Basic Pennsylvania Divorce, Custody and Support Information, 2016

If you are contemplating divorce, it is important that you educate yourself on the topic, and make sound, smart decisions in rational moments and not in heated ones. A range of emotions, including anxiety, guilt, anger, depression, bewilderment or even joy and relief is normal, depending on your situation. However, it is best to not allow these passions to dictate your decisions or your future. Educating yourself on all the issues and making reasoned, rational choices will prove to be the best path – emotionally and economically – for you and for any children.

What this information is - A discussion of basic Pennsylvania divorce, custody and support law, divided up into nine subjects, with a special tenth chapter containing helpful Allegheny County court information. Use this information when speaking with your attorney. Remember that strategies, rules and laws generally have exceptions -- and many of those exceptions have exceptions. So, only you and your attorney can determine your best course of action.

What this information is not - This is not a legal guide for how you should act in your case. Your case will have its own unique set of facts, personalities and strategic considerations. If you can afford a private attorney, you should hire a good one, and pay attention to his or her advice. If you cannot afford a private attorney, you should see if you can get a public attorney. If you cannot obtain a public attorney, you should still try to consult with two or three family lawyers about your case.

Where this information applies - This information is only for the Commonwealth of Pennsylvania. Domestic law is usually an aspect of state law and can differ widely by jurisdiction.

Contents

• Chapter 1 Planning for Divorce
• Chapter 2 Divorce
• Chapter 3 Dividing Assets and Debts
• Chapter 4 Prenups, Postnups and Settlement Agreements
• Chapter 5 Child Support
• Chapter 6 Spousal Support/Alimony Pendente Lite
• Chapter 7 Alimony
• Chapter 8 Custody
• Chapter 9 Protection from Abuse Orders (PFAs)
• Chapter 10 2016 Information on Allegheny County PA Family Court Personnel and Offices

Chapter 1
Planning for Divorce

It looks like you may be getting divorced. What should you do? Here are some generally advisable steps. However, this information is just a start. Because every case is different, consult your attorney on your best course of action before you take these steps. Here are some important steps that will have differing applicability for each party.

Make Lists and Photocopies

Make and gather copies of as much relevant documentation as you can. Only unmarked copies can generally be used as evidence by your attorney. So, either don't mark up the documents or provide a marked-up and clean set of documents.

Here are some typically important documents:

• A. Tax returns - Especially the last three years and all years from your date of separation. Be sure to include all schedules, attachments and related documents. Federal returns are usually the most important but your attorney may ask for state and local returns too. Also include business, inheritance and returns solely from your spouse.
• B. Assets - Including financial assets, real estate, appraisals, retirement assets, loan applications and vehicles. Information relating to values and incomes is important. On the other hand, documentation that does not concern value or income is generally not relevant. Assets acquired (or increased) between the date of marriage and date of separation are generally marital assets, regardless of whether they are owned by you, your spouse or jointly. Documentation from the date of marriage, date of separation and date of major changes is especially important.
• C. Debts - Including credit cards, mortgage balances, and loans. Debts acquired between the date of marriage and date of separation are generally marital whether they are owned by you, your spouse or jointly.
• D. Insurance documents - Especially showing the cash value of insurance and the values of items.
• E. Court papers filed outside your attorney’s home jurisdiction.
• F. Most recent, year-end and (if possible) 6 months’ worth of pay stubs.
• G. Appraisals, loan applications and similar documentation of values.
• H. Your budget, so you know how much you will need to get by.

What Is Not Relevant?

Generally, documentation that does not relate to money, value or finances in some way is not relevant to a Pennsylvania divorce. For example, birth certificates, marriage licenses and passports are generally not necessary. Documentation showing that your spouse was rude to you is not generally relevant. Conversely, documentation showing that your spouse gambled away the family finances is relevant. In both cases, your spouse was being unkind, but in the second case the unkindness involved money.

Does infidelity matter?

People often ask whether documentation of infidelity is important. This is a question for your attorney, but infidelity usually plays no role (or only a minor role) in a divorce. Infidelity is specifically a non-factor in equitable distribution and is only one of many factors in alimony (usually not a major factor).

I Can't Get Documentation. What Should I Do?

Don't panic. Many cases don’t have perfect documentation. Also, your attorney can generally get this documentation through request or "discovery." Because some documentation (especially concerning a closely held business or "under the table" business) may be hidden, massaged or faked, ask your attorney about that.

Starting a New Bank Account

Couples often place their earnings into a joint account. But when getting divorced, it is often easier and "cleaner" to separate accounts. This will allow your attorney to allot the spending to each party. This can help when figuring out who has paid into marital assets since separation, who has paid on marital debts since separation and who is using marital funds for individual or marital purposes. For example, a house purchased after separation entirely from non-marital funds is a non-marital asset. But if marital funds are used in the purchase, those funds remain marital. When accounts are commingled, these questions can become difficult.

Starting a New Retirement Account

Only assets acquired between the date of marriage and the date of separation are marital. So, by starting a new retirement account after separation, you are making it clear that this new account is entirely non-marital and will not be considered in the divorce (unless you used marital funds for the account). Conversely, if you continue to fund a marital retirement account, the post-separation contributions must be separated out and then there may be issues characterizing the appreciation of the entire asset.

