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.

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.

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

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Same Sex Divorce - What we know So Far

Two years ago today, on May 20, 2014, the Supreme Court of Pennsylvania ruled in the case of in Whitewood, et al., and determined that same sex marriage would now be recognized in the courts of Pennsylvania.  As of that date, despite the fact that it was not yet nationally recognized, the state of Pennsylvania determined that they would extend the right of marriage to same sex couples throughout the Commonwealth of Pennsylvania. 

The opinion issued by the court, which is linked below, (http://www.pamd.uscourts.gov/sites/default/files/opinions/13-1861.pdf) went on to state that Pennsylvania, in addition to recognizing same sex marriages performed within our state, would also recognize same sex marriages from other states.  This would mean that any same sex couples would have all of the rights, and also the responsibilities, that came with traditional marriage, including, though not specifically enumerated in the opinion, the right to divorce.

It would be more than a year later, specifically on June 26, 2015, until the Federal Courts, by way of the Supreme Court opinion in the case of Obergefell v. Hodges, would determine in that these rights should be extended nationwide. It seemed that this very emotional, complicated issue of same sex marriage had been rather succinctly resolved by the courts. 

However, neither the Supreme Court’s opinion nor the State of Pennsylvania’s opinion spoke much about same sex divorce.  The fact of the matter is that most people do not generally enjoy discussing divorce.   Thus, it is probably not a great surprise that when issuing this ground changing legal precedent, that the issue of what happens when a same sex marriage ends never made its way into the courts’ opinions.  Same sex divorce, however, has made its way into our courts, and with it comes a host of novel issues which have yet to be resolved through either legislation or through court precedent. 

In the case of a same sex marriage, one of the most difficult questions to determine is what is the actual date of marriage?  The actual date that the same sex couple became a legally recognized couple has been subject to a fair amount of argument in this burgeoning area of law.

Let’s look at a hypothetical situation:

Let’s say we have same sex couple who met in Pennsylvania in the early 1990’s, dated for a period of time, and began living together in 1994.  Then, in 2005, the couple traveled out of state to New Jersey to obtain a civil union and then returned to Pennsylvania.   

On exactly May 25, 2014, just a few days after the Pennsylvania court’s May 20, 2014 decision, the couple decided to become legally married in Pennsylvania. And on June 26, 2015, the Supreme Court said they were married in all 50 states now.

 Then, in May of 2016, the couple separated.

So When Did They Get Married??

The federal government has only recognized same sex marriage for a period of eleven months, but Pennsylvania’s May 20, 2014 ruling allowed this couple’s marriage vows to take place in Pennsylvania on May 25, 2014, and be legally recognized and recorded like any other marriage. 

However, the hypothetical couple’s civil union in New Jersey began ten years prior to their legal marriage in Pennsylvania.

 Further, the date they began to reside together as a couple, in 1994, predates their legal marriage by another decade. 

There is no real answer to this question yet; because there is no prevailing case law, the question remains to be answered.

Did the couple marry on June 26, 2015, when the Supreme Court recognized same sex marriage?  Probably not. 

The states have the right to afford greater protections and rights to their population than those afforded by the federal government.  Basically, the federal government’s rules and rights, etc., are your baseline.  The states have a fair amount of latitude to expand upon those federal laws, and considerably less latitude to infringe upon them.  As such, June 26, 2015 would not be the couple’s date of marriage, given that Pennsylvania’s right to issue an earlier ruling on same sex marriage occurred on May 20, 2014. 

Did the couple marry on May 25, 2014, after the Pennsylvania Courts ruled in the case of Whitewood?

This date was when the Pennsylvania Court recognized same sex marriage and permitted the issuing and recording of same sex marriage licenses.  However, in the case of our hypothetical couple, they were together for more than twenty years prior to the state’s ruling.  Does that count for anything?  The case of Whitewood also gave full faith and credit to marriages occurring in other states stating “and already married same sex couples shall be treated as such.”  

So did this couple’s marriage begin in 2005, since they obtained a civil union in New Jersey? 

