BENNETT & ASSOCIATES
Family Law - Considering a Divorce
1. How can I protect myself against digital spying in my divorce case?
If you think that your spouse knows more than they ought to know, here are some simple steps to take to protect your privacy:
a. E-mail: Create a new email account and password that your spouse does not know about, from a computer that your spouse does not have access to. Use only that email and password to communicate with your lawyer. Do not do so from your home computer, if your spouse still has access to the computer.
b. Cell Phone: Contact your cell phone provider to see whether any location services were added to your plan. If your spouse had access to your phone at any time slightly prior to the divorce action, he or she could very easily have installed a GPS tracking device on your phone in a matter of minutes. You may notice that your phone becomes slower. It is also possible for someone else to listen to your conversations using some of the spyware that’s now available. The best solution is to get a new cell phone in your own name and control what’s put on the phone. Make sure your spouse does not have access to this phone.
c. Car: If you’re concerned about your car, you can take it to your local police station and have the them check it to see whether any GPS tracking devices have been installed. You could also use a mechanic or private investigator who is well versed in these issues.
d. Computer: Check the back of your PC to see whether there are any KeyKatchers in any of the USB ports. You can also run anti-spyware programs to see whether any have been installed on your computer.
2. What should a party do prior to separating from their spouse?
Prior to any separation, a party should copy important documents and consult with an attorney. A separation can significantly impact child custody, spousal support, child support and other family law matters. Most importantly is the identification of assets to be included in the marital estate because these assets will be affected by the date of separation. For instance, money or assets received after the date of separation, or before marriage, up to the date of marriage, will not be included in the marital estate. However, the appreciation on pre-marital assets will be included in the marital estate.
3. Can I live at the same address as my spouse and still file for divorce?
Yes. A husband and wife can be separated as a couple and continue to live under the same roof. Separation, for legal purposes, means that one souse conveys the intent to the other that he or she no longer desires to remain married, no longer shares the same bedroom, no longer has a physical relationship and communicates to the world that the relationship is over.
4. Can the parties date other people while going through the divorce process?
Yes. Nothing in Pennsylvania law prohibits the parties from dating during the divorce process. Although cohabitation may impair one's right to spousal support. "In your face" dating may make solving problems more difficult as it may provoke irrational emotions.
5. When can a person remarry after the divorce decree is obtained?
6. If a spouse is in prison, can a divorce still be granted?
Yes. The process is more complex because it would be more difficult to obtain the required signatures for the documents that would be filed.
7. Should I have a will?
Yes. If you do not have a will, you should have a will drafted and executed. If you have a Will for you and your spouse, both of you should draft new, separate wills.
8. How do you pick your divorce lawyer?
The client is the customer, charged with the responsibility for choosing a divorce lawyer. The quality of the lawyer's undergraduate and law school education, their participation in law review, and any awards are relevant. It is a good idea to look at their years of experience and who supervises them, if they are young. Most lawyers have fairly extensive bios on their web pages which detail articles they have published and continuing legal education provided to other lawyers. Being prepared for the initial consultation will improve the attorney's ability to give reliable advice and indicate what a court would order as well as ball park support to be paid or received. My firm's web page has an excel spread sheet that can be downloaded by anyone to enter assets and liabilities and start a preliminary distribution of assets based on each individual's circumstances. We also provide budget forms that anyone can complete for themself or their spouse. The initial consultation should be the most useful hour spent. Take advantage of it even if one feels broadsided or adrift because of the loss being experienced. Meeting with at least two different lawyers is a good idea; chemistry is important, follow your gut. First and foremost, finding a smart efficient professional who is accountable to the clients' needs is of primary importance.
9. What process do you want?
There is traditional negotiation, litigation, the collaborative method and mediation or a combination of the above. Find out if your attorney uses a private arbitrator, when appropriate. Are they certified and have they had adequate training in collaboration or mediation? For cases that require court intervention, ask how frequently the attorney goes to court. If it is frequently, they will know their way around your county courthouse, but it will make them less accessible for phone calls. Mediation takes place primarily with one supposedly neutral individual while collaboration provides the full protection and comfort of an advocate and advisor for each side. Collaborative attorneys work together to provide the parties with an out of court settlement.
10. How do you keep your costs down?
Be attentive to all matters relating to billing. Clients should receive a retainer letter setting forth the terms of engagement, billing rates of all relevant staff, and the amount of the retainer. The retainer should be refundable, if not used. Itemized invoices should be received monthly even if the retainer has not been fully exhausted. Asking questions about your bill, asking for an associate with a cheaper rate to work on your matter, and requesting an adjustment for gross inefficiencies are ways to limit the cost. Generally, the total cost has to do with the client and their spouse's ability to cooperate. The more adversarial the case, the higher the cost. Clients should weigh the value of phone calls and interactions with their attorney, and rely on other professionals where possible, as each interaction effects the total legal expense.
