Be prepared for a divorce

Thinking about divorce? Make sure you’re prepared!

Here are some of the most important things for you to think about before meeting with an attorney, and a checklist to prepare before filing for a divorce, to ensure that you are set up for success and to avoid some of the most common pitfalls.

• Take a look at your finances and be prepared. Don’t walk into a divorce blind. Get a copy of your credit report, determine what you own and what is owned by your spouse. Know about all debts, and who owns what. You will then have a solid foundation to stand on as you enter into all divorce negotiations. However, be careful. You don’t want to overstep legal boundaries. For example, it is against federal law to request your spouse’s credit report without their consent.

• Get documentation to prove your income. In your divorce, you are going to need show an accurate snapshot of your income to decide financial issues – such as alimony and child support. This could be as easy as getting copies of your recent pay stubs and your income tax return. In other cases, it may be more difficult; for example, the self-employed may need bank account statements.

• Figure out what your spouse earns annually. This can be a little difficult without their cooperation, but it is important to know what your spouse’s income is. Work to get copies of their W2, pay stubs and the like – as well as knowing about bonuses and other fringe benefits. Knowing what their salary is on paper is important, but so is knowing who is responsible for health insurance, 401(k) accounts and other retirement accounts. Get as much information as possible for your attorney.

• Have a clear budget for life after divorce. Sit down and map out what your life will be like after your divorce is final. Knowing what you are going to have to pay and how much you are going to need will be a serious help should you enter into a divorce. Having this will allow you to better negotiate as you won’t be fighting for an unclear number, but will know exactly what you need and why.

• Start building your own credit. By closing all joint accounts and opening separate ones, you can start building your own credit. In many cases, credit was gained jointly and after the divorce, people can begin themselves starting from the bottom. Avoid this by getting a head start. Get your own credit card and making smart financial decisions with it to start building credit slowly and surely.

• Do everything you can to decrease your debt. If you and your spouse have debt, remember that this is only going to get worse as you enter into divorce. This can be a costly procedure and you do not want to do anything else that will cause financial strain. Start working on your debt. Work with your ex-spouse if possible to delegate debts and pay it off before filing.

• Make immediate changes to your will. It is not unlikely that you have named your ex-spouse in your will. Work with an attorney to ensure that the document is adapted to your current situation. Update it to reflect your present situation. You can change it at anytime, but why wait? Make sure that your estate is in order to prevent post-mortem lawsuits.

• Go through and make copies of all important documentation. Having copies of important documents can be crucial during the divorce process. This will include tax returns, bank statements, life insurance policies, mortgage documents, real estate appraisals, automobile titles, wills, investment statements, credit card statements and the like. Work with your spouse to have the clearest idea of the family finances if possible – keep records of everything.

 And most importantly,

          Always put the needs of your child(ren) first. Divorce is never simple, but remember that this is going to be much more difficult for your child(ren) than it is for you. Do everything that you can to put their need s first. Make sure you sit down with them to discuss everything that is going on. Make it clear that they are not the cause and that they are still loved. Do as much as you can to keep their routine normal and stay involved in their lives. Do not fight in front of them and drag them into the divorce. Maintain a healthy, loving environment to protect them against the worst of the divorce.

Are bogus Protection from Abuse claims really a "Jerry Springer" divorce?


BLOGGER'S NOTE: ORIGINALLY PUBLISHED IN THE PITTSBURGH POST-GAZETTE, THIS OPINION PIECE AUTHORED BY ALLEGHENY COUNTY ATTORNEY TODD SPIVAK QUOTES ONE JUDGE WHO DESCRIBES UNFOUNDED PROTECTION FROM ABUSE CLAIMS AS "POOR MAN'S CUSTODY" CASES. THE ORIGINAL HEADLINE WAS "IMPROVE PENNSYLVANIA'S DOMESTIC-ABUSE LAW."

 

By Todd Spivak

Pennsylvania's Protection From Abuse Act was hailed nationwide when it was enacted as a progressive law providing crucial protections for victims of domestic violence. It enabled courts to issue emergency no-contact orders at a time when filing criminal charges was the only legal recourse for victims of abuse. It also featured a provision that remains controversial to this day: Courts could temporarily evict defendants from their homes based solely on a plaintiff's accusations of abuse.