This date may not be right either because in Whitewood, it states that there will be full faith and credit to “already married” same sex couples.  It does not say civil unions, and it does not say domestic partnerships.  If one looks to the laws of New Jersey, they have, at various points in time, recognized domestic partnerships, civil unions, and same sex marriages.  Each of these is a separate legal animal, and none of them automatically converts to the other. 

So…can Pennsylvania give full faith and credit to a New Jersey civil union, and treat that as the date of marriage?  Maybe.  Some courts have done this, though I think a technical reading of Whitewood does not extend that far, which leaves this issue unresolved.

Finally, did the hypothetical couple potentially marry back in 1995, when they began living together?  Again, this is a maybe. 

Historically, Pennsylvania recognized common law marriage, i.e. people are married if they held themselves out to the world as “husband and wife.”  Obviously in this case we are talking about “husband and husband,” or “wife and wife,” so is it possible that it should still hold true?

While the divorce code amendments of 2005 directed that common law marriage would no longer be recognized going forward, there was no prohibition on looking back on common law marriages that came into effect prior to the 2005 amendments.  

Is this perhaps what should be happening with same sex marriages?  Maybe.  But again, the fundamental issue is this: Is it even possible for two people to hold themselves out in a husband and wife like manner, when the right to be husband and husband, or wife and wife, did not exist for them?  Heterosexual couples who decided to act as husband and wife, but not solemnize their marriage, had this other option.  With same sex couples, this option did not exist.  Again, this would only be applicable in a situation where the parties’ relationship predated the 2005 divorce code amendments, and the relationship existed for a duration of more than ten years.

What happens with relationships that existed for less than ten years?  This is an excellent question, because nobody knows for sure at this point.  Many arguments have been made that the courts (in their efforts to effectuate economic justice), should look to the period of time that the parties were in a relationship, but not yet in a legally recognized marriage.  Of course, this opens the can of worms for heterosexual couples who had resided together for long periods of time prior to actually getting legally married to argue the same thing.  However, there is a factual and a legal argument to be made that the two are not analogous, since the heterosexual couples would have had the right to get legally married had they so chosen.

So when did they get married? 

Over the years, I am sure this area of law will continue to develop and ebb and flow, but for now, there are a lot of unanswered questions.  We will keep you posted as new case law begins to develop, which hopefully will not take very much longer.

If you have found this post to be interesting, please feel free to share it, and to like my page.  I would love to hear your thoughts in the comments section below.

Thank you.

www.uncouplingpittsburgh.com

DIVORCE - Making Ours Mine - Division of Assets in Pennsylvania

One of the issues that comes up in all most every divorce and in many separations is how to divide property that parties acquired during their relationship.  Unfortunately, if this relationship was not a marriage, it can be very difficult to figure out how to distribute jointly titled vehicles, homes, and other assets and it may involve numerous separate actions to address these items. 

If the parties who are uncoupling were married, the Divorce Code sets forth well-established rules and guidelines for how to divide those assets that they acquired during the marriage through a process that we call “equitable distribution.”   Many clients I meet with are surprised to learn that, in Pennsylvania, assets are not divided equally.  While they may be, it is not an edict that everything is distributed 50/50.  The court engages in an analysis of numerous different factors to determine what division would be equitable under the circumstances and tries to “effectuate economic justice between the parties.”

What does that mean?

I recently came across a very good quote out of Miller v. Miller, 783 A.2d 832 (Pa. Super 2001) which describes it as follows:

“The methods by which divorcing parties effectuate economic justice are familiar and well settled.  The process of equitable distribution is an exercise in martialing, valuing and dividing the marital pot in a fair manner.  Not every piece of property can or should be split in half.  Sometimes one spouse is entitled to more property than is the other.  In some instances, the sale of property must occur so that each spouse can receive his/her rightful amount.  In other instances, a spouse may be allocated a specific item of property and the other spouse will receive cash or credit for his/her share in that same item.

In all of these scenarios, whether the property division is done by an agreement of the parties or a Court Order, the goal is the same: to take the assets of the marriage and divide them in such a way as to effectuate economic justice between the parties.” 

So, what have we learned from the above quote? 

