Child Support Conferences and Hearings – No Place for Amateurs!

Posted on by Kristen Anders Bojarski

You have just received a notice and order that your spouse, former spouse, or other parent has filed a complaint for child or spousal support or Alimony Pendente Lite (APL – spousal support pending a divorce), and that you must appear in court for a conference/hearing. This notice gives you a date, time, and place to appear, and a list of documents you must bring to the conference/hearing.

In Allegheny County, both parties first attend a conference before a Domestic Relations Officer (DRO), who uses a computer program to generate a guideline monthly support number based on incomes and other information provided by the parties.   The parties are encouraged to reach an agreement, which will then be typed up into a consent order for support and signed by the parties.  If the parties don’t reach an agreement, they proceed straight to a hearing that day.

In other counties, like Washington and Westmoreland, if you don’t reach an agreement at the conference, you go home.  The DRO issues a recommendation for an order (which goes into effect immediately), and if either party is dissatisfied, they can request a “de novo” hearing (an evidentiary hearing before the hearing officer) which is scheduled at a later date.  Sounds like cake, right?  You can do this yourself without having to pay a lawyer, right?

Not so fast.  The majority of support cases in PA are resolved at the DRO level. Although not all parties consent to the guideline amount of support that the DRO comes up with, many do or at least use the guideline number as a starting point to negotiate. For this reason, it is very important to have a good idea of what the guideline “number” is before the conference.

To prepare for a DRO conference, I always meet with my client ahead of time, have them bring with them all of the documents required by the order, and analyze the facts of the case, my client’s income and the other party’s income if it is available to me, and then run various guideline scenarios on a special computer program designed for that purpose, depending on the facts of that particular case. Although what you can “afford” is not relevant to the amount of the order (many support payers are surprised by this), there are special facts and “deviations” which could affect the amount of the final order.

It is always surprising to me to see how many attorneys show up at a DRO conference without having prepared their own guideline calculations ahead of time.  This lack of preparation is a real disservice to the client, and was described at a CLE (continuing legal education) course I recently attended as “malpractice.”

DRO’s are generally very good at what they do, but they are not attorneys.  In counties like Allegheny, it is not for a DRO to know or tell the parties when a deviation is appropriate.  Plus, DRO’s are human; they sometimes make mistakes.  It is very easy for a DRO to mistakenly calculate the guideline monthly support amount as though one party has primary custody of the children, when the parties really have some sort of shared custody arrangement.  I’ve also had DRO’s mistakenly input a party’s weekly income as monthly income.  It’s easy to imagine how a mistake like this could greatly impact the guideline number that is generated.  If you are prepared and have an idea of what the guideline number should be, it is easy to catch a mistake by comparing numbers with the DRO’s.

If the attorney has not prepared their own calculations ahead of time, how can they possibly know if the DRO made a mistake?  They don’t know, and as a result, they allow their clients to agree to support orders that can be terribly unfair.  Some errors go unnoticed for years, if they are ever caught at all.  Everyone knows someone who complains they are paying too much or receiving too little in child support.  If they didn’t use an attorney experienced in support issues, maybe their order is incorrect.

If you have a support proceeding coming up, insist that you meet with your attorney ahead of time, so that they can go over the documents with you, prepare a guideline calculation, and then determine if some deviation or special circumstance may apply in your case.   If your attorney doesn’t do this, find another attorney.

On the other hand, if you already have a support order established, and it was entered at the DRO level without any preparation beforehand, I strongly encourage you to meet with an attorney to determine if the amount was appropriate considering your circumstances.

Sure, you are entitled to represent yourself, or get your neighbor’s friend who is a real estate attorney to represent you at a support conference/hearing.  I wouldn’t fix a broken leg by myself or go to an eye doctor for it.  Better to prepare properly rather than trying to fix something wrong later.  Sometimes we are unable to fix your mistakes, and you may end up paying a steep price for a bad decision.

An Open Letter to Adult Children of Divorcing Parents

Posted on by Kristen Anders Bojarski

Dear Adult Children of Divorcing Parents:

So your parents are going through a divorce.  Seems odd, right?  We tend to think of divorce like a sickness we acquaint with childhood, such as chickenpox.  If this was destined to happen, your parents should have gotten it over with in your early childhood years, right?  Actually, it is not uncommon for people who are in their later years of life with adult children to decide to get divorced.  There are a lot of reasons for this phenomenon.  Some people choose to wait until their children are grown, some grow apart over the years, some “cheat” on the other, or maybe they just fall out of love and are tired of going through the motions.  Sometimes one parent who has been bullied and belittled (and sometimes abused) by the other during the marriage gets counseling and gets up the nerve to go.

No matter what the reason your parents are splitting up, we have two words for you:  Butt out!