"There is no way we are going to correct spouse abuse in Pennsylvania until we get the abuser out of the house," said then-Sen. Robert Jubelirer, R-Blair, during a contentious floor debate in June 1976 that preceded the law's passage.

But detractors warned that the PFA law itself would be subject to abuse.

"I know this is a great day for equal rights and all that jive," countered then-Sen. William Duffield, a Democrat whose legislative district included parts of Westmoreland County. Dripping with chauvinism, he referred to cases of domestic violence as "so-called emergencies," threatened to "name names" of cheating wives and lamented that now "women are supposed to be equal with the husbands."

Mr. Duffield cast the lone "nay" vote against the PFA law, concluding: "I do not think there is that much of a need for it. It would open up a Pandora's box to every family squabble."

Today, nobody doubts the need for Pennsylvania's PFA law. National statistics show that one in four women experience domestic violence, which is the leading cause of injury to women ages 15 to 44.

In 2011, there were 166 domestic violence fatalities in Pennsylvania, including 13 in Allegheny County. More than 40,000 PFA petitions were filed statewide, including some 3,200 in Allegheny County.

But family law judges, attorneys and advocates still grapple with whether the PFA law strikes the right balance to protect victims while also limiting false claims of abuse.

People frequently misuse PFAs to harass, to get someone evicted or to gain leverage in a divorce or child custody case. "Want somebody out of the house? File a bogus PFA!" Allegheny County Court of Common Pleas Judge Kim D. Eaton told me.

The PFA system is often derided as "poor man's custody," Judge Eaton says, because it allows people to obtain child custody orders while circumventing the formal custody process and associated court fees.

There is no fee for filing a PFA, and nearly all PFAs are granted at least on a temporary basis because courts prefer to err on the side of protecting domestic-violence victims.

In 2011, judges in Allegheny County approved 97 percent of all initial PFA petitions. In about 60 percent of the cases, the plaintiff either withdrew the petition or failed to appear at the evidentiary hearing 10 days later.

But this does not necessarily indicate misuse of the PFA system, says Ellen Kramer, legal director of Pennsylvania Coalition Against Domestic Violence. On average, it takes seven attempts for a victim of domestic violence to leave an abuser, she says.

The PFA law has been amended many times to increase protections for domestic-violence victims. For instance, amendments increased the maximum duration of a PFA to three years, expanded the definition of abuse to include stalking and harassment, and implemented a statewide database of all PFA proceedings operated by state police.

The PFA law does state that a person who files a PFA "in bad faith" must pay the defendant's attorney fees and can be criminally prosecuted, though this almost never happens. Proving bad faith is impossible in most cases because of the "he-said, she-said" nature of domestic violence.

In Allegheny County, PFA plaintiffs are entitled to free attorneys who help file the petition and represent them at the hearing. But more than two-thirds of PFA defendants receive no legal representation because they cannot afford an attorney or do not appreciate the severe consequences of a PFA.

A PFA is a public record that can haunt people like a criminal conviction. It can spoil job prospects for teachers, police officers, day care workers and others subject to background checks and abuse clearances. It can impede a person's constitutional right to own guns. Though it is a civil order, violating any provision of a PFA can result in a six-month jail sentence and a $1,000 fine.

"Many defendants blindly agree to a PFA to get out of court; then they apply for a job and can't get it," says Christine Gale, a family law attorney in Pittsburgh for 31 years.

Here are five common-sense ways to curb abuses under Pennsylvania's PFA law:

� There should be a discussion or other means of ensuring that PFA defendants understand the consequences of accepting a final PFA. It could be as simple as checking boxes on a standard form.

� Courts should make it easier to allow defendants to recover attorney fees when a PFA is withdrawn or dismissed.

� District attorneys should criminally prosecute what Judge Eaton calls "serial filers" of bogus PFAs.

� Law schools and legal aid clinics should partner to train students to provide free representation for low-income PFA defendants as well as plaintiffs.

� Temporary PFAs should be removed from the public database when a PFA is later withdrawn or dismissed.

