DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW - PART 3

So how do you show you’re separated, you ask?

Well, what is separation can be very tricky. It is a fact specific determination that is not terribly well defined. The rule is that you “stop living in a husband and wife-like manner.” (The quote is old. This works the same way for same sex couples now that same sex marriages are recognized in PA.)

Whether you “are living in a husband and wife-like manner” is very specific to an individual couple, as you look at how your lives have changed since the alleged separation date. The most important fact, though, is did you both know you were separating? If you move to another state to get your master’s degree, and a year in decide you want a divorce, you didn’t separate when you moved for school because neither one of you knew you were separating at that point. If you have this epiphany a year in, but don’t tell your spouse for another year, guess what, you just now separated (two years after you moved) because you didn’t realize you were separating when you moved there, and while your feelings may have changed a year earlier, you didn’t tell your spouse that until now. Everyone in the relationship must be on notice that the relationship is ending. Notice can be verbal or in writing.

Under law, the date of filing a divorce is a presumptive date of separation, but either party can present evidence they separated earlier or later if things move forward in court. That’s were a written notice of separation can come in handy.

However, actions speak louder than words. If you say “separation” but keep acting like spouses, well, then you might not have separated. The words themselves aren’t magic and the Court will look at what you have been up to since you said them.

Nonetheless, nothing is getting done over one side’s objection until the two year waiting period has been met. If you are thinking about separating from your spouse, I highly recommend that you speak to an attorney to know your rights and obligations in the event of a separation within or outside of the home, and how to go about letting the other side know that you are, in fact, separating.

As I always point out, separation—even the very beginnings of separation—can impact every single aspect of your life, will impact you legally, financially and emotionally.

It is important to get the correct information to know what to expect. Consider speaking with a counselor, either individually or as a couple, before facing these changes. Be sure of your feelings. Once you are sure of your feelings (or at least pretty sure) talk to a lawyer to get some idea of what to expect from separation and/or divorce.

If you found this helpful, please share so that others can, too!

DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW PART 2

SHOULD I STAY OR SHOULD I GO NOW  - PART 2

Separation also affects support.

If you are talking about physically separating, and you are no longer sharing the household expenses, this can trigger a right to support even if a divorce complaint has not been filed. That can include spousal support for a lower wage earner and child support depending upon your respective incomes and custody arrangement. While two parties are still physically in the same home, it is largely assumed that there is not a need for support so long as nobody is being left completely penniless and the bills are getting paid.  When you stop being under the same roof and this stops being the case, you can find yourself facing a complaint for spousal support and/or child support.

It is not necessary to stop living in the same home to establish separation, so you do not necessarily have to move out of your home; therefore, spousal and child support might not be triggered. (But really awkward living arrangements will be.)

Support rights change if someone files for divorce.

Once a divorce gets filed, a party can ask for support even if everyone is still in the same house. Heck, you may have to pay support even if the other side doesn’t need it (i.e. you can get support you don’t even need during the period of separation).  This support for a spouse that comes into play after a divorce is filed but before it is finalized is called alimony pendente lite.

The previously discussed two year separation period can be used for a party to obtain support during separation, and they might not be entitled to it after a divorce (or even during separation).   The support you can receive while you are separated or while a divorce is pending is calculated differently than alimony, the type of support you can receive after divorce.  A party may be able to use the two year period of separation to collect these funds, even if they would be capable of self-support after the divorce and not an alimony candidate.   Additionally, while a party may have had an entitlement issue barring them from receiving spousal support, this doesn’t apply to alimony pendente lite.

So what is an entitlement issue?

This does not refer to someone thinking they are entitled to get everything in this world (though that type of thinking might be a reason to separate). If you haven’t been a faithful spouse, if you abandon or abused your family, or if you aren’t separating for the right reasons, you may be barred from receiving spousal support.     If you physically separate and there is no divorce, a party may not be entitled to the support they need if they don’t have clean hands. If you leave for the wrong reasons, you may be leaving behind your support claim as well.

Separation will also trigger custody issues.

Once you have separated, you can file for custody.  The court can even fashion an order while the two of you are still living under the same house but it will not go into effect until you are living in separate homes.  Whether you are separated in the home or out of the home will play a major role on how often you can see your children.  Continuing to reside in the home likely means seeing your child every day, which is almost guaranteed to be at least twice as much as you will see your children if you move out. 

However, continuing to live with your significant other post-separation is not for everybody. It can present a host of problems like fights about expenses, potential PFA exposure, etc.

If you leave are you really giving up your house?

Most often, yes.  Whether or not someone physically leaves the marital residence can affect equitable distribution in that in most cases the party who continues to reside in the home during separation and pendency of the litigation tends to be the party who receives the home at the time of equitable distribution. 

IF YOU FOUND THIS HELPFUL PLEASE LIKE AND SHARE WITH OTHERS.  IN MY NEXT POST - HOW TO SEPARATE 

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.