DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW - Part 1

I mentioned in a blog post earlier this year that the beginning of the New Year tends to bring with it new divorce flings and cases. While the actual filings peak in March of the year, as I write this I am sure there are people who have been contemplating separating from their spouse or who plan on talking with a lawyer in the near future.  Whether or not you separate is a huge decision.

When you separate can have huge ramifications in potential divorce litigation.

When and how you separate, i.e., the day you “stop living in a husband and wife-like manner,” plays a key role in the distribution of your marital estate, entitlement to support, and the entry of the divorce decree. 

Here are a couple of things to think about if you are thinking about going.

The date of separation defines marital property. 

As I talked about in prior posts, during your marriage, the assets you acquire (whether they are in your name, your spouse’s name or in joint names) will be subject to equitable distribution, barring an agreement to the contrary. 

Your date of separation designates when assets stop being marital and start being separate. 

Generally, income you earn after separation is yours to do with as you please, as are any assets you acquire with your post-separation income.  The date of separation is the dividing line between the two.  It can be crucial in whether an asset is included in the marital estate and subject to equitable distribution or not.

The date of separation also helps to determine the value of non-marital assets.  

As I have talked about, only the appreciation in value of non-marital property is subject to equitable distribution.  (Unless you have already transmutated it into marital property.) This marital portion is the growth on the asset from your date of marriage to your date of separation, or to the date of distribution, whichever is less. As such, the date of separation will help determine the value of these non-marital properties as well.

It determines when you can get a Divorce Decree.

The date of separation also starts the clock ticking on when you can get your actual divorce.  If everybody is in agreement that they want a divorce, you still have to wait for a period of 90 days after a Divorce Complaint has been served to request it.  However, if one party does not want a divorce, Pennsylvania has a two year separation waiting period. This means from the time you separate until you can push things ahead in Court, you must wait two years if your spouse objects.   That two years starts not when a divorce complaint is filed but when you separate. 

That’s just the tip of the iceberg. When and how you separate my also affect your support obligations/rights, when you get to see your children, and who retains the marital home when all is said and done. I will cover these topics and “how do you separate?” in my next post.

CIVIL COLLABORATIVE LAW TRAINING

To those of you who have kept an eye on my various blogs over the last few months, I have mentioned my involvement with collaborative law.  

While many folks may be familiar with collaborative law only in the family law context, the principles of collaborative practice can be applied in any one of a number of legal contexts.

In fact, the local collaborative practice group, CLASP, has a civil law committee and they are presenting a civil practice focused, basic collaborative law training on March 17th and 18th. This will focus on the use of collaborative practice in the civil law context, which can include contract disputes, employment issues, resolution of estate claims, and many other non-family law related issues. 

This training counts as the basic training necessary for attorneys looking to join CLASP and can also provide existing CLASP members with further information regarding application of the collaborative process to other areas of law. 

For those who are not familiar with the collaborative process, in essence, all parties involved agree that they do not go to court.  Not only are they agreeing that they do not want to go to court, they actually specifically sign a contract saying they will not.  They hire specially trained attorneys who have agreed to adhere to collaborative guidelines in lieu of running to court over every little upset. 

These collaboratively trained attorneys appreciate and acknowledge the toll that litigation can take on people and the fact that many issues can be resolved more quickly and more efficiently through a cooperative exchange of information and an open dialogue. 

The collaborative attorneys and their clients are assisted in this dialogue by a collaborative coach, a trained mental health professional whose role it is to facilitate a dialogue between the parties, as well as their counsel, with the goal of reaching a resolution that is reasonable and acceptable to everyone involved.  

The agreement to stay out of court is taken so seriously that in the event the collaborative process falls apart, the parties are actually required to find new attorneys if they want to litigate their claims. As a result of this, most collaborative cases stay collaborative and ultimately resolve that way. 

Any attorneys who are interested in learning more about collaborative law should look into the upcoming civil training.  Not only is collaborative law a growing field of practice, but the two-day training provided is a very cost effective means of obtaining a year’s worth of CLE credits in just two days, pending approval.  Please feel free to review the information below,  visit CLASPLAW.ORG  and contact me or other CLASP members for more information about registering.

