Alimony and the new tax code

P Lease check out the latest post from Gentile, Horoho & Avalli regarding the new  Tax Code and its affect on alimony.

http://gha-lawfirm.com/tax-alimony/

New Year, New Resolution (Methods): Collaborative Divorce

I find the beginning of a new year is a good time to remind people of the some of the new alternative to divorce and custody litigation, as well as other, more traditional means of dispute resolution.

When someone realizes that they are facing a divorce or custody dispute, they often face a moment of terror. Not just because there are now major questions looming as to how they will divide their assets or see their children, but because of the images it conjures up. Many immediately think of the tall, dark, imposing wooden panels of the courtroom walls; the stern, gavel-banging judge deciding their fate; the watchful eye of the gallery staring down the parties as their lawyers shout objections and witnesses burst into tears.

Fortunately, most of these images come more from a poorly written episodes of “Law & Order” than from reality. Even if a divorce or child custody disputes do proceeds towards litigation, typically the family court does not involve any of these sensationalized components. It’s more likely to involve modern facilities, a lack of gallery, limited objections and, frankly, I’ve never seen a judge bang a gavel once. There are, however, plenty of tears.

Nonetheless, the idea of something as personal as a separation from your spouse, or the custody of your children, proceeding in court can (and to some extent probably should) be a little terrifying.

In essence, in the traditional litigation process, a party appears in court, where they will sit quietly while someone they barely know (their lawyer) argues the facts and circumstances of their life to a person who essentially does not know them at all (the judge), who ultimately decides how they live the rest of their life—both financially and with regard to their children.

Many of the decisions in family court will be made without the parties even being present, and when they are, much like traditionally good children, they are preferred to be seen and not heard. All of this isolation from the decision making process can be quite terrifying for parties. In some ways it is even more terrifying than the specter of the dark wood panels and booming echoes of the stern Judge’s words off of the walls. It is for this reason, over the years, many parties have sought to find an alternative means of dispute resolution to assist them with their divorce and child custody matters.

One of the newer movements in alternative resolution in family law is the use of Collaborative Law techniques.

Collaborative divorce has been cited in several studies as offering parties an alternative to traditional litigation which is more confidential, faster, and potentially less expensive than the traditional path. More important to the parties themselves, I believe, is the fact that they are active participants in the collaborative divorce process.

By design, the collaborative divorce process focuses on the parties’ goals and interests, and their ability to work with one another, not just to finalize an initial agreement but also in the long term. Often the parties will have many years of co-parenting ahead of them, and a collaborative divorce can help them to communicate better, allowing them to address minor issues which may arise over the years without the need to lawyer up and run to court.

So What is Collaborative Divorce? Visit my website or keep an eye out for my next post to learn more.

For more information about collaborative law, or other means of dispute resolution, please feel free to contact me at 412-261-9900 to schedule a consultation. You may also contact me through my website at www.uncouplingpittsburgh.com.

Please note that commenting on this blog or otherwise electronically corresponding with Attorney Myers does not create an attorney/client relationship.

Which Home for the Holidays?

Its that time of year again! I'm not speaking of inappropriately early to arrive Christmas commercials and Toy books, I'm talking about holiday custody disputes.

For families that have separated, or are separating, deciding on holiday custody arrangements can be difficult. Below are some thoughts from an experienced child custody attorney on how to work through these issues.

With Thanksgiving arriving in just two (2) weeks, and Christmas, Hanukkah and a host of other holidays just around the corner, I wanted to recirculate my previous holiday post, updated slightly. Though another year may have passed, it rings just as true.

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 a transition, often the 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 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, Thanksgiving and 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 custody will work 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 December 22nd which will be filled with almost nothing but last minute motions trying to resolve Christmas custody disputes; and

2) You do not want to be there.

Please make the effort at resolution. If you can’t talk it through between yourselves, perhaps you can try mediating, or having your attorneys negotiate, but I assure you, you do not want to be litigating where your child eats dinner or opens a gift.