Separating Credit Cards

Debts acquired after the date of separation are not deemed marital. Thus, by having separate credit cards, it is clear whose post-separation debts are whose. Moreover, it is a good idea to separate credit card accounts even if it is clear which party is using which card. It is true that post-separation debts are not marital, but credit card companies don't care about divorce law. So, if your spouse rings up large debts on credit cards, you may have problems with your credit or the credit card company, even if the debt will fall on your spouse in the end. It is often a good idea to give notice about transferring funds, closing cards and starting accounts. Ask your attorney about how this is best done in your case.

Staying Liquid

If possible, it is important to keep some assets “liquid” (easily accessible in a checking or money market account, and linked to an ATM card). Divorce can be costly and can have hidden or unexpected costs attached to it. As with other large life choices – a move, or redecorating a home – events can take more time or money than originally expected or estimated. It is prudent to build this understanding into your calculations, strategies, and anticipated outcomes. Available cash is also important for negotiations, settlement and leverage.

A good attorney will always try to resolve matters as economically and amicably as possible. But even if your divorce is resolved amicably and economically, saving money during your divorce will give a kick-start to your new life.

Why Can Divorce Be So Expensive?

There are many factors that contribute to divorce expenses, some include:

• It costs much more to run two households than one. Even if you reside in the same household, it may be more expensive.
• Your tax status may change.
• On top of legal costs, you may have filing fees, expert fees, or court fees.
• Childcare can be expensive.
• Many people elect counseling or psychotherapy during divorce, for themselves or their children.
• Starting new relationships can be expensive.
• Your credit may be threatened.
• You may need to pay support or else pay taxes on support.
• Transportation of children can become expensive.
• Your divorce will take time. Time = money.
• Health insurance after divorce can be expensive.

What are some potential liquidity steps?

• Make a budget and re-make your budget whenever circumstances change. You may be required by the court to make a budget anyway.
• Save what you can. Prioritize cash savings above immediate gratification, new large purchases and even long term investment. Getting efficiently divorced is the best investment you can make during a divorce.
• Put off buying a new house: It can be tempting to start over with a new house but wait until your divorce is finalized. You cannot know your final financial situation beforehand.
• Don't get too emotionally attached to your present house. Don't let it dominate your life.
• Treat yourself (a meal, a small purchase, an hour at a spa) on occasion but not too much. Divorce is tough and it is tempting to over-reward yourself at times.
• Learn and understand your tax situation.
• Learn and understand your support exposure/expectation.
• Run your financial questions by your accountant and attorney.

What If I Cannot Save Money?

Keep calm. While it is always better to be liquid, there are steps you can take to lessen and quantify your financial burden. This is a very individual process. Consult your attorney, who will be knowledgeable about your particular case.

Hire the Right Attorney

How do you hire the right attorney? Ask the right questions. Here are some questions to ask of any potential new counsel:

• 1. Is this the only kind of law you do? Law, like medicine, has become more complex. Just as you would not hire a podiatrist for a throat problem, it makes no sense to hire a personal injury attorney for your divorce. Someone devoted to family law is the most prudent option.
• 2. Who will I deal with at your law firm? If you hire attorney X, you may expect attorney X to represent you. But some firms will have a partner be your official attorney while an inexperienced associate actually represents you. Information may be sent from partner to associate to paralegal to secretary to assistant and back. That is the worst of both worlds. You pay a lot and get a little. Also, you need to re-tell your story over and over (and pay for the privilege).
• You hire the attorney, but you will also interact with staff such as a paralegal, secretary or assistant. Do I know this person? Do I trust this person? Does this person know my case?
• 3. How experienced is my attorney? Did they graduate recently? Have they handled cases like mine? How long have they practiced? Does my attorney seem knowledgeable about the law, the courts, finances and the unwritten rules?
• 4. How do I get along with my attorney? Family law is the most intimate form of law there is. It is important that you feel personally comfortable with your attorney. Do I feel comfortable with him/her? Trust your gut - does he/she seem right for you?

Things NOT to Do

• Don’t play games or try to hide money.
• Don’t keep secrets from your attorney.
• Don’t plead poverty and go on a cruise.
• Don’t make marriage plans until you are divorced.
• Don’t vacate the house without seeing an attorney first.
• Don’t miss any court dates.
• Don’t “play one parent against the other” with children.
• Don’t confide in children.
• Don’t insult or belittle your spouse in front of your children.
• Don’t seek justice or revenge in litigation. The judge doesn’t weigh hearts, she only weighs wallets.
• Never put anything in social media or an email that you would not want the judge to read.
• Don’t take your spouse off of your life insurance.
• Don’t take your spouse off of your health insurance.
• Don’t move without notice.

And don’t let your spouse do any of these things to you!

Chapter 2
Divorce

In Pennsylvania, the legal divorce process is started by a “Complaint in Divorce” and is completed by a “Decree in Divorce” that is issued by the relevant county. The Decree ends the marriage and renders each party single.

The Complaint in Divorce may be filed by either party and includes “counts” that raise specific issues, such as getting divorced, dividing property, spousal support, alimony, insurance, counsel fees, custody, and more. In response, the non-filing party may file counts that were not raised in the original Complaint in Divorce or choose not to file anything.

There are two common bases for a divorce in Pennsylvania. (A) The consent of both parties; or (B) Two years’ elapsing from the date of separation. Almost all divorce cases are on the basis of consent or separation.

Consent - The parties can consent to a divorce by each filing a “3301C” Affidavit of Consent. Parties most often consent, at some point in time, in their mutual interest. An Affidavit of Consent is most often paired with a Waiver of Notice that speeds the divorce decree.