Two-Day Civil Collaborative Law Training

By: Marc O. Sheridan, Esquire

When:              March 17th & 18th, 

 Time:               Registration/Check-In is at 8:15  a.m.

Thursday and Friday morning. Light continental breakfast provided.

Training begins promptly at 8:30 a.m on Thursday and Friday and the day ends at 5:00 p.m.

Where:            One Mellon Center 500 Grant Street

Third Floor Conference Center Pittsburgh, PA 15219

Cost:               $500 Early Bird before 1/15/2016

$550 after 1/15/2016, $450 for CLASP Members

CLASP is pleased to be offering a Two-Day Civil Collaborative Law Training conducted by Marc O. Sheridan, Esquire, a practicing Litigator, Collaborative Attorney, Mediator  and Collaborative Trainer. For over fifteen years, Attorney Sheridan has represented clients in various employment and civil matters in the New York City area.  He is a member of the New York State   Bar Association ADR Section and Collaborative Practice Committee, the American Bar   Assoc.Dispute Resolution Section, the International Academy of Collaborative Professionals (IACP), and the Global Collaborative Law Council.

Fee Includes course materials, continental breakfast, lunch &  snack.

Pennsylvania CLE credits to be provided, pending  approval.

 Please note: registration will be limited and is available on a first come/first served   basis.

You can also register on-line at  www.clasplaw.org

DIVORCE - Making "Mine" "Ours" - Transmutation of Property

MAKING MINE OURS - The Transmutation of  Property

In my recent post regarding marital property, I made a reference to the concept of transmutation. As I mentioned in that post, this is a rather unusual, made-up lawyer word for what happens when somebody changes a piece of separate property into marital property.

Under the Divorce Code there are certain items of property that are excluded from the marital estate and which are not to be equitably divided by the parties (or the court). These excluded properties basically boil down to the following:

Gifts received during the marriage;

Inheritances received during the marriage;

Property owned prior to the marriage;

Property created after separation; or

Property received in exchange for one of the above, without the contribution of additional marital funds.

For the record, in case anyone is confused, your income (i.e., the income you earned during your marriage) is not, in fact, your income. That is marital income and therefore marital money. So anything you purchased with martial money, no matter how it is titled, is marital in nature regardless of whose name is on your actual paystub.

The 4 things above are our big categories of not marital property. And, while the Divorce Code talks about how these things are excluded from martial property, often times they are not entirely excluded.

For instance, the growth in value of something you are gifted, inherit or bring into the marriage will still be marital property subject to equitable distribution.

So if you come into the marriage with an investment account worth $20,000 and at the end of your marriage it is worth $30,000, there is $10,000 to be accounted for in your marital estate. Those dollars do not have to necessarily come out directly from that investment account, but they do have to come from somewhere, and they are going to be included in the “marital pot.”

Barring a prenuptial agreement, (which can be a very important piece of paper and which is worthy of its own forthcoming blog post), this $10,000 is subject to equitable distribution. You and your spouse can exclude the growth on these things from the marital estate in an agreement, but under the law, that $10,000 and any other growth in your premarital property or gifts or inheritances is up for grabs at the time of equitable distribution.
Now we come to the tricky part--- the transmutation. Your premarital investment account, house, retirement assets, car, etc. are totally yours (save for that pesky increase in value) unless you transmutate it.

How does one transmutate, you ask?

Well it can be quite simple. If you add your spouse’s name to that investment account, it has been transmutated.

If you retitle your car in joint names, it has been transmutated.

If you deed your house to the two of you jointly, it has been transmutated.

Once this transmutation has taken place, now 100% of the asset is marital and is subject to equitable distribution (i.e., the $30,000 in your now jointly titled investment account is subject to equitable distribution, not just the $10,000 growth).

It should be noted that if you transmutate a large amount of property or if you have a particularly short marriage, it might not be equitable to divide such an asset 50/50. It might be equitable to give the transmutating party 80% of that asset, etc., but you have made it marital property. Now it is incumbent upon you, or the attorney you hopefully hire, to argue that even though it is marital property it is not equitable that your spouse get a large share of it.

