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October 05, 2012
Posted by HKHLaw

Pennsylvania paternity cases fall into two general categories, those involving children born during marriage and those with children born outside of wedlock.

Intact Marriage

Pennsylvania law has historically maintained that children born to intact marriages are considered to be the children of the husband. In those cases, the identity of the biological father is not even considered and genetic testing is not permitted except under very limited circumstances. A recent Pennsylvania Supreme Court case involving an intact marriage may signal that the standard for paternity in intact family situations may be changing to emphasize the best interests of the child.

Out of Wedlock

When children are born out of wedlock, paternity is often established by blood and/or genetic testing (if paternity is not acknowledged by the father of the child at some prior time). Both married and unmarried fathers may be prevented from contesting paternity where the individual holds the child out to be his own and either receives the child into his home or provides support for the child.

September 18, 2012
Posted by HKHLaw

Whether or not a party can deduct legal fees paid by that party depends on federal tax law.  Legal fees paid for the production of taxable income, such as the legal fees paid by a dependent spouse to obtain an alimony award (because alimony is taxable to the recipient), are generally deductible.  However, that deduction may be limited or lost in its entirety because of the alternative minimum tax (AMT).

On the other hand, legal fees paid by the independent spouse to his or her own attorney for the negotiation or litigation of alimony when that spouse ends up paying alimony, are not deductible.  Moreover, legal fees paid by one spouse for the other spouse’s legal fees are also not deductible.  In that circumstance however tax planning is permitted by the IRS and a frequent methodology employed is to have the payor spouse pay the other spouse’s attorneys’ fees in the form of additional alimony.  The alimony is deductible to the payor and, while it is taxable to the payee, when the payee uses that alimony to pay his or her attorney, the fees are deductible by the payee.

Whenever one is dealing with issues of deductibility/taxability, one should always seek the advice of a qualified professional.

September 18, 2012
Posted by HKHLaw

A frequently asked question is: Will my spouse have to pay my legal fees/will I have to pay legal fees for my spouse?  The statutory law permits the court to award legal fees in a variety of circumstances including in divorce, child support, custody (in some circumstances) as well as for a sanction bad behavior (intentional delays, refusal to comply with discovery, filing repeated and unreasonable motions, lying, and other “obdurate and vexatious” behavior).  Legal fees can be awarded at the end of the case or can be awarded on an interim basis.

Interim legal fees are much more commonly dealt with by means of an interim award of equitable distribution (see interim agreements) where the spouse who may control liquid assets agrees that an interim distribution can be made to the other spouse so that that spouse can retain counsel and experts.  When a case is finally litigated, a court can award legal fees along with equitable distribution, alimony, etc.  However, the awards are frequently puny and it is virtually impossible to obtain an order requiring one spouse to pay 100% of the legal fees of the other spouse.  Factors considered by the court include the reasonableness of the hourly rate, the reasonableness of the services provided, the results obtained, the difficulty of the issue, and the amount in controversy.

 

September 18, 2012
Posted by HKHLaw

Pennsylvania law provides for three types of support for a dependent spouse.  Alimony is the term given to periodic financial support awarded at the end of a divorce case and intended to run at a designated amount and for a term of years.  Despite repeated efforts by the practicing bar, Pennsylvania’s legislature has refused to adopt any guidelines to assist practitioners, parties, and the courts in determining any type of uniformity in either the amount or the length (the term) of alimony awards.  As a result, alimony awards in Pennsylvania are all over the map.  For example, in Dauphin County when alimony is awarded it is usually awarded for a set amount and a for a set term.  However, the amounts and terms vary not only by the income of the payor and the needs of the recipient and the length of the marriage, but also by the whims of which divorce master or which judge is making the decision.  Generally speaking the longer the marriage the longer the term of alimony but there is no consistency in alimony awards even when comparing marriages of similar length and similar incomes.  In Cumberland County, almost all divorce cases, regardless of the length of the marriage, result in indefinite alimony.  In other words, the term of the alimony continues indefinitely until there is a major change of circumstance (such as retirement, disability, or remarriage) and thus couples otherwise similarly situated may end up with a longer term of alimony in Cumberland County than they would in one of the surrounding counties.  Generally, alimony orders are tax-deductible to the payor and taxable to the recipient (see taxability of support orders).

While there are no guidelines as to amount or term there are 17 factors as set forth by the legislature that the courts must consider when determining whether alimony should be awarded and in what amount and for how long.  These include the length of the marriage, the income of the parties, the needs of the recipient, whether there are minor children, the time needed for a dependent spouse to obtain reasonable employment, the perquisites or extra employment benefits that one spouse may have (health insurance, pension, expense reimbursement), the tax treatment of any award, etc., etc.  Most of the mandated factors lend some assistance to the courts in determining whether or not to award alimony in the first place but give little assistance in determining the amount or the duration, hence the vast inconsistency in alimony awards.