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.

www.uncouplingpittsburgh.com

School Choice?

Well, the Facebook page keeps telling me that it's been quite some time since I posted.   This, of course, forces me to think to myself, “What have I been up to since the last time I put up a blog post?” For the most part, the answer is school choice hearings. Anyone who practices in family law or has had much experience with it knows exactly what I'm talking about. People who do not probably are wondering what in the heck that means.

In Family Court, summer is school choice season.  What does that mean exactly?  Well, if you live in one school district and the person with whom you share custody lives in another, you will have to decide what school your child is going to attend. If you have been sharing custody and a parent moves to another school district, you may also face this issue.   Somebody might move, necessitating dealing with this tough issue. It could be that your child does nothing more than make it out of 5th grade and into middle school and now you're left wondering which middle school, because while you and your ex live in the same district that doesn't necessarily mean that your houses feed to the same middle school

You should probably just try to figure this one out, but if you don’t, what happens?

If you’re paying attention, you probably have your lawyer in court by late winter explaining to the Judge that, “Mom and Dad can't agree where Johnny should attend school and could the court please help us sort this out?“   

If the Court is going to help you to sort this one out, the first step is to have a judicial conciliation. I think I've mentioned judicial conciliations before in the context of a general custody case.  The principle is pretty much the same in the school choice context.  The parties’ attorneys explain to the Judge why it is they believe a particular school would be in the best interest of the child, and the Judge may offer some assistance in resolution if a compromise can possibly be reached.  However, most of the time you can’t just split the difference on schools, and where your child attends can often have an indirect impact on your overall custody schedule.  Transportation, activities, and a whole host of other issues are affected. 

When selecting between two different school districts there may be arguments that one is superior to the other based on test scores, class sizes, the teachers that you met when you went on a tour, and a thousand other little things that parties are likely to go find on the internet when they want to prove that they're making the better choice for their child.

School choice can be approached one of two ways.  First, the parties can ask the Court to decide which of the parents should have the right to make the decision because they're the superior decision maker and they are more likely to make a decision in the best interest of the minor child, etc.  More often though, the parties agree to allow the Court to make the decision as to which school Johnny attends.

Assuming that no compromise is reached at conciliation, the parties will then be scheduled to have a hearing (typically lasting a half-day) in front of the Court to present the Judge with information as to why their school should be chosen for Johnny.  

Prior to the hearing, the parties will be required to file Pretrial Statements telling the Court why you want what you want,  the people you will bring in as witnesses, documents you will  present, etc. Pretrial Statements are typically used to lay out the history of your case for the Court and bring up any other relevant issues in the past that may help them to make a decision with regards to school choice.   Many times, people want to use school choice as an opportunity to rehash and re-litigate their overall custody case.  This only expands the scope and prep of an already expensive decision making process.

Then there is trial prep--Meeting with attorneys to prepare for the case, having attorneys speak to witnesses, review documents, outline testimony, etc.

Then there is the hearing itself.   For every hour your lawyer spends in Court, there are several hours of preparatory work behind it.  So your lawyer meets with you, heads over to Court and is there for 3 or 4 or even 8 hours.  Math that out several times over, and your bill is really starting to add up for not being able to talk this through with your co-parent.

If it’s starting to, once again, sound like if you put more effort into working with each other and less into litigation you'd be happier and save a whole lot of money, that's because it’s probably true.   While there will always be situations that involve issues that simply do not allow for compromise (when there is abuse, or addiction, or other concerns for the child’s safety and well being), those are the exception, not the norm.  

So what's the takeaway?

If you haven't yet decided where Johnny is going to kindergarten in the fall, you are behind, but it’s not too late to raise the issue and if there's something very pressing going on, you may even get to talk to a Judge before fall semester.  Nonetheless, if you are facing a school choice issue or anticipate doing so in the future, you should probably start thinking about contacting an attorney now to see if anything can be done to resolve the issue or to, at least, have sufficient time to submit it to the Court.