In any case, you have significantly complicated your financial position. This does not have to be the case. As I mentioned, while the words “prenuptial agreement” often make people very uncomfortable, when two people come to a marriage and each have their own assets, it can be an ideal way to address eliminating this increase in value from the equation or coming up with your own rules to apply to it. I will talk about premarital agreements more in a future post but for now, please be aware that barring such an instrument, turning “mine into ours” is a relatively easy endeavor.

Even if you do not transmutate the property, the Divorce Code will always serve to make a part of “mine” “ours,” by operation of law.

I just wanted to say thank you to everyone who has recently liked this page or connected through linked in. After a lot of discussions with friends (both in and out of the legal community), colleagues, and clients, I am of the opinion that more needs to be done to let people know how the whole thing works.

For most people, the family courts will be the only contact they ever have with the legal system. Obviously, in that context the issues that might bring one to the courthouse door are emotional and personal and often painful. As a result, what to expect, how the law operates, and whether or not you even have to go to court (typically you don't) are seldom discussed openly and honestly. I want to combat that. I always try to provide my clients with an easy to understand breakdown of the law and procedures that effect their case (i.e. the rest of their lives). I want to use this page (and some other online resources) to be able to share insights and information more with a wider audience. Obviously it is not the purpose of this page to provide legal advice, simply more transparency and some general knowledge of an area of law which many people will encounter.

Your support is greatly appreciated!

CHILD CUSTODY - No Place Like Home for the Holidays

A few Thoughts on the Holidays

First, let me start by apologizing for my delay in getting this blogpost out. It certainly would have been more applicable a few weeks ago prior to the Hanukkah holiday. Nonetheless, some of the takeaways from this post will be useful throughout the year.

On the Simpsons, Helen Lovejoy is often quoted as saying, “Will someone please think of the children?” I think this is a particularly appropriate sentiment during the holiday season. For families who have not been “intact” for some time or others who are going through transition, oftentimes stress of the holiday season, coupled with the additional stress of new living circumstances, makes the holidays particularly trying.

I find clients who are transitioning to their new lives find the first holiday season to be particularly difficult. Everyone faces stresses associated with the holidays in the form of decorating, baking, buying presents, making merry and balancing budgets. Those facing the new world of contemplating whose Christmas festivities the kids will attend and what holiday traditions can survive the transition to your new living arrangement have it particularly hard.
To those of you who have already worked through these issues, and who know exactly what you will be doing this holiday season, where the kids will be over their break, etc., I commend you on the efforts that had to go in to finalizing these arrangements and making peace with the new schedule.

To those of you who are just facing these challenges for the first time, I wanted to share some thoughts.

1) Helen Lovejoy was right. We should be thinking of the children. The holiday season, Christmas break…these are magical moments for them and getting bogged down in the stress or fights over exactly how they will be spent detracts from that magic. Even if you are not so foolish as to try and discuss these issues with your children (which is hopelessly inappropriate), your stress still shows and they’ll still pick up on it. First off, never, ever, ever talk to your children about difficulties that you’re having making holiday arrangements, or tell them you’re sad that they won’t be there with you Christmas morning or anything of the like. They’re your children, let them stay that way. The world is going to do enough to disavow them of their innocence and hope; don’t speed up the process.

2) Do talk to somebody. Separation and divorce are incredibly stressful and emotionally painful experiences. Going through them alone and maintaining some degree of self and sanity is nearly impossible. Talk to your friends. Talk to your family. Talk to your priest. Talk to your therapist. Talk to somebody. Anybody—(except your children). You can talk to your lawyer, too, but it’s best that you rely upon them for some education on your legal rights and responsibilities and not the emotional issues. We bill at a higher hourly rate than therapists and we’re never covered by insurance.