However, once you establish an adult relationship with your parents, you will find that adult relationships are not that simple.   Some things which appear to be entirely the fault of one parent come into focus as more of a shared issue.  You may come to realize that you are identifying with the bullying parent and have disdain for the bullied parent, which you have been experiencing all of your life. Let me give you a clue:  if one parent comes crying to you for support and to get yet on “their side” in the divorce litigation – Run!  You are a child of both parents; if that parent needs someone to talk to, they should get professional help.  Unloading their anxieties and frustrations of the marriage or the divorce litigation on their children is very unhealthy, both for the parent and the child.

We are always concerned when adult children get involved in the divorce litigation to support one parent or punish the other.  (In fact, this unfortunately happens with non-adult children.  If you see a parent unloading on an at-home, minor sibling, step in and tell the parent to stop, and counsel the sibling to stay out of the middle.)   We find that adult children who side with one parent sometimes attempt to “guilt” the rejected parent into accepting an unfair settlement.  It is not for the children to judge or to try to get one parent to take less or “walk away.”  Do you plan to care for the parent who gets less than they are entitled to in the divorce settlement, when they are old and sick and don’t have enough money to support themselves?

If you are an adult child and have concerns about what is happening in a divorce between your parents, ask the parent you are concerned about to schedule an appointment with you and their lawyer to discuss your concerns.  If that parent doesn’t have a lawyer, suggest that they get one.  There is no need for a divorce to be ugly.  If both parents are willing to be civil, then both parents should know their rights under the law.  Their settlement should be fair to both of them.

Once your parent is represented by a competent lawyer and knows their rights, step back.  You – and your parents – will have the rest of your lives to pick up the pieces and begin a different relationship.  You, your parents and your siblings will be all the better for having taken this advice.

A Lesson About Honesty

Posted on by Kristen Anders Bojarski

Yesterday, Attorney General Jeff Sessions recused himself from any investigations into Russia’s alleged interference in the 2016 U.S. presidential election after it was discovered that he failed to disclose two meetings he had with the Russian ambassador during the campaign at his senate confirmation hearing.  Sessions maintains that he didn’t intend to mislead the committee, and promised to issue a statement clarifying his testimony.  President Trump stated on his Facebook page that while Sessions’ responses could have been more accurate, it was clearly not intentional.

As one who spends a lot of time preparing witnesses for trial, I find it hard to believe that Sessions did not intentionally omit this information.  Russian interference in the election is a hot button issue – Sessions and his lawyers had to have expected that he would be asked questions about his ties with Russia, and thus prepared to answer those questions.  By not disclosing the information, Sessions made a terrible mistake that will likely haunt him, and the President, for years to come.   Let this be an important lesson to all of us: always be honest.

In almost every Family Law case that I handle, one or both parties have behaved badly at one point.  We are human after all.  When we are hurt, we want to get revenge.  When we are angry, we lash out.  Some of us even have skeletons in the closet.   Sometimes a party has an asset or a source of income they want to hide.

I always instruct my clients to tell the truth.  Don’t lie about your income, and disclose everything.  If you did something bad, be honest about it.  The bad stuff always comes out eventually, so disclose it on your own terms and not opposing counsel’s.   You and your lawyer can come up with a strategy for disclosing the information in a way that will have as little impact as possible on your case.

I can guarantee that the extra source of income or bad behavior will have less of an impact on your case than lying will.  If you are caught lying in court, you will lose all credibility with the judge on your case, and there may be other consequences, such as having to pay the other side’s attorney fees as sanctions, or in severe cases, imprisonment.

Sessions should have been upfront with the committee.  Maybe they were totally innocent meetings and he did nothing wrong.  But because Sessions chose not to disclose the meetings, he now looks like he was trying to hide something, and thus loses credibility.  Issuing a clarifying statement after the fact will not restore Sessions’ reputation.  The damage has been done.

So let this be a lesson to you: always be honest.

Gerrymanders does no Favors to Either Political Party (or the voters): Gerrymandering Part

Posted on by Barbara J. Shah

In my first article on gerrymandering in Pennsylvania, introducing and explaining the concept, I focused on the issue of the rampant gerrymandering of Congressional districts in PA, and how using the tactics of “packing” and “cracking,” PA voters now have 5 Democratic and 13 Republican Congressmembers, despite the fact that even in the 2016 election, when President Trump carried PA with 48.6% of the popular vote, and Republican congressional candidates received 52.5% of the popular vote, Republicans won 13 (more than 72%) of all PA congressional seats.  In fact, these statistics are somewhat misleading, because 2 Republican and 1 Democratic congressional candidate ran unopposed, so no opposition party votes were recorded in those districts (PA 3, 13 & 18).  Those districts certainly must be considered “safe” districts” for the incumbents. Generally, a “safe district” is one in which the winner receives 67% or more of the votes cast for that office.   Surveying the rest of the PA Congressional districts during the last three Congressional elections where the district lines have not been changed during this period, (2012, 2014, and 2016), the results are not really surprising.  Nationwide, during the 2012 election, 90% of the incumbents running for office were re-elected, and in 2014, 95% of Congressional incumbents were re-elected (despite the 11% rating that Congress received in the polls), In 2016, when the White House changed hands, 97% of all Congressional incumbents were reelected.