Parties can consent to a divorce as soon as 90 days after service of the Complaint in Divorce. However, either party can also stop the process until at least 2 years have elapsed from the date of separation.

Separation - Some cases are based upon a party filing a “3301D” affidavit, attesting that the parties have been separated for more than 2 years. A significant minority of cases end up being 3301D divorces.

The date of separation is a legal determination and not simply the date somebody moved out. Parties may reside together in a house and still be separated by a Complaint in Divorce. Or parties may live in different countries (such as military families) and still not be separated.

Parties can technically get a “fault” divorce but these are exceptionally rare and generally wasteful. No matter how you get divorced, a properly worded and timed chain of divorce paperwork must be filed on your behalf.

Annulments are also technically possible in a few narrow cases (such as bigamy or marrying your first cousin), but annulments are also exceptionally rare.

Five common misconceptions about divorce:

1. Common law marriage: Common law marriage in Pennsylvania ended many years ago, except for a few “grandfathered” couples. Even back then, you did not become “common law” married through merely living together.
2. Abandonment: Pennsylvania law no longer includes “abandonment” or “desertion” charges.
3. Automatic Divorce: Nothing happens automatically to your divorce after 90 days, 2 years or any other time period.
4. Personal concerns: Being “nice” or “mean” during the marriage does not matter.
5. Filing first: There is usually no advantage to filing for a divorce first. The only advantages to not-being-first are lower filing fees and the possibility of a “Rueckert Motion.” A Rueckert Motion can occasionally speed up a case against a delaying party who receives alimony pendente lite (see section 6 on alimony pendent lite).

Divorce Topics at a Glance:

• Divorce and Custody - Custody and divorce are not linked. Neither support rights nor custody rights are directly affected by obtaining a divorce. Generally, custody and support orders are not entered while the parties still cohabitate. However, there are exceptions for spousal support/APL. Sleeping on support, custody, or divorce rights can be disastrous.
• Simple Divorce - Parties with small and simple marital estates may sometimes get a “simple” divorce that merely divorces the parties and does not address economic issues. The parties can do a “simple” divorce where each party walks away with what they have. This is the easiest, cheapest and fastest kind of divorce but it only works well if the parties don’t have any joint assets or debts and can each support themselves and can cooperate. Issues like health insurance, spousal support and hidden assets can all undermine a simple divorce. So, you should still speak with an attorney even if you think you have a “simple” divorce. More complex situations are often accompanied by either an economic agreement of the parties or an economic order from the court.
• Finances - Almost all divorce litigation arises from the economic terms of the divorce, rather than the divorce itself. The divorce itself and the attached economic issues (primarily equitable distribution and alimony) are most often settled or litigated together. Occasionally, a divorce will be “bifurcated” (i.e. separated) from its economic elements, so that the parties may get divorced prior to economic settlement. However, bifurcations are based upon rare convergences of law and strategy.

Generally, the parties are best served by obtaining a mutually acceptable divorce agreement. This way parties can get divorced on their own terms and without ever having to go to court. Try to treat your divorce like a business matter, where the goal is to lose as little as possible. A reasonable agreement requires both parties to be reasonable. In the absence of an agreement, the court will decide the economic settlement of the parties. The court generally has no time for the parties’ personal gripes with one another. The economic settlement is generally based upon dates, figures and legal factors.

Always consult your attorney about consent, “date of separation,” and the rules and strategies for your divorce. Know your rights, options, and limitations – including your best, worst, and most likely outcome scenarios. Understand how your finances, including taxation, will affect your divorce. Staying informed is your best strategy for moving your case – and your life – forward. Even the simplest divorce or custody agreement should only be entered after first having been counseled by an attorney.

Chapter 3
Dividing Assets and Debts

In Pennsylvania, who gets what is determined by a process called “Equitable Distribution.” The process is so called for its aspirations, not necessarily its results. For this and many other reasons, settlement is usually preferable. Most cases are settled prior to trial.

The percentage distribution between the parties is determined through the use of eleven factors:

• (1) The length of the marriage.
• (2) Any prior marriage of either party.
• (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
• (4) The contribution by one party to the education, training or increased earning power of the other party.
• (5) The opportunity of each party for future acquisitions of capital assets and income.
• (6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
• (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
• (8) The value of the property set apart to each party.
• (9) The standard of living of the parties established during the marriage.
• (10) The economic circumstances of each party at the time the division of property is to become effective.
• (10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.
• (10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.
• (11) Whether the party will be serving as the custodian of any dependent minor children.

All factors are not created equal, and may vary in significance based on the facts of the case, the judge presiding over the case, and the county in which it is settled. Furthermore, judges usually cite previous cases in the Commonwealth that are similar to yours for guidance. This precedence is known as “case law.” This case law provides for a sense of fairness, based on history and common sense, in the distribution of alimony and assets.

The court generally will not consider the parties’ personal grievances. Marital misconduct is specifically excluded as a factor in equitable distribution. So, it generally does not matter how awful or wonderful a spouse was unless the bad acts had an economic effect, such as gambling debts.

Most property acquired between the date of marriage and date of separation is “marital property” subject to equitable distribution. Exceptions to this rule include inheritances, gifts (except between spouses) and property excluded by a prenuptial or postnuptial agreement. However, non-marital property can be “transmuted” into marital property by being deposited into a joint account or by other means.

Marital property includes the appreciation on non-marital property, such as the increase in value on a pre-marital home. Debts and assets are both considered. The court looks at the “net value” of an asset. For example, the net value of mortgaged marital property is often calculated by subtracting out the balance of the mortgage. Taxes and cost-of-sale expenses may also be considered in determining a net value, depending on the type of asset and other factors.