3) You should talk to your co-parent. Now that you’ve talked out some of the emotional pain that goes with trying to navigate these new issues, it’s time to talk to somebody else, and that’s the other person, the person with whom you’re sharing custody of your children, not just for this holiday season, but for the rest of your lives. The sooner you can work out a schedule for how holiday visits will be taking place, and where the children will be over their break, the sooner you can close this chapter and move forward with actually enjoying the holiday season.
Not everyone can talk through their issues in a reasonable, productive manner. They may have to turn to lawyers or to the Courts for help. Let me assure you of two things:

1) There is emergency Motions Court on Wednesday, December 23, 2015, which will be filled with almost nothing but last minute motions trying to resolve Christmas custody disputes;

2) You do not want to be there.

Please make the effort at resolution.

Divorce or separation from the parent of your children will be hard. Nobody can make it easy. Talking to the right people, learning the right information, and addressing your outstanding disputes in a timely manner will make it easier.
There is no cure for the hurt, but there are many proactive things you can do to try to minimize how that impacts you and your children and how you navigate the co-parenting relationship moving forward.

In all likelihood, you will share custody of your children. It’s almost a guarantee that you will share custody on the holidays. It will be necessary to make new traditions and work on moving forward. The better you do that, the more positive lessons you teach your children about how to work with others, to manage your emotions and hurt, and to move forward in a responsible manner. As I said above, life will do plenty to eat away at your children’s innocence and hope. Don’t help it. What you’re doing now is teaching them the skills to deal with those upsets that will happen in their own lives.

Teach them well and enjoy the holiday season.

A FEW MORE THOUGHTS ON THE HOLIDAYS

While the focus of my last blog post was on people facing the holidays who have separated, I think it’s important to recognize the fact that there are many individuals, some of whom are reading this, who have decided to “stick it out” through the holiday season.

A cursory review of statistics will show you that there is a significant spike in filing for divorce January through March. As a practitioner, I can assure you that a large portion of this is attributed to people deciding to “stick it out through the holidays” then file. It’s an admirable decision and a difficult one to make. If you’re already in the marriage that is experiencing stress and difficulties, the additional stress of the holidays can make day to day life even more difficult. “Sticking it out” is no small undertaking. That’s probably why the spike in filing for divorce begins immediately following the New Year. Whether it’s folks who just wanted to make it through the holiday season, or those whose New Year’s resolution involved re-examining their lives, the reality is there is a “divorce rush” and it is quickly coming upon us.

This may seem like an unusual thing for a divorce attorney to say, but no matter how difficult things are, barring circumstances where somebody is suffering from physical, emotional or psychological abuse, I implore you to not run to the courthouse door come January.

I would advise anyone reading this, as I advise all of my clients, to please stop and think. Not that you haven’t, you’ve probably been ruminating on this decisions for a very long time now.

This probably has included the repeating thoughts that you have in your own head about the things that are bad,

the things that are wrong,

the things that you need to fix,

the things that they might not be fixable

and all of those other things that race through your mind at 2 in the morning. These are your thoughts, but they are not necessary informed thoughts.

If you haven’t spoken with qualified others, you may be falling into a trap of what I call “spinning”. The same thoughts are swirling over and over again, and the more they swirl, the more they get reinforced in your own mind. All of a sudden, every action by your spouse becomes something that confirms the beliefs you were having. The most minute of slights: forgetting to stop at the grocery store for milk, leaving socks where they are not supposed to be—these things become symbolic of how you are unappreciated, unhappy and unable to communicate with one another. The more you spin, the more power these thoughts have. Don’t spin. Talk, preferably with somebody trained.

As I said before, talking to friends, talking to family—this can all be helpful in the emotional front, but to gain more insight into what is actually going on, I find it is very helpful for people to talk to counselors. Whether you talk with them alone or have the courage to broach the topic of counseling with your spouse, I think it’s something that should be explored.

People are people and even the most insightful among us are not necessarily insightful 100% of the time.

There may be things going on in your relationship or with you individually that you haven’t really been able to put your finger on, that a counselor may be able to you explore. If you are seriously contemplating divorce, I strongly suggest that you speak with a counselor with some training in marriage counseling or couples counseling prior to making any bold decisions. If nothing else, down the road, you will know that you tried.

I also strongly suggest that you speak with a lawyer before you do anything else. Divorce changes every aspect of your life. Every single aspect. Every single day.