Family Law - Domestic Violence
1. What should I do if I am the victim of domestic violence?
If you are the victim of spousal abuse, you should immediately contact your local police department and file a police report. The police will be able to provide you with instructions on how to obtain an Emergency Protection from Abuse (PFA) Order. You may also wish to consult with a domestic abuse shelter or crisis hotline in your county. Their numbers can be found in the Yellow Pages of your telephone directory.
Family Law - Pennsylvania
1. Do I have to live in Pennsylvania to obtain a Pennsylvania divorce?
Maybe. You or your spouse must have a bona fide residence in Pennsylvania. This means that you must have a residence in Pennsylvania with the intent to reside in Pennsylvania for at least six months just prior to filing for divorce. If one party lives in Pennsylvania, the other party can live anywhere else.
2. Does my divorce have to be filed in the county where my spouse or I live?
No. Pennsylvania law does not require that a divorce be filed in any specific county.
3. Can I live at the same address as my spouse and still file for divorce?
Yes. A husband and wife can be separated as a couple and continue to live under the same roof. Although there is no legal separation in Pennsylvania, separation for legal purposes, will automatically be deemed to occur when a complaint in divorce is filed.
Family Law - Terms
1. What is a legal separation?
Technically, there is no such thing as a "legal separation" in Pennsylvania. Separation for divorce purposes means that one spouse conveys the intent to the other that he or she no longer desires to remain married. That intent may be conveyed in a number of ways including by filing a divorce complaint or by one spouse vacating the marital residence without an intent to return. In some circumstances, parties can be separated while residing in the same household. The date of separation is relevant to the definition of marital property and commencement of the two year separation period necessary for a unilateral no fault divorce.
Family Law - Divorce Process
1. What should I do if served with a divorce complaint?
If you are served with a divorce complaint, you should immediately contact a divorce attorney. If you do not respond to the divorce complaint, a divorce decree may be entered even without your consent and your legal rights including the right to support or division of marital assets and debts may be waived.
2. Can either spouse prevent the entry of a divorce decree?
In some situations, the spouse that does not consent to the entry of a divorce decree can stall the entry of the decree for up to two years from the date of separation of the parties. However, after the expiration of two years from the date of separation, either spouse can proceed to obtain the divorce decree.
3. Must fault be proven to obtain a divorce?
No. Since 1980 Pennsylvania has adopted no-fault grounds for divorce. In most cases, fault based grounds, even if they exist, are not pursued.
4. Can the court require counseling?
Yes. The court may require up to three counseling sessions with a qualified counselor within a three to four month period in the following cases:
- the fault-based ground of indignities is used as grounds for the divorce and counseling is requested by either person;
- the no-fault ground is used and counseling is requested by either person; or
- in certain cases, where there are children of the marriage under sixteen years old.
5. How long will the divorce take?
A mutual consent, no-fault divorce may take up to six months to complete depending on how long it takes to get the complaint served on your spouse and the backlog of cases at the court. The main cause for any delay is that, by law, we have to wait out a 90 day "cooling-off" period after the complaint is filed before the process can be finalized. The divorce is not automatically granted after the 90 days. Additional paperwork must be prepared after that period to complete the divorce process and obtain a decree. It will take even longer if the parties delay further by not signing affidavits of consent.
6. Do both spouses have to sign papers for the divorce to be granted?
It depends on the type of divorce. In any type of divorce, the spouse must sign for their certified mail to prove to the court that they were served with a complaint. In a mutual consent divorce, both parties must sign papers after the 90 day waiting period and they are filed with the court. In a "separation" no-fault divorce, the responding spouse does not need to sign anything after the certified mail is received by him or her if they agree to the two year separation.
7. Is a divorce published in the newspaper?
No. However, divorces are public information and are available to anyone looking in court records.
8. Can the wife regain the use of her maiden name?
Yes. Once the divorce is granted, papers can be filed and the wife can change her name back to her maiden name.
Family Law - Legal Counsel Questions
1. Can the other party be forced to pay my attorney's fees?
In divorce cases, courts have the power to order one party to pay the other party's attorney's fees. The basis for such cost-shifting is a substantial difference in the income or property that each party has. If both parties have similar earning capacity or if both parties receive ample amounts of liquid assets as part of the divorce, the husband and wife are more likely to pay their fees for their own lawyer.
Another reason for having one party pay the other party's attorney fees is bad faith or contempt by the party from whom fees are sought. If one party does something he or she should not do (such as not paying child support or interfering with other party's access to the child), the party who engaged in misconduct is likely to have to pay the attorney's fees of the other party.
2. Can both parties use the same attorney?
No. An attorney can represent only one party in family law litigation. Sometimes, the parties decide that only one of them will retain an attorney. The attorney then prepares any paperwork or agreements and only gives advice to the party that has retained the attorney's services. The unrepresented party acts at their own peril representing themselves "pro se".