 

Grandparent rights not dependent upon adult children's marriage

One scenario in which a grandparent may establish the legal right to pursue visitation or custody of a grandchild is when the parents of the child are divorced, or have been separated for at least six months.  In a common-sense decision, the Superior Court of Pennsylvania has ruled that a "separation" may exist when the parents have never been married.  So a grandparent may go to court to obtain rights to have a relationship with a child born "out of wedlock" to unmarried parents so long as the parents are not living together. The case is L.A.L. v. V.D., 2013 PA Super 212 (2013).

Child custody contempt may not bring change

A new ruling by the Superior Court of Pennsylvania warns parents that simply bringing a "contempt" petition against the other parent does not entitle them, or the court, to seek a change in the terms and conditions of the existing child custody order.

Instead, the new petition must request not only that the offending parent be held in contempt, but also that the custody arrangement be changed or "modified" to avoid future problems.

 Understandably, many litigants assume that if a judge finds the other parent in contempt for non-compliance with a court-ordered custody arrangement, that the judge will levy "sanctions" or punish the parent for being in contempt.

But the new court ruling makes clear that such sanctions may not include a change in child custody.

Last month the Superior Court ruled in P.H.D. v. R.R.D., 2012 PA Super 246, in which Mother asked that Father be held in contempt for attending a child's school band concert. Father was restricted to "supervised visits" with the child. The existing order banned Father from any other "contact" with the child. Nevertheless the Father attended the school performance and sat in the front row, waving to his child. In his defense, Father explained to the judge he thought "no contact" meant "no talking."

Although the judge dismissed the contempt petition, and ruled that Father was not in contempt, the judge "modified" the order to impose more severe and restrictive conditions on Father. For example, the judge changed the existing order to now include a total ban on Father ever appearing at any place where the child could reasonably expected to be present. The judge said he made these changes to "clarify" the existing order's no-contact provision.

The Superior Court said the judge was wrong to impose these changes in the custody order without Mother having first filed a Petition To Modify the current arrangement. The judge violated Father's due process rights of being aware of, and preparing for, the likelihood that he could lose custody privileges at the contempt hearing.

The appeals court stated that Father's due process rights were violated regardless of whether Father had been held in contempt. Thus, contempt sanctions may not include a change in custodial rights, without a request for modification being presented to the court as well.

It's an easy task -- and common sense -- to include in a petition for contempt a formal request for modification as well, along with a proposed remedy or change in custody that reflects an appropriate punishment for the poor behavior, or change which would ensure the offending parent would not have an opportunity to repeat the contempt.  Simply asking for "appropriate sanctions" in a contempt petition falls short.   

"Do You Offer Free Consultations?"

Most of the blog entries you'll read here are based on facts and legal doctrines. This article, however, is entirely my opinion.
When someone begins thinking about their Family Law issues, or when a problem is thrust upon them, their first step usually is to perform research and seek advice. Browsing the internet and speaking to family and friends can only help so much. Sooner or later, it's time to speak to an attorney.
Often, it seems to make sense to take advantage of a lawyer's "free initial consultation." There's no obligation and all you will spend is your time. But in my opinion, you will get what you pay for.
Too many free consultations are simply opportunities for a lawyer to sell you their services. The "initial" consultation often will not provide any substantial benefits to the individual. Rather, the appointment will become a marketing tool for the lawyer to try and sign you as a client.
A lawyer who gives a legitimate consultation of any substance should spend an hour or longer with you to learn and listen to your story, and patiently explain your rights, the options available to protect those rights, the legal process you should expect, and how much money and emotional investment each of those options will cost you.
But instead of getting legal advice, which they expect, many individuals who seek free consultations receive a sales pitch. And instead of providing unbiased or impartial advice, many lawyers who give free consultations promise impossible results or candy-coat your situation in order to earn your confidence.
Most attorneys believe the first hour they spend with a client should be the most important and valuable time in the relationship. A lawyer who is giving away his or her time is not likely to respect or endorse this belief. It borders on being unethical to mislead people by representing a sales appointment as a free consultation.
I appreciate that you face a personal crisis. Maybe you've never had to hire a lawyer and don't know how. You're afraid of making a big mistake. You think a free consultation is a safe first step.
My position is to offer a middle ground. I do not meet prospective clients for free, but I offer a flat fee that equates to a reduced hourly rate for initial consultations. My consultations take as long as necessary. We stop when you have no more questions. When I charge someone a flat fee for an hour or two of my time, we have begun a professional relationship. As a result, you are entitled to the best consultation possible and deserve my best effort in addressing your concerns and your situation. 
Aside from the professional and ethical reasons I have for charging a moderate fee for initial consultations, there are practical business considerations.
I have found that many people who make free appointments simply fail to show up, probably because they place so little value on my time. I end up wasting time preparing and waiting for no-shows.
In addition, I have many current clients who need and expect their legal work done immediately. They want their phone calls returned today. I must focus my attention on my paying clients. There are only so many hours in a day and I'm too busy to give away my time.