Even the most amicable of divorces still have significant long-term consequences for just about everything.

It changes how often you see your kids.

It changes where (and how) you live

Heck, most of the time it even changes your retirement age, no matter how many decades away that is.

Some people find some of these changes to be for the best, others find them truly terrifying. If you are leaving a bad relationship, then you should be leaving your bad relationship, but you should know what that really means. Many people have very misguided beliefs about what divorce would ultimately end up meaning for them. One of the things I hope to do with this blog in the future is talk about some of the more practical ramifications that the divorce or separation actually have as it relates to their finances, custody, support obligations.

If you have questions about any of these things, you should talk to a lawyer. With all due respect, you do not know the law. Neither does your sister, neither does your best friend’s cousin, neither does your hairdresser. Lawyers exist because lawyers know the law. We are a necessary evil in this world and the advice that a skilled divorce attorney can give you is far more valuable that personal experience anecdotes that you may hear from people you encounter in day to day life. “But in my brother’s divorce….” is not legal precedent and it’s not swaying any judges.

If you are seriously thinking about a divorce, talk to a counselor, talk to a lawyer, but don’t pull the trigger until you do. Take some time to think about what’s going on and what the long-term costs are for whichever decision you make. Nobody should stay miserable for the sake of staying in a marriage, but by the same token, virtually no one’s best answer is to race into Court.

So, to those of you sticking out through the holiday season, again, I commend you. I also advise you to gather information. I say this to anyone reading this, whether they are seriously contemplating a divorce, or if it’s just something that has crossed their mind from time to time, arm yourself with information. Whether it’s about your counseling options, or what you actually face if a divorce was to take place, your future decisions should be informed. Divorce lawyers aren’t crystal balls, but we certainly can provide you with more information than your hairdresser (no disrespect to hairdressers. I trust you with my hair, please trust me with divorce law).

Regardless of your situation, I hope you all make the most of this holiday season, and I look forward to providing you with more thoughts and information in the New Year.

Becky

Happy New Year and may 2016 bring the best to all of you reading this!

I will keep things relatively light since it is New Year’s and I am sure some of you are recovering from last evening’s festivities while others prepare for a traditional New Years dinner. Some of you are facing both. I wish you the best in your efforts to survive eating sauerkraut while hungover.

I don’t know what 2016 will hold for myself or for any of you reading this. I do know that I have resolved to try to use this blog to provide people with some of the information and support that they need when facing family court itself or the relationship problems that can bring one to its doorsteps.

Please note, I cannot provide legal advice to individuals through this page. However, I do want to make sure that I am providing people the information that they find useful or helpful in their lives. To that end, I happily invite any of you to provide some suggestions for posts or questions that could be covered as a topic for a post. For example:

How do we divide property in Pennsylvania? (Equitably.)

Does anyone still pay alimony anymore? (Yes.)

Do we have to share custody? (More likely than not.)

I am hopeful that I may be able to use this blog to provide the current law of Pennsylvania as well as some procedural information and overall insights.

All of these issues can be very difficult to discuss and to understand. It is often hard to figure out what steps to take and how to move forward with faced with them. I think the best thing that can be done is to provide people with greater information. This not only lets them know what is going on, this knowledge can provide a bit of comfort to those facing a cold and often confusing court system.

If you find yourself on the receiving end of a Custody, Divorce or Support Complaint it can be terrifying and make you feel like youhave lost control of your life. While there is some truth to that, you do have control over how you handle these circumstances and how you move forward. Even if the decision for a divorce or separation is not yours, you do still have the power to assert control in it and to have yourself represented in the best way possible.

While divorce changes every aspect of your life, those changes don’t have to be only negative. You have the power to reshape your path moving forward in the best way possible for you.

Hopefully for those of you reading this will not have to experience any of these drastic changes in 2016, but I must remind you:

While the New Year may not bring you the best, you can always make the best of whatever it brings.

Happy New Year!

PS.. if you enjoyed reading this or any of my other posts, please remember to like and share my page. Thank you!