If you like this post, please let me know by liking and sharing and, as always, if you have any questions, please don't hesitate to post in the comments section.  (Which does NOT create an attorney-client relationship.  You actually have to actually schedule an appointment and retain me for that to happen.)

Vacation (custody) All I Ever Wanted - updated for 2017

With the arrival of Memorial Day weekend and the official kick off of summer, it seemed a good time to share my post regarding vacation custody time. While another year has passed, the thoughts remain and will likely continue to be true. If you have a child, and the other parent has ANY custody time, I strongly suggest you read the below post, and contact me if you find yourself in a situation requiring legal assistance.

I am sure that if you haven’t already, at some point this summer just about all of you have had a conversation with a friend or relative about their plans for their big summer vacation this year: where they are taking the kids, what they are doing, how much those ride-all-day passes cost at the amusement park, etc.

What they probably didn’t share with you is whether or not their attorney had to go to court to make that happen. Seems kind of crazy, doesn’t it? That somewhere between airfare, hotel rooms, and tickets to Wally World, your friend or relative may have also been paying someone $300 per hour to go to Motion’s Court to ask for permission for a relatively mundane thing like a vacation with their children.

Unfortunately, I can assure you that this is an issue that arises in family cases and which has me spending a couple of days every summer standing in Motion’s Court along with numerous other attorneys (also billing their clients) to fight about the right of someone to take their children to the beach.

Maybe some of you reading this had to do exactly that.

Maybe some of you reading this are the reason someone else had to do exactly that.

In either case, it seems like a timely topic and a good opportunity to provide some advice:

1. You aren’t stopping a vacation request.

Are you co-parenting with Charles Manson?

If the answer to that question is no, then the answer to their vacation request is yes.

Even people who have minimal custody time throughout the year are going to have some entitlement to summer vacation. Yes, there are exceptions.

Family court is ruled by exceptions, not governed by rules.

Certainly, if there has been a history of abuse, substance abuse, etc., this may raise more questions about vacation time than your average case, but even in these situations, chances are the other side is getting a vacation with their kids. They may have to take a supervisor. That supervisor might be a parent, sibling, or some other relative/agreed upon third party. People on Megan’s List have taken their children on vacation. I am aware of more than one.

Saying that the court recognizes a very strong right to be able to take your children out of town for a week would be a gross understatement. While there may be whistles and bells and stipulations, chances are the vacation is happening. As always, the particular facts and circumstances will dictate whether or not there should be strings attached, and if so, what strings, but chances are you are losing your anti-vacation argument, or at least compromising your position considerably.

2. No, there is not an absolute right to throw your child in the car and drive towards the sunset. Much like any other issue that involves co-parenting, there has to be a sharing of information. Both parties are entitled to know where their kids are, on vacation or otherwise. This is true whether they are in town or out of town. It is particularly true when crossing state lines, international boundaries, etc.

At a bare minimum, the other side should know where you are going, how you are getting there, and how you can be reached once you have arrived. Depending upon how much the parties trust each other, there could be more or less information that needs to be exchanged, like how often you will communicate with the children via phone, if there is to be Skyping, exactly what family members will be there, whether or not alcohol can be consumed, etc. Itineraries for flights should be exchanged, hotel address and phone number should be provided, and agreeing to send a text to confirm you arrived safely isn’t going to kill anyone.

3. Vacations are generally also a “good for the goose, good for the gander” situation. You would like to take a week’s vacation to the beach and you want to tell the other side that they can’t? Again, unless you are sharing custody with Charles Manson, they are getting the same vacation rights you are.

You will probably get the same vacation rights every year so long as you are sharing custody of your children. Some people need these to be memorialized and go into painstaking details in a formal agreement as to who gets to select their vacation dates first in odd years versus even years, how many days’ notice you must provide, how detailed your itinerary has to be, etc. But, again, you are going on vacation.