Spousal Support/APL

Where alimony is a post-divorce remedy, a dependent spouse is also entitled to interim support during the pendency of the divorce action, as well as before any divorce action is commenced but after the couple separates.  Interim support can take the form of either “spousal support” or “alimony pendente lite” (“APL” for short).  A dependent spouse can get one or the other but not both; moreover, they are computed in exactly the same way.  The difference between spousal support and APL is procedural in nature and sometimes there are tactical reasons to seek one rather than the other or try to defend against one but not defend against the other.  Such tactical decisions are beyond the scope of this article.

Where post-divorce alimony has no guidelines for amount or term, interim support is for a set term (it generally ends at the time of the divorce decree or the divorce agreement).  The amount of interim of support is very rigidly determined by a mandated formula.  The formula is based upon the net monthly incomes of the parties.  The formula itself is simple: the dependent spouse gets 40% of the difference in the parties’ net incomes, or, if there are minor children, 30% of the difference in net incomes after subtracting the child support from the payor’s income.  There are factors that permit the court to deviate from this formula, but deviation is quite rare.  While the rigidity of this approach can be harsh in some cases, it does allow the parties and their lawyers to very quickly determine what the depended spouse is likely to get or the independent spouse is likely to pay.  The existence of the child support guidelines and the formula for interim spousal support/APL has greatly reduced litigation in these areas.

However, as in child support, the most difficult issue is often in determining the income of the payor spouse.  This is easy to determine when the payor has a salaried job but can be quite difficult when the payor owns a business.

September 18, 2012
Posted by HKHLaw

If child custody is one of the most difficult issues for a family and their attorneys to deal with, an even more difficult subset is custody relocation.  When one parent wants to move away with the children and the other parent does not consent, the party desiring to move must seek court permission.  Pennsylvania has recently enacted a comprehensive custody relocation statute which provides lawyers and courts with more specific guidance in these difficult cases than previously existed.  The “best interest” of the children is still the overarching standard.   The courts look at the benefit of the move to the moving parent and the children, the purity of the motives for the move as well as the motives opposing the move, and the ability for reasonable substitute partial custody for the non-moving parent.  For example, if a father previously had alternate weekends during the school year and every other week during the summer a court might determine that reasonable substitute contact might be giving father most of the school holidays during the academic year and perhaps a couple other long weekends and then perhaps the vast majority of the summer school recess.  Transportation issues alone provide a major area of dispute given the cost of air travel, the proximity of airports, the age of the children (are they able to fly unaccompanied), etc.

September 16, 2012
Posted by HKHLaw

When the courts determine the equitable distribution of property the court must first identify what property is marital property, and thus divisible in a divorce case, and what property is separate property and thus not divisible.  While one spouse may not be awarded the other spouse’s separate property, the existence of a large amount of separate property owned by one spouse is a factor to be considered in determining the amount of marital property that is awarded to the other spouse.

Marital property is generally defined as all property acquired during the course of the marriage (i.e., from the date of marriage until the date of separation) regardless of how the property is titled.  Thus, assets that are always or usually titled only in one name (such as pensions, stock options, life insurance policies), if acquired during the marriage are nevertheless marital property.  Other types of marital assets are frequently held in joint names such as the marital residence, other real estate, bank accounts, investment accounts, etc.  However, regardless of title, the general rule is that if the asset was acquired during the marriage it is marital property.  Moreover, marital property also can include the increase in value in a person’s separate property.

Separate property is property that one party had before the marriage or property inherited by that party or property that was gifted by a third person (not the spouse) to that party and that property remains in his or her own name.  If one spouse owns separate property and then puts it in the joint names of both parties, generally (but not always) the law presumes that this was a gift to both parties and thus it becomes marital property.  The value of separate property at the date of marriage (or the value at the time of the subsequent gift or inheritance) remains the separate property of the titled spouse BUT the increase in that value, from the date of marriage (or the subsequent date of the gift or inheritance) and until the date of separation, IS marital property.  For example, if the wife owned $10,000 in Apple stock and at the time of separation that stock had increased to $40,000, $10,000 would be the wife’s separate and non-divisible property, and the $30,000 increase would be divisible marital property.  Pennsylvania draws no distinction between active appreciation (such as where it is the couple’s labor that caused the value of husband’s separate business to increase) and passive appreciation (when the growth occurs purely by the operation of market forces and has nothing to do with anything that the parties themselves may have done such as where shares of stock increase in value); all appreciation in Pennsylvania is marital property.  As discussed separately, the parties can exclude appreciation in separate property by means of a prenuptial agreement or a mid-nuptial agreement.

September 15, 2012
Posted by HKHLaw

When parties cannot agree upon a custody schedule one parent will initiate a custody lawsuit.  Once such a suit is initiated the court orders a custody conciliation conference, usually held within 3 or 4 weeks, before a conference officer who is a lawyer.  These conferences last about an hour, are generally pretty informal, and are not recorded; however, the custody conciliator does keep notes of what happened.  If an agreement is reached at the conference then an order is entered by the court setting forth the terms of that agreement.

If an agreement is not reached the conciliator usually enters an interim order and sets a date for a hearing before a judge and may make other interim directives such as the requirement that the parties and the children participate in a custody evaluation by a psychologist or psychiatrist.  Such evaluations are quite common and are relied upon by the courts in reaching decisions involving the best interests of the children.