The marital estate may be divided evenly or through a “skewed” distribution that provides more than 50% to one party. The entire marital estate may be divided by one percentage or different percentages may be assigned to different assets or groups of assets. The court may award an entire asset or debt to one party or the other, as part of the overall equitable distribution. The court may also require the parties to divide or sell an asset or to pay a debt or to protect assets.

Retirement plans can be tricky:

• Many retirement assets require a “qualified domestic relations order” (“QDRO”) to divide between the parties.
• QDROs are administered per federal law and so can be cumbersome to draft, finalize and implement.
• QDROs must juggle inflexible federal requirements, proprietary company forms and the particular desires of the client.
• Retirement plans can be divided up or appraised and set-off against other assets. It is important to know when to choose the right option.
• Valuing defined benefit retirement plans requires a projected date of retirement, actuarial assumptions, method of valuation and many other factors such as the date of separation.

In equitable distribution, only the marital portion of a retirement plan is divided. The marital portion is ascertained by a “coverture fraction.” So, if an employee worked for a company for 5 years during the marriage and then 10 years after the marriage, his or her retirement account would only be 1/3 marital (5/15 = 1/3). If the spouse received 50% of the marital portion of the retirement account, the spouse would only receive 1/6^th of the entire value of the account (1/3 x ½=1/6).

By itself, equitable distribution is not a taxable event. In fact, some events that usually incur a penalty may be penalty-free due to equitable distribution. However, you might face taxes or penalties in connection with liquidations, sales and the like that may be ordered or become necessary because of equitable distribution. And assets may have tax bases. Also, the parties may each have different tax statuses after the divorce.

Chapter 4
Prenups, Postnups and Settlement Agreements

Some divorce cases will be decided by litigation and a happy few will be a “simple” divorce. But cases involving significant marital assets or debts are most often resolved by an agreement between the parties.

A good economic settlement should be tailor-made to your case. All settlements contain common elements, but there are an infinite number of ways to tailor a settlement to the parties. Should there be insurance protection for support? Should the asset and/or payment be transferred immediately or over time. Are there win-wins with claiming children on taxes? Should payments be child support or alimony? Do I want to push/explore more or get this case over with? Should I keep the house or sell it? Will support include a budget for going back to school?

There are four basic types of agreements. The first is a consent order. Consent orders of court are agreements between the parties in the form of a court order. They are entered after the divorce complaint has been filed and are generally used in rather simple cases where some type of economic settlement is still required. Other cases require a more thorough type of contractual agreement and the three basic types of such agreements are reviewed below.

Prenuptial Agreement

A prenuptial agreement (“prenup”) is the cheapest, quickest and safest way to resolve a divorce. Unfortunately, most people do not enter into prenups prior to marriage, viewing it as “anti-romantic,” rather than as an insurance policy that need never be used.

A prenuptial agreement is an agreement between the two parties prior to getting married. It can settle (in advance) an entire case or it can settle certain aspects of a case (such as ownership of a family business or appreciation on a family home).

A prenup is a contract between the two parties, made outside of court. The key to making a prenuptial agreement enforceable is disclosure of assets, debts and economic status. This can be done by appending exhibits to the Agreement or by other means. Each party should have sufficient time to review the agreement, so don’t wait until the week before your wedding.

A prenup can be done by one attorney but the attorney can ethically represent only one side. We have done many successful “one-attorney” prenups. A good one-attorney prenup should include proper language about disclosure, the attorney status and waiving the right to counsel.

Prenups need certain “magic” words and concepts to make them enforceable. But, prenups do not need to be “even” or even “fair.” However, a “fair” prenup is more likely to survive a challenge if legitimate issues arise.

Prenups are advisable for everybody, even if the parties don’t yet have significant assets or debts. For example, a prenup might state that all future marital property would be divided on a 50/50 basis and that alimony is waived. This way, potential future litigation is narrowed even though the parties may have no idea what the future may hold.

Prenups are especially important when dealing with existing businesses, professional practices and family assets.

Courts frown upon and may nullify prenups that were entered into hastily, while a bride is wearing her gown, or where one party used deception or significant leverage over the other party to induce a signature. Prenups signed under duress have been known to be invalidated. Courts favor prenups that both parties had significant time to review.

Postnuptial Agreement

A postnuptial agreement is the rarest type of agreement. As its name implies, it is entered into following the marriage. However, it is also entered into before a divorce is filed. A postnuptial agreement basically says that if the parties get divorced in the future, then such and such will happen.

Postnups tend to get drafted typically when a spouse is caught cheating or has been unilaterally squandering money.

Most of the law and good practice regarding prenups is also applicable to postnups.

Marriage Settlement Agreement

A marriage settlement agreement (MSA) is the most common type of agreement and should be the goal of most divorce proceedings. A proper MSA resolves all of the economic and divorce issues, though implementation can still take time.

Like a prenup, an MSA also requires disclosure, time for review and “magic words,” to be enforceable.

A good MSA will anticipate potential future problems. What if my spouse has tax problems from our joint returns? What if my house does not sell? What if my spouse puts my name on debts in the future? What if I become disabled? What if my spouse dies while the kids are young?

MSAs tend to contain some necessary “boilerplate” language but really are custom-tailored to the facts, needs and desires of the parties. This is one of the reasons that an MSA is usually preferable to a litigated divorce.