Frankly, we learn a lot from this little quote. First off, there are a lot of ways to “skin the cat.”  Not only will no two people’s cases play out exactly the same (so just because it happened in your buddy’s divorce doesn’t mean it is going to happen in yours), but it may also be that no two assets in the marital estate are divided the same. 

The courts do not go through the list of marital assets and divide every single one 50/50. 

One asset may be offset against another, i.e. “you are keeping the house, so I am keeping the checking account.”

Or some assets may warrant being skewed more in favor of one party than the other.  So, your overall division of the marital estate might be 50/50 but somebody might get 70% of the fair market value of the property that they inherited two years before separation but retitled in joint names (see my prior post with regards to the “Transmutation of Assets”).  Since the other side didn’t really do anything to generate this asset, this skew in favor of the inheriting party may seem more “just” to the Court.

As stated in the above Miller quote, a big part of the equitable distribution process is to identify the assets and liabilities that are in the marital estate and determine their values.  If you don’t know all of the assets or their values, you may need to engage in discovery, which is a topic I am sure I will get around to discussing at some point.  Thereafter, the Court would move forward with dividing these assets in a manner that seeks to effectuate economic justice. 

It is also important to note that it is well within the authority of the Court to order you to sell off your belongings.  While they are generally not looking to have you fire sale every item you have acquired in the course of your marriage, it may be necessary for a piece of the marital estate to be sold.   Simply because one party may desire to retain an asset, if it is not economically feasible, it may be ordered to be sold by the Court, even over your objection.  

All of the above issues will depend upon the Court’s analysis of what we call the “equitable distribution factors” set forth in the Divorce Code. There are twelve different factors that the Court can take a look at to decide the fairest way to divide assets between the parties.  They may look at the length of marriage, the incomes of the parties, one party’s contributions to the marital estate as a homemaker, what separate assets either party might have beyond the marital estate, etc. 

The Court’s analysis of these factors as applied to the specific facts of each individual case dictate how the Court fashions its award for equitable distribution, which, as stated, may be an equal 50/50 division, but may not.  Again, like with all matters that fall into the Family Court, the determinations that are rendered are usually very fact specific and the change of one of the characteristics about a party or their marriage may have a significant impact on how the marital estate is most equitably divided.

Again, if you are contemplating divorce, for more particular guidance with regards to how your marital estate may be divided, you should consult with an attorney who can review the history of your marriage and the assets that comprise the marital estate to provide you with more specific advice unique to your situation.

If you found this article to be helpful, I ask that you please share it and “like” my page.  As always, if anyone has any questions or suggestions for follow up topics, please comment below. 

www.uncouplingpittsburgh.com

DIVORCE Should I Stay or Should I Go Now: A Legislative Update

Some of you may have read my prior blog posts regarding establishing separation and how that can affect your rights to support, custody, equitable distribution, and ultimately, a Decree in Divorce.

As I mentioned in those posts, in Pennsylvania we have what we call a two-year waiting period. What this ends up meaning is if one spouse wants to have a divorce and the other does not, the parties must be living separate and apart for a period of at least two years before the court has the right to issue a Decree in Divorce. For example, here in Allegheny County you cannot even have a meeting with the judge and start talking about the distribution of your assets until that two-year mark has been reached. (Obviously, this is not true in cases where you want to work together to try to reach a resolution, mediate, collaborate, etc. You are free to discuss these issues at any time. This is one of the advantages of pursuing resolution of your matters outside of the court context).

For a very long time, there have been concerns that this two-year waiting period is not necessary, and that it needlessly prolongs the divorce process and otherwise makes things longer, more costly and more difficult for the parties. It should be noted that the separation period used to actually be three years and was moved down to two sometime ago. There has, intermittently over the last several years, been a push to try to reduce the two-year waiting period to a one-year waiting period. A one-year waiting period would be more consistent with many of our neighboring states, some of which require only six months between separation and when the court has the right to enter a Divorce Decree. House Bill 380 was introduced to reduce two-year waiting period down to one.