Quite frankly, in more than a decade of practice, I don’t know that I have ever seen a vacation request denied. Certainly not in a situation where someone has provided reasonable notice, has a reasonable plan and is willing to reasonably accommodate the concerns of the other side.

Noticing a theme about reasonableness here? It is the golden rule in custody arrangements between parties. Make reasonable requests, grant a reasonable permission, don’t pay $300 per hour to go have a judge decide whether or not your kid should get to go to Disney World. They probably already think that they do.

If you found this helpful, please like and share and don't forget to visitwww.uncouplingpittsburgh.com for more information

I'm a Super Lawyer Again!

Super Proud to again be named a Super Lawyer Rising Star!

ACBA Elections !!

Thank you to everyone who voted for me in the ACBA elections.Proud to announce I am now a Member of the Judiciary Committee !

Same-Sex Marriage – Now We Know a Little More - May 2017

Last year, on the anniversary of a very significant court case which changed the laws regarding same-sex marriage, I posted about how the change in Pennsylvania and Federal law to recognize the right for individuals to engage in same-sex marriages still left a whole lot of unanswered questions about how exactly that was going to work through the court system. (See the post at https://uncouplingpittsburgh.com/same-sex-divorce-what-we-…/).

While the change in law clearly affected parties getting married prospectively, there were many unanswered questions about what would happen if a party who entered into a relationship prior to the change in law – when exactly did they get married in the eyes of the law? 

Would it be when the law changed? 

When they had a ceremony? 

Some other point in time?

There were a lot of unresolved questions that arose in the context of either divorce or separation, or with regards to potential estate claims.

Earlier this week, Pennsylvania Superior Court issued a ruling in In Re: Estate of Stephen Carter, Appeal of Michael Hunter No.1126 WDA which will help provide us with some clarity on this issue. In the case of the Estate of Stephen Carter, at issue was whether or not Mr. Hunter, Mr. Carter’s same sex partner, would have to pay estate tax after the death of Mr. Carter, which would not be owed if they were treated as married couple. The claim was made by Mr. Hunter how as the Court to declare that the two of them had a common law marriage which should be recognized by the estate court (Orphans Court) in Beaver County, Pennsylvania. The full Estate of Carter Opinion can be found here.
http://law.justia.com/…/superior-co…/2017/1126-wda-2016.html

For much of its long history, Pennsylvania courts have recognized two types of marriages in the Commonwealth: ceremonial marriage (i.e., in front of some sort of officiating individual with a recognized, issued-by-the-State certificate, probably with several witnesses, etc); and common law marriage. While common law marriage is no longer the law of the land, for many years, two parties who behaved in the manner of a husband and wife and who held themselves out to others as husband and wife, could be recognized, by law, to be husband and wife, even if there had been no formal marriage license, ceremony, etc.

While the recognition of common law marriages ended in Pennsylvania on January 1, 2005, the Commonwealth has continued to allow the recognition of common law marriages entered into prior to that date.

Please note that I do say “recognizing parties holding each other out as husband and wife” because during this period of time there was no such thing as same-sex marriage. Therefore, all of the case law and statutes speak in terms of heterosexual couples.

Just a quick note, it is a very common misconception that to be common law married, the couple must be together for period of seven (7) years. This is untrue. There is no particular time period associated with common law marriage. It has do with how the parties act towards one another and how they represent themselves to others. You can be common law married after seven (7) months or not be common law married after seventy (70) years. It just depends on how you behave.

In the instant case, Mr. Hunter began dating Mr. Carter 1996, proposed marriage Christmas of 1996, and the couple had an exchange of rings with one another on or about February 18, 1997. Their exchange of rings was nearly a decade prior to the change in law. Every year after the exchange of rings until the death of Mr. Carter, for seventeen years, the parties continued to celebrate this date as their anniversary. In addition, throughout this period of time, they lived together, shared finances, held themselves out as a couple, and in any and all ways, acted as if they were married, with the exception of the fact that the law would not recognize this.