Like a prenup, an MSA can be done by one attorney, but that attorney can only represent one side. An MSA should resolve all of the divorce issues, including getting divorced, the family home, retirement assets, alimony (or lack thereof), counsel fees, debts, cars, personal property, taxes, the divorce decree and much more. Custody is usually done by a separate order. Child support is also usually done by a separate order, but that separate order may be specified in the MSA.

Chapter 5
Child Support

Calculating Support

Most support orders are calculated from a “guideline” figure. A guideline figure is derived from a chart and formulas. It takes into account the parties’ net incomes (or earning capacities), the number of children, custody status, tax filing status, health insurance costs and other factors. Some factors (such as multiple families and extraordinary costs) exist in only a few cases.

Parents with minor children living in Pennsylvania each owe a duty of financial support to their minor children. In cases where paternity is at issue, a genetic sample will often be taken from both parties and parentage will be established. Unless the parties have shared custody and similar incomes, one party will usually pay child support to the other party, through the Pennsylvania Automated Child Support Enforcement System (PASCES).

“Earnings” are not always the same as an “earning capacity.” Pennsylvania support may be calculated by an earning capacity if someone is not fully employed to their capability.

Determination of earnings looks prospectively to the future but often uses past earnings to estimate the future. Some types of public assistance are income for support purposes and some are not. Support is based upon “net” income, not “gross” income. Thus, gross income can be reduced by taxes, mandatory retirement, union dues and certain other expenses. However, the court uses its own tax formula, not that used on a paycheck.

Calculation of support for high income families used to lie outside of the basic child support calculations, but is now subject to the same calculations as everybody else. For lower income cases, multiple families may also matter.

Child-care costs can be a large component of a child support order and are often assigned between the parties. Payment is sometimes made a part of the order and is sometimes made directly to the provider.

A child support order may also contain a number of “deviations” and exceptions. A “deviation” is an adjustment from the guideline figure. For example, a child support order could “deviate” upward from its guideline figure by, say 10%, if the payer, voluntarily and without cause, spends no time with the child. Or an order could deviate downward if the payer has very large medical expenses.

Other issues may include hidden or unreported income, private school, earnings v. earning capacity, extracurricular activities, summer camp and many more.

Support and Custody

For support purposes, custody is counted by overnights. The party with more than 50% of overnights has “primary” custody and the party with less than 50% of overnights has “partial” custody. The person with “partial” custody usually pays child support to the person with “primary” custody. A party with partial custody can get a modest break on child support if they have at least 40% of the overnights.

A common mistake, though, is to seek shared custody or 40% of the overnights for monetary reasons. People tend to fixate on the money they might save in support and ignore the extra money needed for the care of the children, as well as the best interests of the children.

Failure to pay child support can be enforced through the support system, but often does not directly impact custody.

In shared custody arrangements, similar earnings may mean no support either way. Otherwise, the higher earning shared-custody parent would pay support to the lower earning parent.

Support for Adult Children

Children are usually eligible for child support until they have turned 18 and also graduated from high school (or have stopped diligently attempting to graduate). Exceptions beyond age 18 exist for certain special-needs children.

College expenses are not court-ordered in the Commonwealth, except by written agreement of the parties.

Paying Support

Child support is almost always wage-attached. Just like taxes come out of pay automatically, support orders routinely garnish the payer’s wages and are then direct deposited to the recipient. Alternatively, a recipient may use an “EPPI” card (a debit card), but that is not usually recommended.

The support obligation is unaffected by an inability to garnish. In such cases, the payer will need to pay the obligation themselves. Non-payment of support for a prolonged period may result in a “contempt” action or other nasty enforcement mechanisms such as loss of a driver’s license or professional license. A tax refund is sometimes attached, even if the payer is timely.

Failure to pay child support can be “contempt of court.” Failure to pay may also result in serious consequences, such as loss of a license, attachment of refunds and even incarceration. However, the most serious consequences are usually reserved for repeated or major violations. The court does not generally care how the custodial parent spends the support money.

Some expenses may be paid directly to the provider or they may be folded into the monthly child support payment. Child support may be paid by parties filing taxes jointly or separately. Child support is not taxable income by itself, but often ends up being taxable when combined with spousal support, depending on allocation.

Child Support Plus Spousal Support

Child support may be combined with spousal support or be subtracted from spousal support.

The calculations for child support are made independently of the calculation of spousal support. However, spousal support calculations are dependent on the existence of child support. Child and spousal support may be “allocated” separately or “unallocated” together.

Support Procedure

Filing for support does not require counsel. However, deciding whether to file for support, preparation for a support conference/hearing and negotiation and litigation at the conference/hearing all benefit by having counsel. In child support cases where the parents are also married, the order may also include spousal support or alimony pendent lite (APL).

Across the state, support cases start with a conference, where county personnel take information, compute figures and encourage settlement. The details differ from county to county, but the point is the same. If the parties settle, then no hearing is necessary.

The hearing process differs from county to county. For example, in Allegheny County. the support conference and (if necessary) the support hearing are heard one after the other, on the same day. In Washington County, the support conference and (if necessary) the support hearing are spaced weeks apart. This means, among other things, that representation by counsel for a support conference is sometimes unnecessary in Washington County but uniformly advisable in Allegheny County. And preparation for the two different formats is entirely different.

Child support orders always deal with health insurance for the children (even if the parties have no insurance) and unreimbursed medical expenses.