Loco Means Crazy, right? Maybe.

But not really. In this case, the “loco” is In Loco Parentis. (Yes, lawyers still love the occasion Latin phrase.) Basically, it’s just the legal term of art for acting like a parent or doing the things a parent would normally do for a child. It’s also the topic of this week’s post as very recently, the Supreme Court of Pennsylvania may have changed the rules on this one.

A lot of the folks reading this have had step-parents in their lives, either as a role that they are now fulfilling or have fulfilled in the past, or as someone who came into their lives when they were children themselves. I have seen a parade of step-parents and now serve as a step-parent myself. While often the phrase ‘step-mother’ conjures up images of Disney villainesses enslaving their non-biological children, the truth of the matter is that step-parenting plays a crucial role in today’s society with the numerous blended families that exist. It can be difficult but also extremely fulfilling for both the step-parent and the child. However, the relationship a step-parent has with a child is, in all likelihood, something special and unique from what that child will enjoy with either of their biological parents or other members of their family.

Step-parenting comes with a unique host of obligations and responsibilities to the children involved. What many people don’t realize is that it comes with its own unique host of legal rights and obligations which have recently been redefined by the court.

In Pennsylvania, we have very liberal custody statutes, meaning that there are lots of people that have rights to ask for custody of your children. This comes as a surprise to many people who are shocked to find out that their parents, their former in-laws, and anyone who has cared for their child may have the right to ask for formal custody through the Courts.

Grandparents have their own separate statute in Pennsylvania that confirms that they can ask for partial, or even primary, custody of children. (I’m sure I’ll talk about this at a future point, as it is worthy of its own post.)

There is another provision of our Custody Statute that is much less talked about. This one deals with In Loco Parentis standing. In essence, this means that anyone who cares/discharges parental duties for your children for a period of six months or more can formally ask for custody through the Court and get an Order providing them with specified time. (Yes, even over your objection.)

This would typically include anyone who fulfills the role as step-parent for your child, whether the two of you are legally married or not. This comes as a pretty big surprise to people. You live with someone for a few years, you break up, they sue you to see your kids. Yes. That is, in fact, how it can work. (These In Loco Parentis cases, like all custody cases, are very fact specific.)

The Courts in Pennsylvania have long recognized that biology is not the only means of creating a relationship with a child. Historically, however, those with In Loco Parentis status have never owed a duty of child support. It has long been the idea that the Courts want to encourage acts of charity and kindness, including third parties helping to care for children. As a result, there has not previously been a duty to pay support simply because you have custody through In Loco Parentis standing. The Court previously held that an obligation to provide support for up to 18 years of a child’s life, simply because of the brief period where they assisted in the child’s care would be unfair and discourage acts of charity.

However, in an Opinion issued December 29, 2015 in the case of AS v. IS ,the PA Supreme Court modified this general rule of thumb. It indicated that a former step-parent could be liable for child support. It should be noted that this case, similar to many cases in family law, is very fact specific. Everyone’s life is pretty different and unique and so often times a case will come down, even if it’s from the Supreme Court, which is not applicable in many circumstances. The Court’s opinion in AS v. IS is very clear that this ruling is limited to a situation where the step-parent was “aggressive” and engaged in a “relentless pursuit” of custody rights “equal to that of the biological parent.” The Court described the step father in that case as “having insisted upon and become a full parent in every sense of the concept.” He had not only been awarded shared physical custody of the children, but also shared legal (decision making) custody of the children and prevented the mother from relocating out of state.

While there has not been a general duty for step-parents to support children following separation, AS v. IS shies away from creating a blanket rule. It is not the first time that non-biological parties have been ordered to pay support (Someday I will discuss the idea of paternity by estoppel. It’s a doozy.), but it is further expansion of this possible obligation.

At the end of the day, the ruling in AS v. IS seems limited, with the Court stating:

“In Loco Parentis status alone and/or reasonable acts to maintain a post separation relationship with step-children are insufficient to obligate a step-parent to pay child support for those children”.

Perhaps the lesson here is an important reminder that when forging new relationships that involve the children of one party or the other, one must carefully consider the impact that they will be having on the children and the impact that those children will have on their future lives.