In PA, for election year 2012, the last year there were contests for all 18 Congressional seats, the Republican candidates for Congress in PA won 49% of the total vote for Congressional Candidates, but they received more than 72% of the Congressional seats, 13 out of 18.  How did this happen?  In Districts 1, 2, 13,14, and 17, the winning Democrats received between 60.5% and 89% of the total votes cast in those districts, while the winning Republicans in the rest of the districts between 51.8% and 65.9% of the total votes cast in those districts.

In 2014, two of the districts had no general election contests, that is, there was no opponent on the ballot, District 14 (no Republican) and District 18 (No Democrat).  Obviously, that resulted in at least some under-votes, that is, persons not voting for any Congressional candidate in that district, preferring to leave a blank on the ballot rather than vote for the unopposed candidate of the other party.   It is troubling to think that more than 11% of the seats for Pennsylvania Congressional delegation were uncontested that year. In 2016, there were 3 unopposed candidates, 1 Democrat (District 13), and 2 Republicans, Districts 3 and 18, leaving more than 16% of PA Congressional district elections without a contest.  Assuming this state of affairs resulted in more under-votes for the Democrats, they still collected 46% of the total vote for Congress, while securing less than 28% of the Congressional seats.

  However, despite what appears to be an obvious advantage to the Republicans, why might they be willing to end the practice of gerrymandering in PA?  The answer is:  if you have a relatively “safe seat,” that is, one which the opposing party is unlikely to win in the next election, your party leaders have the whip hand over you.  Assuming that most candidates run for office to do good for their constituents, even the ones who didn’t vote for them, if they refuse to toe the party leadership’s political line, that is, if they try to be independent and vote their consciences, they are likely to be “primaried,”  that is, their own party recruiting and supporting a candidate who will do their bidding, and having them run against the incumbent in the next primary election.  So, what happens is that local issues and concerns get ignored, and every election is more and more about national issues. The parties get more and more polarized as the Congressional representatives strictly follow their party leadership, and gridlock occurs in Washington.

How this situation came to be and what can or should be done about it is the subject of my next article.

 

What’s Wrong with PA Voting Districts?– A Brief Introduction to Gerrymandering

Posted on by Barbara J. Shah

For those of us who live in Pennsylvania, are U. S. Citizens, and register and vote in elections, unless you are really savvy, you probably don’t know the numbers of the legislative and Congressional districts you live in, your state representative and state senator, or your Congressman or woman.  Even if you do know who these people are, it’s a safe bet you don’t know the outline of the district that person represents.  And if you’ve been around for a while, it’s also a safe bet that the size, shape, and number of these legislative districts have changed in the past 15-20 years.  Why do they change, and who is in charge of drawing these district lines?

 Let’s talk about U. S. Congressional Districts first.  About 100 years ago, although the Constitution itself doesn’t say how many Members of Congress there are supposed to be, the total number was set at 435.  There are always 2 senators from every state, so that does not change, unless a new state is admitted to the union.  The Constitution does require that all the 435 members of Congress should represent approximately the same number of people, uniformly across the country. Every 10 years, there is a census taken, and population shifts or population growth is determined.  For the most part, northern old industrial states have been losing population, while Western and Southern states have gained population.  That means that congressional seats must be “reapportioned” among the states.  After the 2000 Census, PA lost 2 representatives, and after the 2010 census, it lost 1 additional representative; these seats were shifted to states with a population growth.  PA now has 18 congressional representatives.

So, under the Constitution, it is the duty of Pennsylvania to “reapportion” the PA Congressional districts to reduce the number of Congressional districts in accordance with the census and redraw the lines.  However, the Census also illustrates shifts in population within PA.  Generally, Western PA has been losing more population than Eastern PA, so the 3 Congressional seats which have been eliminated over the past 17 years have all been from Western PA.  The U.S. Constitution is not specific as to how states reapportion or redraw their district lines, leaving it up to the states.  So, in PA our Constitution leaves it up to the state legislature.  Not surprisingly, they have become “creative” with drawing those boundary lines.  When the PA State legislature was dominated by Republicans after the 2000 Census, they created a wide-ranging and weird-shaped Congressional boundary line, for example, when they redrew the 19th Congressional district lines to pit two popular Democratic Congressmen against each other (Mascara and Murtha). Then after the 2010 Census (and Murtha’s death) they redrew the lines and put a large portion of his district into the 12th district, which was then won by a Republican Keith Ruthfuss.  Much of the rest of it was incorporated into a long, thin 18th district which is represented by Republican Tim Murphy.