Negotiating Support

Where parties are both represented by counsel, documentation may be exchanged so that counsel may negotiate towards a “guideline” figure. Resolution in advance may benefit both parties, as they can avoid bitterness, extra counsel fees and a court appearance.

Many cases settle short of contested litigation. Settlement is the best first option. Yet, a good attorney will simultaneously prepare for trial and judge the “fairness” of an agreement against the expected results of a trial.

Your Pennsylvania family law attorney should be able to explain every concept we have outlined above and tell you how each issue impacts or doesn’t impact or may impact your case.

A child support case can be very simple, fiendishly complex or anywhere in between. Legal counsel can help tell you where your case falls on the complexity spectrum. This helps you concentrate on important matters and skip trivial matters.

Chapter 6
Spousal Support/Alimony Pendente Lite

What is spousal support and APL?

Spousal support and alimony pendente lite (APL) are basically the same thing. They both provide support from a higher-earning spouse to a lower-earning spouse and are calculated the same way. One cannot receive both spousal support and APL. APL (like spousal support) is for an existing spouse and is based upon a set formula. It usually lasts until the parties are divorced.

The only difference between the two is that because APL is awarded when there is a filed divorce proceeding, APL is not subject to the “entitlement defense.”

On the other hand, alimony and alimony pendente lite are totally different concepts and apply in different circumstances. Alimony is for an ex-spouse after a divorce. It is not granted without need and has no set formula to determine amount or duration.

Spousal support/APL can be requested at the same time one requests child support. All support requests in a case are heard at the same time. However, Allegheny County and Washington County have traditionally dealt differently with whether an award is spousal support or APL.

How Are Spousal Support/APL Calculated?

Unlike child support, spousal support/APL is based upon a simple formula. When there is no child support, the lower earning spouse receives 40% of the difference between the parties’ net incomes (or earning capacities). Where the recipient also receives child support, the lower earning spouse receives 30% of the difference between the parties’ net incomes (or earning capacities) after also factoring in the child support.

A party’s net income usually looks at all sources of income (salary, bonuses, most perks, second jobs, certain investment income) and then subtracts out taxes, union dues, mandatory retirement deductions and a percentage of health insurance costs.

The IRS and support court do not look at net income the same way. For example, depreciation and entertainment expenses are generally not considered by the support court. In a cases involving a military spouse, BAH, BAS and active-duty bonuses are usually part of net income.

The order is sometimes adjusted based upon the mortgage obligations of a party, depending on the mortgage, insurance and property tax cost of the marital residence versus the income of the payer.

In any event, both spousal support and APL are tax deductible to the payer, so long as the parties do not file jointly. Accordingly, spousal support and APL are taxable to the recipient, so long as the parties do not file jointly.

What can complicate support?

Various issues can complicate a spousal support case, including:

• Self-employed persons;
• Stock options, ESOPs and the like;
• Unusual bonuses;
• Unusual lump sums (such as from insurance or a wrongful death suit);
• Overseas income;
• Under-employed persons;
• Military pay;
• Short marriages (less than 2 years);
• High income cases; and
• Deviations for mortgages, unusual expenses and other matters.

It is especially important to have legal counsel if any of these above complications apply to your case.

Chapter 7
Alimony

Alimony is support for the maintenance of an ex-spouse, following a divorce. Unlike spousal support or APL, alimony is not simply granted as a matter of course. Alimony can be awarded by the court or by agreement of the parties.

Alimony is tax deductible to the payer and taxable to the recipient. Some parties may get a win-win by agreeing to move the award of some assets to alimony, so that the higher paying party gets the deduction. However, improperly scheduled alimony may be re-characterized by the IRS as child support or equitable distribution, depending on the schedule of payments.

Alimony is often terminable upon the remarriage or the romantic cohabitation of the receiving party and must be terminated upon the death of either party. In some cases, cohabitation with a third party will bar alimony, even if it has ended by the time of litigation.

Alimony is only granted where the court deems it advisable. The party seeking alimony must present a budget for the alimony and otherwise argue for its advisability.

The court uses several factors in determining whether alimony is necessary and, if so, the amount and duration of the alimony. The relevant factors include:

• (1) The relative earnings and earning capacities of the parties.
• (2) The ages and the physical, mental and emotional conditions of the parties.
• (3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
• (4) The expectancies and inheritances of the parties.
• (5) The duration of the marriage.
• (6) The contribution by one party to the education, training or increased earning power of the other party.
• (7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
• (8) The standard of living of the parties established during the marriage.
• (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
• (10) The relative assets and liabilities of the parties.
• (11) The property brought to the marriage by either party.
• (12) The contribution of a spouse as homemaker.
• (13) The relative needs of the parties.
• (14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under section 6102 (relating to definitions).
• (15) The Federal, State and local tax ramifications of the alimony award.
• (16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party's reasonable needs.
• (17) Whether the party seeking alimony is incapable of self-support through appropriate employment.

Equitable distribution is an unofficial partner to alimony. For example, a party receiving alimony may get a smaller distribution of the marital estate and vice versa.

An alimony award by the court is subject to modification upon a change of circumstances. An alimony award by agreement of the parties may be “non-modifiable” or not, depending on the wording of the parties. Parties can personalize the termination triggers for alimony. For example, alimony might be non-modifiable except for a reduction based upon the “significant, involuntary reduction of income” to the payer.

Since the parameters of alimony are so vague, each county and each judge treats a claim for alimony differently. On top of that, an alimony claim is a very fact-specific matter. Alimony is not always given and many cases have no alimony. Don’t count on either receiving or paying alimony without speaking to an attorney first.