Being a step-parent is an absolutely amazing endeavor and I commend anyone else who has undertaken these responsibilities. To anyone contemplating such circumstances, I, and the Supreme Court’s ruling, should remind you that this is not an endeavor that should be undertaken lightly.

What do you think? Is this ruling fair? What about In Loco Parentis status?

I’m curious to hear your thoughts or questions, and if you found this interesting, please remember to like and share my page.

YOURS, MINE, OURS, BUT MOSTLY OURS—A MARITAL PROPERTY PRIMER

When two parties are divorcing, one of the first questions they have is who gets what.

The rules that define assets as marital property subject to division can be a little bit tricky. Many people are more than a little surprised to find out that the court views marriage as a partnership and, regardless of who earns the money, purchases the assets, or has things in their name, it is generally believed that each of the parties have an interest in whatever assets are acquired during the marriage.

Pennsylvania is what we call “title blind”—it doesn’t matter if it’s in your name, your spouse’s name or both of your names. To the extent that it was purchased during the marriage, it’s going to be a marital asset subject to equitable distribution.

This means your spouse has an interest in the car titled in your name, a share of the pension that you receive through your employment, and any other asset that might be acquired, including investments, retirement assets, homes, other vehicles, etc.

Pensions in particular seem to surprise people. In essence, it’s part of your compensation from the job you went to day after day for however long you’re married. Regardless of the fact that it was only your individual efforts at work which resulted in the generation of the asset, it’s marital. Your spouse was at the same time making their own contributions to the marriage, be they through employment, as a homemaker, or both, and they have as much interest as you do in that pension, regardless of how fair you might think that to be.

Here is an important point to note, and maybe some of you caught it reading through; maybe you did not. Assets acquired during the marriage are divided equitably. That doesn’t mean equally and doesn’t mean that every single asset is divided the same. It’s the goal of the Divorce Code to “effectuate economic justice between the parties.” Economic justice does not simply mean that all of the assets are lined up, wacked in half and 50% of each given to either party.

Maybe “economic justice” dictates that one party to receive 55% of the marital estate, or even 60%.

Maybe “economic justice” means that the majority of the assets should be divided 50/50, but there’s an asset out there that shouldn’t be because it wouldn’t be fair to do that.

A good example of the above would be if somebody had $50,000 coming into the marriage and they put it into a savings account in joints name. A couple of years later, the parties separate and there’s $60,000 in that account. You don’t get back every dollar that you bring to the marriage, but the court would probably consider the fact that most of the savings account was originally one party’s pre-marital asset and in all likelihood would think it fair that they get some of that transmutated asset back, especially if the parties have a short marriage.

(Transmutation is what we call it when you take your separate property and change it into marriage property by jointly titling it. We will talk more about this in the future. The example above also touches on what we call a diminishing credit argument, wherein you get some credit for what you transmutate, but you don’t get it back dollar-for-dollar and you get back less dollars as more time passes).

There are some exceptions to marital property. Not every single thing that you acquire during your marriage is going to be subject to equitable distribution. Things like inheritances or gifts— if you keep them just in your name --- will remain just your property. However, the growth on these assets is a marital asset subject to distribution.

The same is true with property that you hold coming into the marriage. Even if you keep that investment account or savings account in your name, any growth in in its value is going to be subject to equitable distribution. Some folks don’t think that this is particularly fair and these rules can vary from state to state, but here in Pennsylvania, even a passive increase in value, (the increase from something just sitting there while you do nothing) is marital and your spouse will receive their equitable portion of that asset at the time of equitable distribution.

While there are these and other exceptions and nuances as to what is or is not marital property, at the end of the day, more of your assets are in than out, regardless of how you feel about that, or whose name things are held in.