The numbers of voters in the district are fairly uniform, but through “packing,” the legislators draw voting districts where, say, 90% of the voters are Democrats, and other districts where the Republican dominate, by, say, 53 or 55%.  Alternatively, they may pursue a tactic of “cracking,” that is, they split up heavily Democratic areas into smaller sections and combine each of them with rural Republican areas to dilute their voting effect.

As a result, although PA voters generally vote, say, 51% Democratic and 49% Republican (or in the reverse as in the last Presidential election), there are 5 Democrats and 13 Republicans in the PA Congressional delegation.  This is not to imply that this is only a Republican tendency – in places where Democrats dominate the state legislatures and the legislatures determine the Congressional district boundaries, they have done the same.

The term “gerrymander” (pronounced “Jerry-mander”) was introduced into the language more than 200 years ago, when this technique was used by former MA governor Elbridge Gerry to produce a district shaped like what news organizations compared to a salamander; they then began calling it a “gerrymander.” PA, having weak election and contribution disclosure laws, has been a prime example of gerrymandering for the country.  Should something be done about this?  What can be done about this?  Does it make a difference if you are a Republican or a Democrat?  More on that in the next article.

By Barbara J. Shah, Esquire

Barbara

 

My Spouse Left Me – Now What Do I Do?

Posted on by Kristen Anders Bojarski

I recently wrote an article that offered some guidance for the financially dependent spouse who wants to get out of an unhappy marriage. I talked about taking money out of the joint bank account, taking the kids, and filing for support.  But what do you do when you are on the other side of that scenario?

We’ve all heard this story.  It has happened to someone we know, an old friend or maybe a distant relative.  It goes like this: Some poor, unsuspecting chump gets up in the morning, kisses his wife and kids’ goodbye then goes off to spend the next 8 hours or so at his job like he does every other day.  But when he walks into his house at the end of that long hard day, he finds that the house is eerily empty and quiet.  The furniture is gone. The wife and kids are nowhere to be seen.  Even the cat is gone.  He instantly feels panicked and fears the worst.   Were they robbed?  Where was his family?  He runs upstairs to check the bedrooms.  The children’s rooms are mostly empty of furniture, clothes and toys.  That’s odd.  Why would a burglar take some dirty old kids clothes?   He runs into the master bedroom.  His wife’s clothes are gone, but his are still there hanging in the closet.  The bed is gone but his dresser remains.   With a sinking feeling, he walks into the bathroom off the master bedroom.  His wife’s things are missing.  Not even a toothbrush is left.  But his toothbrush is right where he left it that morning along with his other belongings.  At this point, the truth hits him like a crushing blow.  It is worse than being robbed.  His wife left him and she took the kids.

But why?  He thought they were happy. They had some troubles, sure, but so does every married couple.  How could she do this to him?  The kids?  This can’t be happening!  The next thing he knows, some big guy who looks like a cop is knocking at the door to serve him with a complaint in divorce and an order scheduling a hearing on child support and APL/spousal support.

Talk about your worst nightmare.  Unfortunately, I see this scenario happen every day.  When it does, it is often a complete shock.  This is something that only happens to other people, right?  Whether you genuinely believed your spouse was happy, or failed to see the signs that now seem so obvious in hindsight, it has happened to you.  Now what?

First, set up a meeting with a divorce lawyer.  Ask friends and family for a referral.  Next, do a little damage control and prevention.  Change the locks to the house. You don’t want your spouse coming back to the house when you are not there to take what little furniture you may have left or rifle through the legal documents your lawyer sends you.  If her name is on the deed, she is legally allowed to access the house, but changing the locks is often a good deterrent.

If you have joint bank accounts, close them.  Especially if your paychecks are being deposited into them.  Close all credit cards on which your spouse is an authorized user, even if it means you must agree to pay the balance.  Change all passwords to all password-protected accounts.  This includes, but is not limited to, your Apple or other phone accounts, emails, bills, online banking accounts, passcodes to all devices, etc.

Next, get your papers in order and prepare for the meeting with your lawyer.  Your lawyer will need to see tax returns and other pay information, statements on retirement accounts, investment accounts, etc.  If you were not the one in the marriage who handled the finances, now is the time to educate yourself on these matters.

