high school teacher and sales manager, not necessarily in that order. I was married and had three children, one of whom was a teenager. I give this background because in retrospect much of my experience prior to obtaining my law degree turned out to be so valuable to me as a practicing lawyer.

In law school we learn the theory behind the law, and how it is applied in numerous situations. We learn about the worst possible outcomes of what might seem to be trivial matters (Is $20 found in an old piano “income” for IRS purposes? Can a lawyer lose his license to practice law because he put a fake coin in a parking meter?) We learn to see both sides of an issue. We sometimes learn the current law on a given area, but there is not a heavy emphasis on that. The old “memorize and retell” tactics which worked so well for us before and during college are pretty useless in law school. They try to teach us to think broadly on the issues presented to us, and to come up with unique solutions to life (and legal) problems of our clients, which are both legal and ethical. They don’t teach us how to be practical, which legal tactics to use; they don’t tell us not to try to blow away a gnat with a bazooka. That we are supposed to figure out from our “real” life, the life outside of law school.

I don’t disagree with this approach. I think it is important for lawyers to learn how to analyze every aspect of a client problem, to try to look at it from other angles (“How would a judge see this dispute and the respective parties’ actions?”) Also, knowledge of current law is not particularly important. Lawyers all have law books, and nowadays access to laws in their online research databases. What is important to know is that laws change, and the rules by which laws are administered change. Many things well—meaning laypeople tell our clients are based on an old or erroneous interpretation of the law.

What a client seeking a lawyer should try to determine is, not how well did that lawyer do in law school, or how many articles has he or she published; they should get a “feel” for how practical the lawyer is, and what kinds of experiences the lawyer will bring to bear, when analyzing a problem and recommending a course of action. Do I like that lawyer? Do I think that, in addition to being knowledgeable and experienced, will the lawyer have my best interests at heart? The prospective client should do his or her homework in advance; sometimes the lawyer recommended to him or her is not a good “fit.” They should ask around, do on-line research, and most of all, meet the lawyer and interview him or her, before deciding whether to select that lawyer to handle their legal problem. A client should be wary if a lawyer promises “Trust me, I can resolve all of your legal problems in your favor, just do what I say.” Don’t throw all of your life knowledge about sizing up people out the window when you walk into a lawyer’s office, because you want a lawyer who uses his or her life knowledge, in addition to his or her legal knowledge, to assist you in the most practical way.