Last year, the case came before Judge McBride of Beaver County. Mr. Hunters request to declare that the parties were married was not opposed by:

1. the Social Security Administration (who would have to pay out a benefit to the surviving spouse),

2. the Internal Revenue Service (who would not be receiving tax money if the marriage was recognized due to spousal exclusions on estate taxes), or

3. other possible beneficiary is of Mr. Carter’s estate.

Judge McBride, nonetheless, opined that it was not possible for the parties to have been common law married because same-sex marriage was not recognized at the time that the parties’ exchanged rings.

The Superior Court disagreed completely, finding that once it had been ruled unconstitutional to have prohibited same-sex couples to marry, all other portions of the statute flowing from that prohibition were, likewise, unconstitutional. As such, it was no more constitutional for the Commonwealth of Pennsylvania to fail to recognize same-sex common law marriage than it was it was to refuse to recognize same-sex ceremonial marriage.

While the laws regarding common law marriage have changed over the years, Pennsylvania does continue to recognize common law marriages that were entered into prior to January 1, 2005. As the legal analysis of the Superior Court in Carter set froth, the nature of the parties’ relationship was consistent with a marriage and met the requirements under case law to qualify as a common law marriage. The parties should, therefore, have been determined to be a married couple as of February 18, 1997, and have all rights associated therewith for purposes of Mr. Carter’s estate. The fact that they were a same sex couple should not put them in a different situation than a similarly situated heterosexual couple.

This does help to provide us with some guidance as to our determination of when a same-sex couple married under the eyes of the law, assuming they could prove common law status existing prior to 2005. However, there is still a great big question mark about what would happen to a couple whose relationship began after January 1, 2005, (when common law marriage stopped being recognized), but prior to May 20, 2014 when same-sex marriages were recognized in Pennsylvania.

During this period of time, a heterosexual couple who chose to forego a ceremonial marriage and remain ‘common law’ had other options. To the extent that the court does not recognize their common law marriage, there is a logical sense. You chose to not go do ‘A,’ but you still had the option to do ‘A,’ so we will not recognize ‘B.’

In the case of a same-sex couple, they would not have had a choice between A or B. They had no marriage option at all. It is possible that the courts would have to recognize same-sex, common law marriages during this period of time, but not heterosexual, common law marriages? Would that put similarly situated parties on different footing in the eyes of the law or were they already on such different footing that the only option we have to help cure the deficiency of our legislature and courts to not legalize same-sex marriage sooner?

As these issues continue to develop, I will continue to blog.

Thanks for reading, and please feel free to comment and share.

ACBA Elections - April 2017

Hey fellow members of the ACBA!

As I am sure you are aware, it is election season again and you should be receiving the link to the ACBA ballot shortly. This year I am running for the Judiciary Committee to help to assure that the voters of Allegheny County are afforded the opportunity to vote for strong, qualified judicial candidates.

I would greatly appreciate your vote and support. I'm easy to find on the ballot. I'm the last name on the Judiciary committee list :)

I thank you in advance for taking the time to vote for me.

Becky

Tax Season is Coming - April 2017

Many folks are filled with dread at the mere thought of having to sit down, pull out their W-2s, and work their way through that 1040. For many people, tax season is always a headache and one they would prefer to avoid, if at all possible.

For parties who have recently separated or divorced, tax season can bring with it a host of other issues that must be addressed in order to complete their taxes and file same in a manner that is not going to get them audited. If you have recently divorced or separated, you should consult with your account to see how you may be impacted these issues.

Separation and divorce can affect many aspects of how a party files their taxes – from their filing status, to the deductions they can take, to even the income they have to include. This is also an area that draws a lot of investigation from the IRS. Anytime someone declares a dependent or attempts to take a deduction for payment of alimony, they are required to include the social security numbers of their dependents or the party to whom they are paying support. If those social security numbers appear as dependent deductions on another return or the person who is indicated as receiving alimony did not declare same as income, it is basically like waiving a flag to the IRS and shouting to them that you would simply love to be audited.