When you have your initial meeting with the lawyer, talk to him or her about custody.  When your children are used to seeing you every day, it is extremely important to maintain regular contact.  Did your spouse take the children out of state, or move so far that it will prevent your ability to exercise your custody rights?  If so, your lawyer will need to immediately seek special relief from the court.  If not, you will want to file a complaint for custody in the county the children have lived in within the last 6 months.   Most counties in PA have a long and drawn out custody process.

In Allegheny County, we have the Generations Program which requires both parents (and children if they are old enough) to attend an Education session, then a Mediation session.  Mediation is scheduled 4-6 weeks after the initial custody complaint is filed.  If an agreement isn’t reached at mediation, then the parties attend a Generations Conciliation which is scheduled 4-6 weeks later.  If no agreement is reached there, then in another 4-6 weeks, another conciliation takes place, this time with the judge.  After that, another conciliation might be scheduled, but eventually the last stop is a custody trial.  The courts force people to go through these steps because they want parents to make their own decisions about their own kids, and it is very traumatic for parties and children to go through a custody trial.  Some cases are not possible to settle (Is your spouse a narcissist? If so, you may as well schedule a trial date), but most cases settle at some point during the process.  If your case ultimately goes to trial, expect it to take about a year for your custody case to be finalized from start to finish. If you ultimately settle at a conciliation, it will still take months.  Since it will likely take a long time to get a final custody order, ask the court for an interim (temporary) custody order.

If you do not have an agreement or interim custody order that enables the children to see you on a regular, if not equal basis, then a status quo custody situation is created.  Judges love to keep the status quo intact when the kids seem to be doing OK.  It’s safe.  Make sure that you are part of the status quo.

              Finally, make sure you are taking care of yourself.  You’ve just gone through a terrible shock.  You likely feel stressed, depressed and anxious about the future.  Don’t worry.  You can (and will) get through it if you help yourself.  Eat healthy and exercise.  Try to get the appropriate amount of sleep.  Don’t hesitate to get into counseling if needed.  Do whatever you have to do to get your mind right.  You are going to be making decisions about your children, finances, etc. that will affect you for years to come.  You must be able to make these decisions based on logic rather than emotion.

Your wife, furniture and cat might be gone forever, but if you follow these steps, you are on your way to maintaining a loving relationship with your children and protecting your assets.  This does not have to the tragic end to your story.  In fact, it is not the end of your story at all.

It is a new beginning.

Understanding the Legal Challenges to President Trump’s Executive Orders

Posted on by Barbara J. Shah

          For most Americans, news reports regarding the lawsuits filed and legal challenges made to President Trump’s executive orders are confusing. Is a President permitted to make decisions on some matters and issue an executive order without Congressional approval? If so, what kinds of matters are they, and are there any rules a President must follow when issuing executive orders?
Let’s use the example of President Trump’s executive order banning travel from 7 middle eastern countries to the U.S. which has caused so much controversy and so many court battles. The government lawyer’s position is that this order concerns a question of foreign affairs, and that this is an area that Congress has already delegated the authority for the President to make determinations regarding foreign affairs. As a result, the government lawyer argues that the U.S. courts have no authority to look behind the President’s determinations. This is strictly within the President’s authority.
At the hearing in Seattle on the lawsuit brought by the States of Washington and Minnesota against this executive order, Federal Judge James Robart stated that the executive order has to be rationally based, i.e. grounded in facts as opposed to fiction? and that he did have the power to make the determination.
Jeffrey Rosen, the President and CEO of the National Constitution Center in Philadelphia, was recently interviewed by National Public Radio, where he was asked if this was correct, whether the President was constitutionally required to issue orders which must pass Judge Robart’s “fact or fiction” test. Rosen responded that this was correct, that the U. S. Constitution requires that all laws be rational, even when they are in response to the most dramatic challenges relation to national security. He pointed to the famous (many consider infamous) case of Korematsu v. the U.S., the law which required the internment of Japanese-Americans shortly after the beginning of World War II. Even in that case, the justices of the Supreme Court were required to consider the judgment of the U. S. military that Japanese-American citizens posed a threat to the U.S. They did uphold that judgment, despite a fiery dissenting opinion by Justice Murphy that the actual “evidence” presented by the government was “made-up justifications.” In the same case Justice Robert Jackson said that for a court to sustain unconstitutional orders under the guise of assuming that they’re reasonable is like a “loaded gun” which would legitimize racial discrimination.
In the Korematsu case, it turned out, the government failed to disclose a naval intelligence report which said that Japanese-Americans posed a minimal risk which could be handled individually, so all of the facts were not presented properly to the court. Looking back in American history, going back to the blowing up of the battleship Maine in Havana Harbor to the Gulf of Tonkin incident during the Vietnam War to the nuclear weapons that Saddam Hussein was supposedly developing, the NPR interviewer asked Rosen if the court second-guessed the government, would the court in effect be taking control of U.S. foreign policy? Rosen responded that that was a legitimate concern, but the executive order must still pass some constitutional test, and the key test of constitutionality is, is there some basis for them in fact? The government is required to show facts which explain the rational basis for the order. If the Supreme Court justices concluded that there was no rational reason for President Trump to choose these seven countries to exclude travelers from, Rosen said he could imagine both liberal and conservative justices of our Supreme Court might vote to strike the order down.