Family Law - Custody
1. What is the relationship between seeing the children and paying support?
The person paying support must comply with the support order even if the custodial parent is not complying with a custody order. If there is a problem with custody, a custody complaint, petition to modify or petition for contempt must be filed to address the custody issue.
Family Law - Dividing Assets
1. What is equitable distribution?
Equitable distribution is the legal term for the division of marital assets and marital debts. Marital assets and debts are those assets or debts acquired from the date of marriage to the date of separation and sometimes, the appreciation on those assets after separation.
Family Law - Support & Alimony
1. How do I obtain support for my children or myself?
A person seeking child support or spousal support must file a support complaint with the court in order to establish a right to collect support (especially through a wage attachment) or negotiate an agreement for support. No enforceable obligation on the other party exists until the complaint is filed or the agreement is signed.
2. Can a credit be given for purchases made by the person paying support?
In most circumstances, no. The support order must be paid in full, and anything additional that is provided directly for the other spouse or children, such as clothing or gifts, will not be credited against the support order. However, in certain circumstances, payment of the mortgage, rent, utilities or other bills for the spouse or children may be credited against the support obligation if provided for in the order or agreement in advance.
3. Can the person receiving support be compelled to produce receipts proving how the support was spent?
No. It is unlikely you will be permitted to see receipts as part of support proceedings. The law presumes that the support is used to help provide all things the spouse and/or child needs. This includes a home, food, clothing, and social activities.
Family Law - Tax Concerns
1. Alimony Payments
If you pay or receive alimony/maintenance, there are tax ramifications. Alimony/maintenance (not child support) is includable in the income of the recipient and thus, is taxable to the recipient if made pursuant to a written agreement or a Court Order. It is deductible from the payor's income. Occasionally, a dispute will arise as to how much alimony was paid/received. Sometimes, the Internal Revenue Service will question the alimony amounts. For that reason, it is very important to keep good records and file reciprocal parallel returns. If you fail to keep adequate records, you may lose the alimony tax deduction. The right to deduct alimony payments will not arise until after the entry of a court order or written agreement for support.
2. If you pay alimony, you should keep the following records for at least three years:
- Original checks. Be sure to show on each check the month the payment represents.
- A list showing the date, check number, amount and address where payment was sent.
- If you give cash, obtain and retain a receipt signed by both the payor and the recipient.
3. If you receive alimony, you should keep the following for at least three years:
- A photocopy of the check or money order received.
- A list showing the date, check number, amount of payment, bank account the funds are drawn on, account number of the check.
- A copy of the signed receipt with signatures of both payor and recipient for any cash payment received.
4. Child Support - is not includable in income and therefore not taxable, nor is it deductible.
5. Filing Status
(i) If you are married, you can file as either "Married Filing Separately" or "Married Filing Jointly."
(ii) Each party must determine the best filing status for their situation during and following a divorce.
(iii) Normally, filing a Married Joint Return results in the lowest taxes. You qualify for this status if you are not yet divorced. You will not be able to file a Married Joint Return for the calendar year in which you are divorced. For this reason many people will put off finalizing their divorce until January of the year following the execution of their Agreement.
You may claim an exemption for a child that does not live with you only if it is stated in your divorce or separation agreement and if a Federal Form 8332 has been signed. This does not apply if you and your spouse are filing a Married Joint Return.
Under certain circumstances, the amount of your legal and accounting fees related to tax advice which can be attributed to the production of spousal income (not child support) may be tax deductible.
8. Child Care Credit
You may be able to take this credit if you have a child under the age of 13 and you paid for someone to care for your child.
9. Child Tax Credit
This credit is in addition to the childcare credit and the earned income credit. With this credit you can get a refund even if you do not owe any tax. The credit can be up to $600 per child. According to the IRS, a qualifying child for the purposes of the child tax credit is a child who:
- is claimed as your dependent; and
- was under age 17 at the end of the tax year; and
- is your son, daughter, adopted child, stepchild, grandchild or foster child; and
- is a U.S. citizen or resident alien.
10. Income Tax Evasion by Spouse
If your spouse knowingly cheated on your joint tax return to evade taxes, you might not be held responsible. If you are divorced, legally separated or have been living apart from your spouse for at least 12 months, and you were completely unaware that your spouse lied on your joint tax return, you can file papers that would compute your tax liability separately. If you have been audited and you believe this rule applies to you, contact a tax specialist who has experience with this type of matter. You may qualify as an innocent spouse and escape criminal penalties on federal taxes. See Form 8857 which can be found at www.irs.gov/formspubs.
11. You should obtain information on the tax issues you will encounter before, during and after your divorce. A few items to consider are: learning how to negotiate your settlement to help save you tax dollars; how does the IRS define custodial parent; and special rules for separated or divorced spouses; and information regarding property transfers.