Home mortgage often complicates Divorce

Reprinted from The Morning Call:

Splitting Up

With home values sliding and financing tight, selling a home during a divorce is tricky.

August 26, 2011

 

By Eloise DeHaan • Special to The Morning Call

 

Besides being a difficult matter emotionally, divorce is also a business transaction, that of splitting the assets that have accumulated during a life together and arranging for a new life going forward. And within that process is a new difficulty: the family home, the biggest asset to be split in a divorce, is not worth what it was five years ago.

 

In many cases, the house is worth less on the market than what is owed on the mortgage and home equity loans.

 

 “Houses are underwater. Instead of allocating assets we allocate debt,” says Robert L. Sharpe Jr., an attorney in Lower Macungie Township.

 

More than 40 percent of her divorce clients have homes that carry more debt than can be raised in a sale, says Nancy Wallitsch, an attorney with Wallitsch and Iacobelli, LLP, of Allentown. It’s important, because the first decision that follows the filing of a divorce action is what happens to ownership of the house.

 

“Some people simply can’t get divorced right now,” Sharpe says. “No one wants to take a hit.”

 

Indeed, divorces have been falling. The divorce rate in Pennsylvania was 2.7 divorces per 1,000 in population in 2009, according to the Centers for Disease Control and Prevention, down from 2.9 per 1,000 in population two years earlier, just before the recession kicked into high gear.

 

For the Lehigh Valley’s population of nearly 650,000, the 2009 figure, the most recent available, works out to 1,800 divorces that year. Also in that year, 5,723 homes were sold in the Lehigh Valley, according to an Internet posting by the large local real estate agency, Prudential Patt, White Real Estate.

 

A decision must be made. One party can stay in the house, or both can move out. Ask, who can afford the house? The spouse who retains the property will need to be able to get a new mortgage loan, based on his or her income and assets.

 

It’s important that the deed and the mortgage be in one name only, the attorneys say. That way the party who is leaving has a credit record that is free of the debt. Additionally he or she can’t run up new debt using the house as collateral. And if there’s an accident, say a guest trips on the stairs and breaks an ankle, it’s clear who bears the liability.

 

There’s a bright spot. “If you are in a position to buy out the other spouse, you’re buying low,” Sharpe says, so the outlay is less than it would have been a few short years ago. But if both the husband and wife move out, putting the house on the market, today’s reality means a quick sale might not be forthcoming.

 

That’s when the basics of home selling come into play. “Proper pricing is always the key to any sale,” says Lori Campbell, an associate broker with the Coldwell Banker Heritage Real Estate office in Bethlehem Township.

 

Using today’s technology – a nice collection of photos on the Multiple Listing Service online, e-mail alerts, Facebook and Twitter – to give the greatest amount of exposure is another important factor, she says. And make sure the property is as pristine as possible. To generate interest, make sure that not only buyers, but other real estate agents, too, are familiar with the property’s strong points.

 

“Buyers will be attracted by condition and price and agents will be attracted by those items as well as commission offered, bonuses, and so on,” Campbell says. Should you let buyers know the house must be sold as part of a divorce settlement? Probably not. Of course, if only ladies’ clothes hang in the closet, or half the furniture is missing, buyers will probably catch on, Campbell says.

 

Separated husbands and wives usually interview prospective real estate agents separately, but agree on one agent to handle the sale, she adds. It’s important to hire an agent who has experience in negotiating and navigating today’s mortgage processes.