As such, we as family law attorneys spend a fair amount of time in the weeks leading up to April 15th addressing these issues with clients, trying to assure the parties are filing consistent returns and/or providing consistent information to the IRS. Not everyone has the luxury of being able to afford an attorney and a private accountant to help you with these decisions.

As it happens, I recently stumbled across the below article that I think does a good job at hitting on a couple of the major tax issues that come up in the context of divorce and separation. They require a little bit of thought prior to filing tax returns. Rather than reiterate, I will simply provide the link here and say that it touches upon how separation or divorce can affect your filing status, division of deductions, use of credit, etc. and anyone who has recently undergone a divorce or separation should take a quick peak just to be sure that they have these bases covered. Nothing in this article or the article linked below should be construed as tax or legal advice.

Good luck with the tax deadlines.

http://www.wife.org/five-things-need-know-filing-taxes-divorce

New Year, New Resolution (Methods):

How Collaborative Divorce is Changing Divorce and Child Custody

When someone realizes that they are facing a divorce or custody dispute, they often face a moment of terror. Not just because there are now major questions looming as to how they will divide their assets or see their children, but because of the images it conjures up. Many immediately think of the tall, dark, imposing wooden panels of the courtroom walls; the stern, gavel-banging judge deciding their fate; the watchful eye of the gallery staring down the parties as their lawyers shout objections and witnesses burst into tears.

Fortunately, most of these images come more from a poorly written episodes of “Law & Order” than from reality. Even if a divorce or child custody disputes do proceeds towards litigation, typically the family court does not involve any of these sensationalized components. It’s more likely to involve modern facilities, a lack of gallery, limited objections and, frankly, I’ve never seen a judge bang a gavel once. There are, however, plenty of tears.

Nonetheless, the idea of something as personal as a separation from your spouse, or the custody of your children, proceeding in court can (and to some extent probably should) be a little terrifying.

In essence, in the traditional litigation process, a party appears in court, where they will sit quietly while someone they barely know (their lawyer) argues the facts and circumstances of their life to a person who essentially does not know them at all (the judge), who ultimately decides how they live the rest of their life—both financially and with regard to their children.
Many of the decisions in family court will be made without the parties even being present, and when they are, much like traditionally good children, they are preferred to be seen and not heard. All of this isolation from the decision making process can be quite terrifying for parties. In some ways it is even more terrifying than the specter of the dark wood panels and booming echoes of the stern Judge’s words off of the walls. It is for this reason, over the years, many parties have sought to find an alternative means of dispute resolution to assist them with their divorce and child custody matters.

One of the newer movements in alternative resolution in family law is the use of Collaborative Law techniques.

Collaborative divorce has been cited in several studies as offering parties an alternative to traditional litigation which is more confidential, faster, and potentially less expensive than the traditional path. More important to the parties themselves, I believe, is the fact that they are active participants in the collaborative divorce process.

By design, the collaborative divorce process focuses on the parties’ goals and interests, and their ability to work with one another, not just to finalize an initial agreement but also in the long term. Often the parties will have many years of co-parenting ahead of them, and a collaborative divorce can help them to communicate better, allowing them to address minor issues which may arise over the years without the need to lawyer up and run to court.

So What is Collaborative Divorce? Visit my website or keep an eye out for my next post to learn more.

For more information about collaborative law, or other means of dispute resolution, please feel free to contact me at 412-261-9900 to schedule a consultation. You may also contact me through my website at www.uncouplingpittsburgh.com.

Please note that commenting on this blog or otherwise electronically corresponding with Attorney Myers does not create an attorney/client relationship.

WHICH HOME FOR THE HOLIDAYS?

With Thanksgiving arriving next week, and Christmas, Hanukkah and a host of other holidays just around the corner, I wanted to recirculate last year’s holiday post, updated slightly.  Though another year may have passed, it rings just as true.