It’s going to be interesting to see what happens

How to Take Those First Steps Towards Leaving an Unhappy Marriage

Posted on by Kristen Anders Bojarski

It is January, which is affectionately known by family law lawyers as divorce season. More than any other month, internet search engines experience a surge of people searching for information relating to divorce.  Divorce is a life changing and often traumatic event in one’s life; the very thought of leaving behind the life you’ve known can be overwhelming.  How are you supposed to make a decision that will substantially impact you, your spouse, children and even extended family members without first consulting the internet?  As a compulsive googler myself, I understand the lure of a free and anonymous internet search, especially when you are desperate for answers about something.  But I can tell you that the internet does not have all of the answers you need to make informed decisions.  Only an experienced and capable family law lawyer can do that after meeting with you and learning the facts of your unique circumstances.

When I first meet with a client who is considering leaving an unhappy marriage, they often don’t know where to start for fear of unknown consequences. This is especially true of the financially dependent spouse. They don’t know if they can afford to go out on their own, especially with young children. They fear giving up their rights, or financial or custody-related retaliation by their spouse.  When I’m feeling overwhelmed, nothing eases my anxiety better than coming up with a well-thought out plan to attack the problems I’m facing, and that is what I help my clients do.   If you are in an unhappy marriage, but have no idea where to start, this quick and general guide to taking those first steps is for you:

Divorce – to file or not to file? In some cases, however, it does make sense to file for divorce right away. It depends on the circumstances. Make sure to talk to your lawyer about your options.

When I meet with a client for the first time, one of the first things I decide is whether to file for divorce right away. For a financially dependent spouse, it is generally better not to file for divorce right away, and this can be for several reasons. For instance, once you are divorced, you cannot be covered under your spouse’s health insurance any longer. Finding affordable healthcare, even through employment, is a common problem. In those cases, if makes sense to delay the divorce for as long as possible to keep health insurance coverage.

Money – If you are not working outside of the home, do you have education or skills that will enable you to get a self-supporting job? If not, will child and spousal support (if applicable) be enough for you to live on, maybe with a part or full-time minimum wage job, on a temporary basis? Come up with a budget and stick with it as best you can. If you do not have the skills or education to support yourself, now is the time to come up with a plan to become self-supporting. Child support doesn’t last forever, and alimony usually doesn’t either. Think about what you are interested in. Look into the programs offered at the local community college. See what job training is available in your area, or even look into that graduate program you put on the backburner to start a family.The next thing I talk to my clients about is their income situation. If you want to leave your marriage, you must first take a long and hard look at your finances as this will determine where you (and your children if you have any) will be able to live when you and your spouse separate. Do you want to stay in the marital residence? Can you afford the mortgage, taxes, insurances, rent, etc. based on what you earn? If not, will you be able to afford to live in the house, with spousal and child support (if you are entitled to receive them) to supplement your income or lack thereof? In many cases, both incomes of the parties are needed to make the monthly mortgage payment.

Decide where to live – If remaining in the marital residence is not an option, either financially or legally, you should strongly consider staying with family or friends. Moving out of the marital residence does not mean you give up your legal rights to the marital residence. Whether you live there or not, you still have an interest in the property meaning any equity will be distributed in some way once the marital assets are divided later on through the divorce process. This is a question I get asked all of the time.

The children’s school district is also a major factor to take into consideration for most cases where shared custody is going to be an issue. If you can’t afford to live anywhere else but with family, and your family lives so far away that it would be difficult for your spouse to exercise custody rights, do not make any moves without consulting a lawyer first.

Once I help my client analyze their income and budget, I help them decide where they should live. Once you’ve done the same analysis, can you afford to reside in the marital residence? If so, is your spouse willing to leave? If not and the deed to the house is in both names, you can’t just kick your spouse out. There are ways to gain exclusive possession of the marital residence (a topic for another day), but it is usually easier and cheaper to move out of the marital residence yourself.

The move If this is not an amicable separation, or domestic violence is an issue, then I suggest moving out without telling the other spouse. You should still schedule the moving date, and have people to help you, but wait to move until your spouse is at work or out of town. Take whatever furniture, household goods, Christmas decorations, heirlooms, etc. that is important to you and/or will be necessary to set up a new home for yourself and/or your children. You may feel guilty pulling a surprise move like this, but if it will avoid a major conflict, or someone getting hurt, it’s worth it. If reaching an amicable custody agreement is not possible, and you are the primary caretaker of the children, take them with you when you leave.