Chapter 8
Custody

There are two basic forms of custody in Pennsylvania. “Legal” custody and “physical” custody. Legal custody is the ability to make important life decisions on behalf of the child. Such decisions may include choosing a school, doctor, church, or camp. Legal custody is most often shared between parents, though exceptions exist.

Physical custody is actually having the child with you. A parent with “primary” physical custody will have the child most of the time. A parent with “partial” physical custody will have the child for less than 50% of the time. A parent with “shared” physical custody will have the child with them for half of the time. Time is usually measured by overnight stays. Thus, a parent with 5 nights a week will have primary physical custody while a parent with 2 nights a week would have partial physical custody.

Custody determinations are always supposed to be based upon the “best interests” of the child. Some important factors to “best interests” may include the “status quo” (the current arrangement), parties’ schedules, the child’s preference, the presence of siblings, distance between parties and how well the child is doing in school.

A custody action is best resolved through agreement of the parties. Generally, the more contentious the relationship between parents, the more detailed the order should be. A custody order will often deal with legal custody, regular physical custody, summer custody, vacations, telephone contact and transportation.

A good attorney can save everybody a lot of headaches by anticipating potential friction-points between the parties and drafting the order accordingly. However, since no custody order can anticipate every eventuality, the parties must deal with one another generously or else live with unnecessary tension, expense and unpredictability. We often tell clients that you do not want to be walking your child down the aisle with your ex, while still hating each other.

Failing an agreement, the court will issue a custody order following a hearing. Custody is particularly full of “unwritten rules” that differ from county to county and even from judge to judge. Properly trying a custody case requires a great deal of experience.

Custody is the most fact-based and narrative-based area of family law. Yet it can also be a topic of heated emotions. Therefore, an experienced, skilled, and analytical attorney is crucial for custody negotiation or litigation. A seasoned family lawyer is critical for addressing parental alienation claims, controlling parents, drug use, special needs, dishonest parties, unreliable parents, long distances, and philosophical and religious disputes.

Contrary to popular opinion, Pennsylvania custody law is gender-neutral.

A party acting in loco parentis (like a parent) can seek custody just like a parent. Grandparents can have limited custody rights in certain situations.

Factors for Custody

The judge is required to review all of the factors when making a custody order. The relevant law states:

• (a) Factors - In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
  • (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
  • (2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
  • (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
  • (3) The parental duties performed by each party on behalf of the child.
  • (4) The need for stability and continuity in the child's education, family life and community life.
  • (5) The availability of extended family.
  • (6) The child's sibling relationships.
  • (7) The well-reasoned preference of the child, based on the child's maturity and judgment.
  • (8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
  • (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
  • (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
  • (11) The proximity of the residences of the parties.
  • (12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.
  • (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
  • (14) The history of drug or alcohol abuse of a party or member of a party's household.
  • (15) The mental and physical condition of a party or member of a party's household.
  • (16) Any other relevant factor.

Relocation

Sometimes one parent (or both) will wish to relocate from his or her present location. A “relocation” is any move that materially effects the other parent’s custody rights. So, moving a few blocks is rarely a “relocation.”

The court has no right to tell adult litigants where to live. However, the court may award custody of the children in such case to the non-relocating parent. Litigation may ensue when both parents wish to exercise primary custody.

Relocation cases involve special factors and requirements. Prior to relocating, the party wishing to move must provide a particular counter-affidavit and also give a particular type of detailed notice, within certain time periods.

The party wishing to move has the burden of proving why the move is in the best interests of the children. As with regular custody, the court uses a set of state-mandated factors.

Among these factors are:

• (1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child's life.
• (2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.
• (3) The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
• (4) The child's preference, taking into consideration the age and maturity of the child.
• (5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
• (6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
• (7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
• (8) The reasons and motivation of each party for seeking or opposing the relocation.
• (9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.

As with regular custody, relocation cases are very fact-specific and require the highest level of legal acumen to negotiate or litigate. Also like regular custody, some factors matter more than others and many important rules are unwritten.

Jurisdiction

Jurisdiction for custody is determined by the Uniform Child Custody Jurisdiction Act (UCCJEA). The UCCJEA is one of the few custody laws shared by the different states. Custody usually (but not always) is in the “home state” of the child. The UCCJEA is also used to decide conflicts between different counties in the same state.

Chapter 9
Protection from Abuse Orders (PFAs)

A Protection from Abuse Order (“PFA”) is a type of “no contact” order that is designed to shield a “protected” party from the abuser. It is supposed to be granted when the protected party has a reasonable fear for her (or his) safety because of the other party.

All PFAs are civil orders. They are not criminal orders, though they can have consequences to employment and elsewhere. There are three basic types of PFAs:

• Emergency PFAs:
• Temporary PFAs; and
• Final PFAs.

Emergency PFA - For emergencies outside the usual court hours. Call your local police if you think you may need an emergency PFA. Stay away from a party if you think they may be filing an emergency PFA.

Emergency PFAs are granted “ex parte”. Ex parte means that one side is talking to the judge without the other side being present. Emergency PFA proceedings also have minimal judicial oversight and so are very short-term - designed only as a bridge to a temporary PFA. So, emergency PFAs are granted, but only for the shortest time period possible.

Temporary PFA - Ordinarily, a case will begin with a request for a temporary PFA. This is also an ex parte proceeding. The party seeking protection will complete a request for a PFA and then be heard by a judge, ex parte.