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, often the 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 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, Thanksgiving and 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 custody will work 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 December 22^nd which will be filled with almost nothing but last minute motions trying to resolve Christmas custody disputes; and

2) You do not want to be there.

Please make the effort at resolution. If you can’t talk it through between yourselves, perhaps you can try mediating, or having your attorneys negotiate, but I assure you, you do not want to be litigating where your child eats dinner or opens a gift.

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.

Congratulations Erika!

       Congrats to Erika Wahl for officially joining Gentile, Horoho & Avalli as an attorney!!   you have been an absolutely wonderful law clerk for the last 3 and a half years and I can't wait to watch you kick but as a real, grown-up Lawyer   

DIVORCE LAW CHANGES

Its Official. On Tuesday, October 4th, Governor Wolf signed what was HB 380, which is now PA law regarding the waiting period for a contested divorce. The law becomes effective 60 after it's signing (December 3). Under the new law, parties who separate after December 3, 2016 will only need to live separate and apart for a period of one year to move forward with a divorce action without the other parties' consent.

SHOULD I STAY OR SHOULD I GO NOW? - Another legislative update

It’s happening again. There has been another push to pass House Bill 380, which would shorten the waiting period for a no fault, contested divorce from the current two (2) years to only one (1) year. It looks like it is going to happen. Of great importance, the Bill, in its current form, is not retroactive. As set forth in its current version:

"The amendment of 23 Pa.C.S. §§ 3301(d) and 3323(g)(3) shall apply to periods of living separate and apart that commence after the effective date of this section."

All signs are pointing to the Bill being signed into law in the next few days, but will not go into effect for a period of sixty (60) days. As such, parties who are currently thinking about separating have some very big decisions to make, and very soon, to determine whether they will fall under the new law or old.

If you are thinking about a separation, you absolutely, positively should have a thorough consultation with an attorney to assess how this change could affect your rights to support, assets, and other claims.

The full Bill is below.

Please like and share if you found this interesting or helpful.

http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2015&sessInd=0&billBody=H&billTyp=B&billNbr=0380&pn=2474

GRANDPARENT CUSTODY - Grandparents Rights: Wrong?

Switching gears in what had been a few decades of continually expanding rights for grandparents in the state of Pennsylvania, on September 9, 2016, in the case of D.P. & B.P., his wife, v. J.P. & A.P., the Pennsylvania Supreme Court issued an opinion which would now serve to limit the times at which grandparents can seek partial custody of their grandchildren in Pennsylvania.

In D.P., the Court framed the question before them as being whether or not “the parents’ fundamental rights are violated by the conferral of standing based solely on a parental separation lasting at least six (6) months.” Take the legalese out of that, it used to be that any grandparent could sue for partial custody of their grandchild if mom and dad had been separated for six (6) months or more (or never together). There was no need to prove that it was in the best interest of the children for the grandparents to assert their rights--they got to do it anyhow and the resulting custody schedule would then be based on what was in the best interest of the children.

In D.P., the parents of the children had been separated for a few years, but never filed anything with the Court. The parents continued to co-parent and agreed between the two of them that the grandparents should not get to see the children. Approximately two years after the parties separated, the grandparents filed a Complaint for Custody asking for time with the children over the parents’ objections. The grandparents did not tell the Court anything to suggest that mom and dad were unfit or that the children were in any danger with mom and dad.

Under the existing statute, 23 Pa. C.S.A. 5325, this was an acceptable basis for grandparents to sue for custody. Attached is a link to the full text of the statute. After the grandparents sued, the parents indicated that the statute violated their 14th Amendment Rights to Due Process and Equal Protection. The Trial Court in Westmoreland County agreed with the parents, finding that the parents had a fundamental liberty interest in raising their children as they see fit. The trial court determined that the language in the Custody Act was not narrowly tailored enough to survive a strict scrutiny analysis as a matter of constitutional law. They found that the parents had jointly decided the children would have no contact with the grandparents and suggesting they were unfit to make this determination simply because they were separated would be an error. The trial court held that there was not an adequate basis to disturb the ordinary presumption that fit parents act in their children’s best interest.