However, these rules are subject to modification. It’s for this reason that a lot of people look into pre-marital agreements. That passive growth on your non-marital asset can stay non-marital if the two of you agree to that. Pretty much, a pre-marital agreement can manipulate all of the rules set forth in the Divorce Code, so as long as you are not doing so in an illegal manner. This has a lot of appeal to people, especially when they come into the marriage on relatively equal footing and intend to stay on relatively equal footing. In the absence of such an agreement, there may be claims for support, complicated litigation, and extensive discovery where you are compelled to exchange documents with one another to define what’s marital, what’s not, and what its value is. A pre-marital agreement can set the rules in advance, hopefully easing the burden of any potential divorce litigation down the road.

I hope this helps to give folks a little bit of an idea about how marital property works in Pennsylvania. Obviously, feel free to post any questions or comments. I would be happy to respond to same.

And, again, if you found this post helpful, please like my page and share this post. 

CHILD CUSTODY - YOURS MINE OUR - ALWAYS OURS

Rebecca A. Myers, Esquire

February 1 at 3:38pm · 

Yours, Mine, Ours, ALWAYS Ours - Child Custody

Custody litigation can be emotionally exhausting and financially devastating. I think that some of this happens because people do not fully understand:

1) how the court system operates; or
2) what the court system typically does or thinks about you and your kids.

The title of my post is important. As I discussed last week, property can be divided--you can each take half of the bank account, you can sell off the house, etc.

THINGS are divisible.

THINGS can break down into his and hers (or hers and hers, etc.).

That cannot happen with a child.

A child is forever part of both of you and you are forever going to be co-parents. This is the general premise on which the court operates.

There is not a legal presumption that shared custody is always is in the best interest of the children, but there is a very strong belief that your child has a right to have meaningful, ongoing contact and a healthy relationship with both of their parents.

This is something that some people seem to have difficulty understanding. Even if since the time your child was born one person was working 80 hours a week while the other was home taking care of the children, that division of labor during your relationship is not going to dictate your future.

The things that people do, how they manages their lives and who made dinner, or took care of bath and bed time is no longer relevant. When you stop living in the same house you start making new rules.
There will be new routines and new responsibilities going forward and the Court has more interest in how those will work than what you did before. The way two people manage one household is usually very different from how they each manage their own post-separation homes.

In the vast majority of cases, custody will be shared in some way.

There is not a particularly specific definition of shared custody.
It may mean that it is absolutely equal; it may not.

It is a very rare circumstance when the court is not leaning towards a shared custody situation from the beginning. In situations where there is an issue of substance abuse, physical abuse, verbal abuse, incarceration or complete abandonment, shared custody may not fit.

Barring these things, as a general rule, the court is more concerned with your child’s right to see both parents than they are with how you feel about this idea.
Seeing the other parent is your child’s right. They are part you, part the other parent, and they are entitled to get to see both of you, regardless how either of you feels about it.

Your child has a right to know, love and enjoy time with both of their parents.

You may well feel you have a right to be angry, or to dislike the other parent, but your child comes first here and you need to get past your own feelings.

I have said it before, but it bears repeating. When you divorce, you can divvy up your assets, move to the other side of the country, and never speak to one another again….. unless you have a child.

When you have a child, (if you are doing it right) you will always have a co-parenting relationship. To many people this is a shock, and a very upsetting one. For some, every single custody exchange rips the band aid off of deep emotional wounds. Unfortunately, this is part of life and it is not just part of your life, it is part of your child’s. If they perceive you as being upset by or angry at their other parent, it will hurt them.

As difficult as it is for you individually, your responsibility as a parent is to try and make this as easy on your children as possible. As I have said before, if you are still very angry, talk to someone. A trained professional is always best and it never hurts to have the support of friends and family. However, that family support should not turn into a rallying cry to wage out-and-out war on the other parent.

Your child knows that they are part of you.

Your Child also knows that they are part of their other parent, too.

When you attack the other parent, you attack that part of your child, too. They might not be able to articulate that to you, but it does not mean they do not feel it and are not hurt by it.

While your feelings are important, your child’s are paramount.

Custody litigation is hard to go through alone. Talk to a lawyer to know your rights, talk to a counselor to manage your emotions and show your child by example how to be the kind of parent you want them to be some day.

As always, if you enjoyed this post, please like my page and share it with others.

If you have any follow-up questions, please do not hesitate to comment.