This may induce your spouse to file a complaint for custody, but don’t be alarmed by that. If that happens, the courts won’t automatically hand your children over to your spouse, assuming that the children are not in danger in your custody. It just means that you and your spouse will go through the court process to establish a custody order, whether by agreement or court order, that is hopefully best for your children.

Once you figured out your finances, and have decided where you are going to live, the next step is to plan the move. Schedule a move-in date and enlist family and friends to help you. Is this an amicable, mutually-agreed upon separation? If so, try to reach an agreement with your spouse ahead of time as far as how the furniture and household goods are going to be divided. If you have children, it would be ideal if you and your spouse could come up with a custody arrangement prior to moving.

File for child and spousal support Right before you move out of the marital residence, see if you can withdraw funds from joint bank accounts, CD’s investments, etc. Don’t feel bad about it; you have to support yourself, you are entitled to joint funds; besides, and any funds you take will just be considered as an advance to you later. While anyone can file a complaint for support at the Domestic Relations Section of the court in their county, you should not go to the support conference/hearing alone. Hire an attorney to represent you.

Immediately after you move out of the house, file for child and spousal support if you are entitled to it. In Allegheny and Washington counties of PA where I practice, it generally takes 4-6 weeks after a complaint in support is filed for a support conference/hearing to be scheduled, and then up to another 30 days after the court date for the wage attachment to take effect. For that reason, plan to not have any support monies for about 2 months.

Help your childrenIf your children are struggling, seek counseling for them or reach out to the guidance counselor at school for support. Be patient. While the adjustment to their changed lives may take some time, it’s worth it for the children to come home from school to a happy, tension-free home each day.

Once you separate from your spouse, help your children with the transition. Talk to your children, help them understand what is happening and encourage them to confide in you about their feelings. Never speak badly about your spouse to the children; it will make them feel awful. Instead, assure them that they are loved by both parents and that the separation is not their fault. It is true that children are resilient, but the transition will be a lot easier for them if their parents can be civil.

Decisions on when to file for divorce (if you and your attorney decide to wait), how to split assets/debts, permanent custody arrangements, etc., will come later. For now, I hope this general guide helps you to come up with a sound, logical plan towards making that huge decision to leave an unhappy marriage.  When you are ready, or you are feeling overwhelmed, meet with a family law attorney.  He or she will help you come up with a plan so that you can be prepared to take those first steps.

To Sue or Not to Sue…..That is the Question

Posted on by Barbara J. Shah

In Pennsylvania, the civil court system is the system which Pennsylvanians use to sue another person, business, or groups of persons, to get an award of money damages for wrongful actions (as opposed to the criminal court system, in which the Commonwealth brings actions against members of the public for breaking its laws). The civil litigation system is divided into three sections, the local magistrate courts, Common Pleas Court arbitration, and Common Pleas Court. Magistrate complaints are generally filed by members of the public in person, by going to the magistrate office; in most cases, both plaintiffs and defendants represent themselves at these cases. The limit of jurisdiction is for money damages of $12,000 or less. The second level, Common Pleas arbitration, is for money damages up to $25,000 (or $40,000, depending upon the type of case). Common Pleas arbitration complaints may be filed by individuals, but the rules governing the filing, answers, and hearings on these cases are much stricter and must be followed. Lawyers are more often involved in filing and trying Common Pleas Court arbitration cases. Common Pleas Court cases above the arbitration limits are almost always filed by lawyers and defended by lawyers. There is no limit to the money damages which may be sought in Common Pleas Court cases.

 

When a civil case is filed and decided at the magistrate level, if either party is dissatisfied with the outcome, they have a right to file an appeal to Common Pleas arbitration within 30 days. If the Plaintiff (the party who filed the lawsuit) is unhappy with the magistrate decision, he or she must file a complaint in the proper form at the time they file their appeal. If the dissatisfied party is the Defendant (the party who was sued in the lawsuit), when their appeal is served on the Plaintiff, the Plaintiff must file a complaint in the proper form within 20 days. Failure to file an appeal from a magistrate’s decision you as unhappy with within 30 days is an absolute bar to filing another lawsuit on the same issue at a later time. The tricky issue is when both parties have claims against each other at the magistrate’s hearing, and there are two judgments entered, one relating to each separate claim. If you are dissatisfied with how the magistrate ruled on your claim, and the opposing party files an appeal of the magistrate’s ruling on their claim, you must also appeal the magistrate’s ruling on your claim; the cases will be consolidated, but if you don’t appeal, you lose your right to make that same claim in the Common Pleas case.