The Supreme Court summarized the lower court’s opinion as follows: “in as much as the law presumes that married parents living together are able to co-parent their children without judicial interference, there is no constitutionally sound basis to support a classification whereby married parents who are separated should be treated differently.” In this regard, the Court indicated that, “The statute reflects an inappropriate ‘implicit presumption of unfitness’ attached to separated parents solely on account of their separated status.”

The PA Supreme Court’s opinion, linked here, (link) contains an interesting review of the history of grandparents’ rights cases in Pennsylvania, factually distinguishing them from D.P. as involving various cases of either parental unfitness, divorce, or death of a parent.
Counsel for parents further went on to differentiate D.P. as being a case where Court intervention was never sought by the parents, where they were never subject to an Order of Court prior to grandparents filing a Complaint, and where the parents did not disagree with regards to matters of custody or visitation.

The parents went on to suggest that, “Many couples who live together lead dysfunctional homes and make poor parenting decisions, all of which evidences the arbitrariness of §5325’s implicit assumption that separated parents are less fit as parents than those who live under the same roof. Consequently, parents proposed that the legislative classification which rests on that assumption does little to advance the state’s interest in protecting children or promoting their welfare.”
In its analysis, the Supreme Court recognized that grandparent visitation and custody statutes inherently authorize state action and are subject to constitutional limitations. It further went on to state that it is clearly undisputed that §5325 “burdens the right of parents to make decisions concerning the care, custody, and control of their children; that such right is a fundamental one.”

After an analysis of the arguments set forth by the parents and grandparents, the Court acknowledged that, very broadly speaking, the state does have the power to safe-guard children from various kinds of physical and emotional harm as well as promoting their well-being, but that right alone would not, in this case, extend to allow the Court to intervene in a family who never sought the Court’s involvement, stating, “As this case shows, when parents separate they do not always initiate divorce proceedings or otherwise request court involvement in their family affairs.” “Although separation may involve a disruption of the nuclear family unit, the children are often shielded from having to participate in court proceedings and are, likewise, free from having to assimilate the knowledge that the government is now involved in their family life.”

The Court also noted that the grandparents failed to present to the Court empirical data which would suggest the separation has the same deleterious effects on children as divorce. As this type of information was presented in prior grandparent cases, the court did not change the part of the statute that allows grandparents to seek custody when the parents are divorced or deceased.

The Court did note that parents who were involved in divorce proceedings or who were divorced could potentially agree to limit their children’s contact with third parties but declined to address that issue in its opinion, as the only issue before it was whether or not the parents could do so when merely separated. The Court noted that they found court-mandated association with third parties more intrusive to parents’ constitutional rights when they had not themselves sought the Court’s oversight relative to custody or marital dissolution.

After its analysis, the Court found that the language of §5325 relative to grandparents’ standing in the event of a six (6) month separation was “not narrowly tailored in furtherance of a compelling governmental interest” (meaning it was not structured with precision and that the legislature could have chosen a less drastic means of effectuating objectives).

The Court finally noted that in confronting a constitutional flaw in a statute, they are to provide a limited solution affecting only those unconstitutional portions of same. As such, the Court only removed the second portion of Paragraph 2 with regard to six (6) months separation to be invalidated.

However, it appears from the language of the Court’s main opinion, as well as the dissenting opinions entered by Justices Baer and Wecht, there are still concerns regarding the constitutionality of the remaining provisions of 23 Pa. C.S.A. 5325.

Does this affect your rights with regards to custody? If you think it might, you should speak with an attorney.

If you found this interesting or helpful, please like and share!

www.uncouplingpittsburgh.com

http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm…

http://law.justia.com/…/supreme-cou…/2016/25-wap-2015-0.html