Family Law

DIVORCE AND CHILD SUPPORT

Divorce often raises the question of child custody and child support. According to the United States Census Bureau, in 2009, there were 1,100,401 children in the United States living with a parent. Only 13.5% of all children living with divorced parents live in the Northeastern United States. Of all children living with a divorced parent, 75.3% lived with their mother.

Child custody and support is also an issue for children born out of wedlock. According to the United States Census Bureau, in 2008, 40.6% of all children born were born to unwed mothers. In 1990, 28% of all children were born to unwed mothers. Out of all households, 29.5% were single-parent homes in 2008. This is only a slight increase since 1990, when 24% of all households were single-parent homes.

In addition to the emotional stress of divorce, both persons may have to engage in a lengthy, complex, and potentially expensive legal proceeding. The first determination that must be made is whether or not the divorce is being sought on fault or no-fault grounds. 

While the fault determination does not impact the final distribution of property in Pennsylvania, it is important in determining when divorce may be pursued. Some examples of fault grounds are adultery, cruelty, and insanity. No-fault is possible where there has been an irretrievable breakdown of the marriage or both parties consent to the divorce. There are separate “waiting” times to begin fault divorces, consent divorces, and irretrievable breakdown divorces.

Once the determination of fault has been made, the marital and non-marital property must be divided. This can be done by agreement or by the court. 

This process is known as equitable distribution. The only property that is not subject to equitable distribution is non-marital property. 

Non-marital property is property owned by one spouse before the marriage began and any inheritances or gifts received by a spouse during the marriage. Gifts made by one spouse to the other during the marriage are also non-marital property. All other property acquired during marriage, including employment pensions and insurance policies, is subject to equitable distribution. Debts incurred during the marriage, including credit card debt and mortgages, also must be divided.

If there are minor children that are born in the marriage or children who are biologically or legally the children of both spouses, then custody must be determined by the spouses or by the court. 

Custody determinations are to be made in the best interests of the child. Custody refers to both physical custody and legal custody. Physical custody refers to the place where the child lives, while legal custody refers to which parent makes decisions for the child. Sole custody means that one parent has complete physical and legal custody. 

Joint custody means that both parents share physical and legal custody. There is no legal presumption that either the mother or the father is the best situation for the children. Rather, custody is determined on a case-by-case basis. 

However, mothers are much more frequently awarded sole or primary custody. If possible, courts will award joint custody, meaning that both parents have an equal voice when making decisions for the child and have the right to have the child live at the home. Moreover, courts will take the child’s wishes into consideration, especially the wishes of older children.

In addition to property distribution and custody determinations, divorce also raises the issue of financial support. If spouses have dramatically different incomes, an award of alimony may be granted. Until the divorce is final, a court may grant alimony pendente lite. 

Typically, alimony is only a temporary award and is designed to allow the recipient to reenter the job market. Alimony carries special tax consequences for both the payor and the recipient. Once the recipient begins living with a member of the opposite sex, his or her right to alimony ends. Another reason that alimony can be modified or nullified is a material change in the financial circumstances of either party.

Unlike alimony, child support lasts until the child reaches the age of majority. In some cases, child support payments may be awarded past the age of 18. Child support payments are determined using a formula that takes into account several different factors. 

If circumstances change dramatically, the support award may be modified. Because it is the right of the child, not of the custodial parent, to receive the support, the custodial parent’s living arrangements are irrelevant. Pennsylvania has strict guidelines and enforcement tools to ensure that child support is paid. Child support is available regardless of whether or not the child’s parents were ever married.

If you are considering a divorce, there are many legal issues that you must be aware of. In addition to the emotional pain of a divorce, the divorce process can add financial and legal stress to your life. 

Child custody and child support are related issues that can be just as confusing and emotionally stressful as divorce. A skilled attorney can help guide you through the process. The legal team at Behrend and Ernsberger, P.C. has the experience and skill necessary to help you in your divorce- call us today at (412) 391-2515.

PRENUPTIAL AGREEMENTS

A prenuptial agreement (pre-nup) is a commonly used legal device which can make the divorce process less time consuming and perhaps less painful. A pre-nup is a binding contract. Soon-to-be spouses can specify how property will be divided, if and how much alimony will be provided, and how custody arrangements will be determined. Child support can be specified, as well, but child support is dealt separately from the rest of the pre-nup. Occasionally, the financial standing of the spouses may change dramatically over the course of the marriage. In this event, the pre-nup likely will not be enforced, although a well-drafted pre-nup could address this situation.

To enter into a pre-nup, both parties need to be given full and fair disclosure of the assets of the other person. It cannot be sprung upon the other spouse in an unfair manner. For instance, one spouse cannot present a pre-nup to the other on the morning of the wedding. Finally, both parties must record the pre-nup by notarization.

Spouses may also enter into a postnuptial agreement (post-nup), which can cover the issues as the pre-nup, except that it is entered into after marriage. A post-nup can supersede a pre-nup and address new or changed circumstances that the pre-nup did not address.

Pre-nups and post-nups are contracts that cover a wide variety of subjects. They can be very complicated documents and will address some of the most important things in your life, including your children. Therefore, it is essential that you have the assistance of an attorney to help draft a complete and correct pre-nup or post-nup. You will probably have many questions as you sit down to think about a pre-nup or a post-nup. The legal team at Behrend and Ernsberger, P.C. has the skill and experience necessary to help you get the best pre-nup or post-nup possible- call us today at (412) 391-2515.

PROTECTION FROM ABUSE ORDER (PFA)

A Protection from Abuse Order (PFA) is available to victims of domestic abuse by a spouse or other sexual partners or by a parent. The PFA prevents the abuser from initiating contact with the victim for up to three years and can force the abuser to move out of a jointly shared home. If the abuser and victim are the parents of children, the victim can also receive custody of the children under a PFA.

The alleged abuser has the right to a hearing, at which time the abuser may be represented by an attorney. The defendant in a PFA action could face jail time if he or she violates the PFA, so it is a very important hearing for both the victim and the abuser. Moreover, the PFA hearing can address possession of a home and child custody. Therefore, both sides of a PFA hearing should have an attorney.

PFAs may also be granted on a temporary or emergency basis. An emergency PFA can be granted by a magisterial district judge when the courthouse is closed. Your local police department can assist you in finding the appropriate magistrate. A temporary PFA is granted and covers the time between the filing of the PFA and the date of the PFA hearing.

Because of all of the issues and emotional stress that is involved in filing or defending against a PFA, it is best if you have a good attorney. An attorney can help explain what is at risk and what the result of a PFA will be. 

Additionally, an attorney can argue before a judge why the PFA should or should not be granted. The legal team at Behrend and Ernsberger, P.C. has the skill and experience needed to help you through this difficult time- call us today at (412) 391-2515.