 

One of those processes is selling a house that’s under water; tough decisions have to be made. If the bank is willing – and more are these days – a short sale is an option. In a short sale, the home is sold for less than what is owed, the bank loses money, and the sellers get nothing except a bad mark on their credit history. But at least they don’t owe anything. And foreclosure – when the lender takes over ownership because mortgage payments have not been made – before, during or after a divorce can really complicate matters.

 

In July, one in every 928 homes in Lehigh and Northampton counties was in some stage of foreclosure, a rate that was higher than the state average, according to RealtyTrac, an Internet giant that tracks such things. And while foreclosure activity nationwide has been dropping, the six-month trend in Pennsylvania is rising, even though, as Wallitsch says, it’s not making news. “The press has gone away but the crisis remains.”

 

Even if there’s equity in the home, to be split according to the agreement made between warring parties, selling a home during a divorce is a challenge for the sellers. “Emotions are flying, they’re barricaded behind their lines and throwing bombs at each other, but they need to make a joint business decision,” Wallitsch says.

 

Many variables, such as proposed closing date, price, terms, what appliances will be included in the sale and so on, need to be decided. For example, if children are involved, a seller may make a concession on price or terms in exchange for a closing date that accommodates a school schedule.

 

Open communication is the key, Campbell says. “When I am involved in the sale of a property where the parties are getting divorced, I make it my policy to communicate openly with both parties via e-mail or phone,” she says. “If both parties feel they are being treated fairly and trust their agent, a successful sale should follow.”

Shouldn't My Husband Pay My Legal Fees?

When does a Husband have to pay his Wife's legal fees in a divorce?

Not very often.

Although the rules of law set forth in Pennsylvania's Divorce Code are supposed to ensure a "fair fight" between divorcing spouses, more often than not, it's the wife who faces the greatest challenge in financing the litigation.

The reality is that a married woman usually has less access to money than the husband. Women often interrupt or delay their working careers to raise families or manage households. That causes a diminished earning capacity, resulting from a relative lack of work experience and employment skills.

So instead of using the politically correct, non-gender specific term "spouse," this blog post will often specifically refer to husbands and wives.

While there exist many two-income families with both spouses holding down responsible, well-paying jobs, there are many more marriages in which the wife has assumed a "subordinate" role in the workplace by being stay at home mothers or by working part-time jobs. Usually this arrangement is done by agreement of both husband and wife. 

In addition, one common characteristic of an unhappy marriage is the "controlling" husband. Without exception, in my experience, this control begins with the money and financial assets.

So how does the law protect a wife whose income or earning power is subordinate to her husband?

Initially, there is "alimony pendente lite," or APL for short, which is spousal support during the divorce litigation. As a rule of thumb, the amount of monthly support to which the subordinate spouse is entitled amounts to 30- to 40-percent of the difference between the incomes (or earning capacity) of the dominate spouse and the subordinate spouse.

APL is an automatic entitlement when someone has filed for divorce. The reason for the automatic entitlement is to help pay the subordinate spouse's legal fees, so as to establish a more level playing field. The challenge for many wives is that APL is supposed to pay not only their lawyers but also for their support and living expenses. Seeking APL is a must.

Beyond APL, another option is for a wife to tap into the marital assets, regardless of whose name in which the assets, property or money are deeded or titled.

A husband can tie up the family money (bank accounts) and assets ( his 401k, or the house he refuses to sell) for years by prolonging or delaying the divorce litigation. But if a wife goes to court and demonstrates her need for money to either support herself or pay her legal fees, she may obtain a premature or partial distribution of these marital assets, or force the sale of a house whose mortgage and upkeep is draining the family's marital estate and money, well before the divorce is finalized.

Expecting a husband to pay a wife's legal fees is a not a practical strategy.

The law does allow a wife to ask her husband to pay her lawyer fees, if there is a significant disparity in their respective incomes and if the wife has prevailed in the litigation. But this is not a common remedy.

For example, the Superior Court recently ordered a husband to pay $3,500.00 of his wife's legal fees (S.M.C. v. W.P.C., 2012 PA Super 92, April 24, 2012).  But in that case, he earned $22,000.00 a month to her $1,200.00 a month. And despite the 20-to-1 difference in income, he still only had to pay half of her $7,000.00 lawyer bill.