At the temporary PFA proceeding, the judge will generally assume that everything the party is saying is true and only determine whether the claims are serious enough to warrant a PFA. If they are (and sometimes if they are not), the judge will issue a temporary PFA.

The court will schedule the matter for a prompt final PFA hearing where both parties can be present. The final hearing is to occur within 10 days of the temporary PFA. However, some Pennsylvania counties routinely ignore this time restriction.

Final PFA - A final PFA can be awarded for up to 3 years. It will prohibit the defendant from abusing, harassing, stalking or annoying the other party. It will also prohibit all contact except as permitted in the order.

A “final” PFA is final in the sense that the matter has been resolved (short of an appeal to Superior Court). However, its duration is finite. A PFA may be for a maximum of 3 years, but the minimum is open (though the court does not usually grant very short final PFAs). Sometimes, a temporary PFA is “continued” (rescheduled) because of notice, scheduling or other issues. Generally, the PFA will continue in force during this rescheduled period.

In practice, PFAs are mostly – though not exclusively - sought by women. However, the PFA statue is gender-neutral. Each county has its own method of administering and scheduling PFAs, but they generally involve large “cattle calls” of people at one time. Also, every county tries to encourage people to settle their cases (when settlement is not under duress).

Temporary PFAs may end for failure to follow through, by agreement from negotiations or by the decision of a judge following a hearing. Final PFAs may be granted by agreement of the parties, through failure to appear (following notice) or a judicial decision following a hearing. Most final PFAs that are granted following a hearing are properly granted. However, enough questionable PFAs are sought for strategic or malicious reasons that it has become a concern for some attorneys.

Experienced practitioners will have good advice on best practices in avoiding PFAs (on both sides), PFA litigation, and post-PFA actions. There are a number of strategies for dealing with PFAs. You should contact an attorney ASAP if you find yourself on either side of a PFA action.

Elements of a PFA

In Pennsylvania, “abuse” subject to a PFA is defined as follows:

“Abuse” - The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:

• (1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
• (2) Placing another in reasonable fear of imminent serious bodily injury.
• (3) The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
• (4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
• (5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses).

Party - Only certain relationships are subject to a PFA. PFAs can only be obtained against current or former intimate partners, immediate family members and household members. In other words, you cannot get a PFA against someone who is just a neighbor, co-worker or friend. If someone like that is harassing, stalking or menacing you, then you should speak to an attorney about options, warning letters and seeking criminal charges.

Adults can bring an action on behalf of themselves and/or their children.

Safety -PFAs are only granted for a reasonable fear for your physical safety (or that of your children). One cannot get a PFA because the other side was merely mean.

Relief - A PFA can forbid the other party from abusing, harassing or stalking the other party and/or children. It may award temporary custody, temporarily surrender guns, award economic relief (less common) and prohibit “the defendant from having any contact with the plaintiff or minor children, including, but not limited to, restraining the defendant from entering the place of employment or business or school of the plaintiff or minor children and from harassing the plaintiff or plaintiff's relatives or minor children”.

Resolution of a PFA - Most PFAs are resolved by negotiation, agreement of the parties or absences. Representation for negotiation is vital, especially where custody, property or employment may be affected. A properly worded agreement outside a hearing is just as vital as skilled litigation at a hearing. A good attorney can help achieve and shape a good settlement for the PFA.

PFA negotiation is a good opportunity for a creative attorney who thinks strategically. Among the attorney tools is exclusive possession of the residence, temporary custody, temporary support, denial of abuse claims and retrieval of personal items.

Violation of a PFA - The defendant violates the PFA if he or she abuses, harasses, stalks or annoys the other party. It is also generally a violation to contact the other party, though exceptions are sometimes carved out for children and other reasons. The defendant is often excluded from the plaintiff’s work, home and other addresses, although, again, exceptions can be made. On the one hand, a PFA is still just a piece of paper and cannot physical block the other party. On the other hand, violation of a PFA can be a criminal matter.

Emergency and temporary PFAs are subject to the same criminal violations as a final PFA. “Contact” generally includes indirect contact such as through third parties. Contact also includes electronic contact (email, or social media sites such as Facebook or Twitter) and proximity to the protected party.

Chapter 10
2016 Information on Allegheny County PA Family Court Personnel and Offices

Judicial Suffixes

Your judge is part of your case number. All Allegheny County, PA judge numbers begin with a “00.” For example, you have Judge Bush if your case number is "FD16-001234 001". Unfortunately, the County lacks a sense of panache and we rarely have a 007 judge.

The current Allegheny County judicial suffixes are as follows:

Judges change. For example, Judges Regan and McGough are new for 2016. And Judge Mulligan stepped in for Judge Satler for several weeks, while Judge Satler was out.

Contacting Judges

You should not call a judge's chambers if you have an attorney representing you. If you are self-represented, you still should not contact the judge's chambers until you have first familiarized yourself with the judge's Standard Operating Procedures. Court personnel cannot give you legal advice. Also, do not expect to get the judge at the following numbers. You will reach a member of the judge's staff.

Each county has its own way of doing things and Allegheny County is much larger than other Western PA family court systems. Here is the contact information for Allegheny County family division.

Family | Judges

Offices

The Allegheny County Family Division is located at the Family Court Facility, 440 Ross Street, Pittsburgh, PA 15219. Most offices in the Family Division are open for business from 8:30 a.m. to 4:30 p.m., Monday through Friday. Several key offices, however, which are of particular importance to the public, operate on slightly different schedules, as noted below.

Various Phone Numbers