 

When there is an appeal of the magistrate’s decision, the case is tried all over again in Common Pleas arbitration. The arbitration hearing is conducted in front of a panel of 3 lawyers; no judges are involved. Neither the testimony, the evidence, nor the result in the magistrate court has any effect at all on the Common Pleas court arbitration panel’s decision. In fact, you are not even allowed to mention what happened at the magistrate’s level in the Common Pleas case. The rules for the conduct of the Common Pleas case are much stricter; no hearsay testimony is permitted, and no documents may be submitted into evidence without the person who prepared the document there to testify about it. (There is an exception to bills and estimates of damage, but they MUST be submitted to the other side at least 3 weeks before the arbitration hearing.)

 

Finally, any party who is dissatisfied with their Common Pleas Court arbitration panel ruling may appeal to Common Pleas Court within 30 days and request that the case be heard by a judge or a jury. Again, if this happens, nothing that happened at the magistrate or arbitration level is relevant to the Common Pleas Court trial. It is a “de novo” (all over again) trial. After trial in Common Pleas Court, however, there are no more “de novo” trials. Anyone who is dissatisfied with a common Pleas Court judgment must file an appeal to the Superior Court, order the transcript of the hearing, and file a brief (legal argument) explaining the errors made by the court at the Common Pleas Court level which brought about a mistaken judgment. This is a very difficult burden to prove, and as a result most appeals are not granted.

 

We at Shah Law Group know that litigation is rarely the best, fastest, or most cost-efficient manner in which to resolve disputes, and we recommend that clients take the time to explore and discuss their options to in-court resolution of their disputes. We are always looking for creative solutions to client issues, to avoid litigation. When out-of-court resolution of issues cannot be accomplished, we work towards making the litigation process as cost-efficient as possible. However, our experience has taught us that the only way to achieve success in litigation is with thorough preparation; this is never cheap.

I WANT A DIVORCE! (OR DO I?)

Posted on by Barbara J. Shah

Most people have heard the old saw, “Marry in haste, repent at leisure.” Surprisingly enough, there are those who divorce in haste and repent it later. Pennsylvania is one of the last bastions of the long wait for a divorce, when one spouse resists it. In the absence of consent, the waiting period prescribed by PA law is 2 years from the date of “final separation,” which is defined by PA statute and caselaw. If both parties consent to the divorce, the waiting period is 90 days, pretty much in line with the rest of the country. When I started practicing law in the early 1980’s shortly after the passage of the PA Divorce Code of 1980, the waiting period was three years! That was reduced to 2 years by an amendment to the divorce code in 1987. There are numerous calls to reduce the 2-year waiting period, to 18 months, one year, or even 6 months, and bills to lessen the waiting period are introduced every session, but so far none of them has gained traction in PA’s bloated legislature. There is no question that the Catholic Church has had an influence on PA divorce legislation in the past; whether that will continue in the future is uncertain. However, the central part of PA is very conservative, so I wouldn’t bet that the law is going to change very soon. In fact, I hope it does not.

Why should people be forced to wait such a long time if they want to move on with their lives? The answer is elusive, but here is my point of view on the subject: People enter into marriage with the implicit and explicit understanding that this union of two people is forever; two bodies, one soul, one family unit. Many stresses occur which may cause the union to falter, but are or should these stresses be fatal to the marriage? Mind you, I am not one of those people who would have supported the continuance of PA’s fault-only divorce which existed before 1980. That led to all kinds of perversion of the law which weren’t good for anyone. However, what is wrong with a 2-year wait for a “no-fault” divorce? It is a great cooling-off period which gives the parties time to reflect and make sure that a divorce is really what they wanted. Does he or she have a hot-and-heavy relationship with another that may cool during this 2-year wait? Well, then, that relationship is not one for the ages. Well, what if your spouse is a real louse, abusive, etc.? There are several answers. First of all, just separate. Move out. If your spouse makes more money than you, file for support. If you make more money than your spouse, you have a defense to spousal support – abuse! Getting a divorce cuts you off from your spouse’s health insurance; in the past, before the ACA, that was extremely important, sometimes crucial, if you had a pre-existing condition. Second, PA still has fault divorces; if you really want a divorce and you have grounds for a fault divorce, (and a divorce makes economic sense to you), go for it! However, let me suggest that you use at least some of the 2-year “cooling off” period thoughtfully provided for PA citizens by its legislature. I won’t say that a high percentage of our cases reconcile during this period, but we’ve seen some amazing turn-arounds, some from sobriety, others from counseling, and others from the parties living apart realizing that the grass may really not be greener on the other side. Even infidelity sometimes turns out to be forgivable, under the appropriate circumstances.

Divorce may end up being the best option, but other options should at least be considered. Don’t rush into a divorce blindly in a fit of anger; it may lead to a lifetime of regret.