Generally speaking, custody litigation is the area of family law that is most disliked by family lawyers and by family court judges.  It is frequently contentious, bitter and outrageously expensive.  Moreover, the emotional trauma, to say nothing of the monetary expense, can be devastating to the parents and the children.  Custody litigation should generally be avoided if at all possible.  There are a variety of alternative dispute resolution mechanisms available which should at least be considered before resorting to actual litigation.

Sometimes however litigation is unavoidable when the parents’ views concerning what is in the children’s best interests are so far apart from each other that they are simply unable to reach agreement.  In these situations a judge, the person who knows the family less well than the parents themselves, than the lawyers, or than the psychological experts, will ultimately decide how and when the parents see their children.

September 14, 2012
Posted by HKHLaw

Pennsylvania recognizes two types of custody of minor children: legal custody and physical custody.

Legal custody is the right to make major decisions concerning the health, education and welfare of the child.  Shared legal custody, which is by far the norm in Pennsylvania, means that both parties share that legal right.  Because there are only two parents, deadlocks can occur.  Both parents must agree if there is to be a change in schools, the child is to be seen by a new doctor or mental health provider, the child needs elective surgery.  When parties cannot agree the courts are left to decide whether the proposed change is reasonable or the opposition to the change is reasonable.  In those rare instances when one parent is constantly objecting to reasonable requests involving a child’s health, education or general welfare, or is constantly ignoring the other parent’s shared legal custody rights, the courts may award sole legal custody to the other parent.

Sole legal custody is very difficult to obtain in Pennsylvania but when it is awarded to one parent, that parent then has the sole authority to make schooling, religious, and physical and mental health decisions for the child.  Remember that legal custody, whether shared or sole, has nothing to do with physical custody.

Physical custody, as the term implies, is the right to have physical control over the child; essentially, to decide what the child does and where the child sleeps.  Again, the norm is shared physical custody.  This does not necessarily mean equally shared.  Parents can share physical custody on any schedule upon which they can agree.  This may mean that dad has the kids on alternate weekends from Friday night to Sunday morning and every Wednesday night overnight and mom has the kids the rest of the time or any other schedule the parties agree upon or the court orders.  Equally shared custody is when the parties each have the kids close to 50% of the time.  Pennsylvania uses overnights to determine this.  If mom and dad each have 7 overnights in a 14-day period then they equally share physical custody.  The most common types of equal physical custody are week-on/week-off with the non-custodial parent typically having one overnight during the other parent’s week; or a schedule where one parent has every Monday and Tuesday night, the other parent has every Wednesday and Thursday night, and the parties alternate 3-day weekends.  This is sometimes referred to as a 5-2-2-5 schedule because in 14-day period each parent has 5 days on , 2 days off, 2 days on, and 5 days off.  Custody is determined by a custody agreement or by a custody law suit.

September 12, 2012
Posted by HKHLaw
During the course of the divorce proceeding it is quite frequent that the parties may enter into a variety of interim agreements often for the purpose of avoiding anticipated problems or resolving interim issues that would otherwise be litigated.  These agreements can include the following:
  • Exclusive Possession of the Marital Residence: Where one party is allowed to use the marital residence and the other party is not permitted to enter the residence except upon limited and very specifically set forth terms.
  • Advance Distribution: Parties frequently agree on an interim or advance distribution of assets, often for the purpose of providing funds for attorneys’ fees, expert witnesses, the down payment on a car or a home, etc., etc.  These advance distributions are intended to be accounted for and recognized when the parties ultimately reach a final settlement or when they go to court to have the court determine what will be the final distribution of assets.
  • Freezing of Assets: Where there is a risk that one party may dissipate an asset or attempt to remove it beyond the control of the court, the other party can ask the court to freeze that asset or a group of assets.  This might arise when a spouse has cleaned out a joint bank account, or has threatened to do so, or where a party may have significant accounts in that party’s own name, or when a party has the ability to borrow against or liquidate a pension account, etc., etc.  The threat of or actual initiation of litigation to prevent further dissipation or to freeze funds inappropriately removed, frequently results in the parties reaching an agreement to freeze those assets or proceeds.  Such agreements are often entered as stipulated (or “agreed upon”) orders.
September 11, 2012
Posted by HKHLaw

The most common type of agreement in a divorce case is a post-nuptial agreement, frequently referred to as a Marital Settlement Agreement (“MSA”) or a property settlement agreement (“PSA”).  Such agreements are entered into when the parties have reached an overall comprehensive agreement and frequently include custody and child support terms as well.  MSA’s are intended to evidence the terms of the parties agreements on distribution of property, use or sale of the marital residence, the filing of future tax returns, the disposition of past tax refunds, alimony or interim support, how and when pensions will be divided, and any number of other issues that may have arisen in the course of the divorce proceedings.

As in other settlement type agreements (such as prenups and midnups) these agreements require clarity in drafting and full and fair disclosure.