This legislation was proposed in the House and was approved by the House after which time it moved into the Senate. As of last week, the Bill was approved by the Senate’s judiciary committee, with only one of the fourteen votes being against it.

It is anticipated that the Senate is going to have a full vote on the fate of HB 380 in the near future. Under the terms of the Bill, it would be effective sixty days after its passing. So, the waiting period could be changing soon. The potential of changes to this waiting period may be something you wish to consider, when determining whether or not it is in your best interest to separate at this time.

I will keep you posted as to when this goes to a full vote and may be signed into law. For now, the two-year waiting period remains, but this may not be the case for much longer.

If you found this helpful, please like my page and share this post with others.

www.uncouplingpittsburgh.com

Thank you.

CHILD CUSTODY - Who's the Boss? An Introduction to Legal Custody

When most people think about custody, they think about where their child is going to be, with whom and at what time.

This first kind of custody that most often comes to mind is what we call physical custody.  It is the actual schedule that dictates with which parent (or grandparent or in loco parentis person) a child will be with at a particular period of time.  The physical custody components may include rules for vacations, holidays, when and where you meet, etc. 

However, as most folks know, there is a whole lot more to raising a child than just showing up somewhere.  That is where we get to the second type of custody that people don’t think about nearly as often. 

This second component is what we call legal custody.  There are a lot of different ways that parties can divvy up the physical custody time with the child: equally shared, shared, primary, partial, visitation, supervised, etc.  These are all terms that have to do with the amount of time a party has with their child.

Shared legal custody is, in some ways, much more simple and, in other ways, much more complicated. 

There are only two answers with shared custody: yes or no.  The answer is going to be “yes, you are sharing legal custody” in about 99.9% of cases.  Unless someone is currently incarcerated or has habitually been just a raging, uncooperative pain in the ass, legal custody is typically shared.

So what is “legal custody,” you ask?

Legal custody is, in essence, decision-making rights.  While you needn’t agree on the most minute of issues with regards to your child (i.e. skim milk or 2% milk?), you are expected to be on the same page for the major, life-altering events such as education, religious upbringing, medical decisions and the like.

 These major decisions tend to trickle down into some smaller ones.  For instance, what type of activities your child will participate in, will they play travel baseball, who is going to be responsible for getting them there, etc.  Some of these smaller decisions, as far as participation in activities, can have major impacts on what your physical schedule looks like. It is very difficult for a child to spend weekend time with one of their parents if weekend time is being eaten up by going out of state for travel sports events.  Deciding to commit your child (and therefore, your-co parent) to these types of activities is part of legal custody.  Neither parent should be making decisions that significantly infringe upon the time spent with the other parent over the other parent’s objection or without their knowledge.

If you are sharing custody, a child’s participation in sports or other activities is likely going to affect both parties’ custody, and they need to be on the same page before anyone starts signing Johnny up for baseball or even talking to him about whether or not he would like to play.   Grownups need to be the ones making the decisions here, and simply because a child says he would like to do something doesn’t mean that is the definitive answer if the other parent is not in agreement.  It’s also not fair to tell your child they can do something before having this sort of conversation with the other parent. 

Similar ideas apply in medical situations. If Johnny is on his way to the ER with one parent, the other parent should be called.  They should know what is going on as it is happening, not days later when you get around to it. Even more routine doctor visits should be discussed between the parties, at least until they work out a system of how those are handled. You probably both don’t need to be standing in the pediatrician’s office for every single well visit, but you ought to be on the same page as to who your child’s doctor is, how to get ahold of them, and when your kid needs to go see them. 

As I have mentioned previously, you can end your relationship with someone as your partner, but you cannot end it as co-parents.  You need to be able work together to address the decision making aspects of raising your child together.  There are some ways to work through these, be it through co-parenting counseling, mediation sessions, or perhaps even voluntary parent coordination.  However, as more and more parents are sharing custody of their children, these legal custody issues are coming into play in front of judges in Motions Court when parties can’t work through disputes.  I can assure you this is not anything that the court likes to see.

In my next post I will discuss how counselling, mediation, or parent coordination can help you work through these issues before you end up in Court.

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Thank you.

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.