By knowing the factors that influence court decisions, you can better prepare for your divorce. Knowing the law in terms of asset division, property distribution, custody, child and spousal support, allows for divorcing people to be confident in the process and be assured that the settlement agreement is fair.
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Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speakers: Family Lawyers – David L. Ladov and Robert I. Whitelaw. David L. Ladov is a partner and co-chair of the Family Law Group at Obermayer Rebmann Maxwell & Hippel LLP. He focuses his practice on divorce, including custody, child support, equitable distribution, abuse and domestic relations. Learn more at www.obermayerfamilylaw.com.
Robert Whitelaw is a managing partner and co-chairman of Obermayer Rebmann Maxwell & Hippel LLP’s Litigation Department and Family Law Group. He has 40 years of experience in practicing family law. Robert can be reached at email@example.com or (215) 665-300. Learn more at www.obermayerfamilylaw.com.
From legal professionals the details on divorce laws in Pennsylvania.
David Ladov and Robert Whitelaw also explain the factors and implications that will influence the court decisions.
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Read the Transcript of this Podcast Below.
I’m going to start with Bob, and we’re going to talk about assets first, and how people know what they owe and know what they own.
Whitelaw: What you’re talking about is the discovery process. Discovery is how you obtain information, particularly if you’re a dependent spouse and you don’t know what’s in the marriage or what is non-marital or marital. It is the way you find out from the other side or from third parties. Discovery can be in written or oral form. Written is typically where your lawyer sends a series of questions in writing to the opposing party for them to answer. Those answers or questions are what we call interrogatories. There could also be oral discovery, which we call depositions, where someone deposes the other party or a third party who has information that’s relevant regarding the nature of the assets, the nature of the liabilities, and valuation issues.
After that, either party can obtain experts on their behalf or joint experts to value the assets. If they’re bank accounts and security accounts then you can just get statements, but if they’re antiques, jewellery, real estate, businesses, you’re going to probably obtain particular experts in those fields to value those assets. Pennsylvania is very liberal in its discovery, which means the courts are going to really allow you to do pretty much whatever you need to do to obtain the information to present your case.
And this is just a follow-up question, Bob, but the assumption is that people are going to tell the truth when they’re giving this information and valuing these assets?
Whitelaw: The assumption is that they’re going to be telling the truth. Depositions are taken under oath, so if somebody does not tell the truth they’re subject to the same penalties that they would be subject to if they were testifying in court.
David, what property gets divided in a divorce?
Ladov: In Pennsylvania, the courts say marital property is everything that is acquired from the date of marriage until the date of separation, regardless of title ownership. So for example, if one of the parties has a pension or retirement benefit in their name alone, the portion that is earned during the marriage is marital property. Pennsylvania also considers marital property the appreciation of premarital property or any gift or inheritance that they might receive during the marriage. That’s a little different than some of our contiguous states thatdon’t look at appreciation of non-marital property. We do, and that’s part and parcel of the marital estate.
Bob, is the property divided equally in Pennsylvania?
Whitelaw: Not necessarily. That could happen, but we have what is called equitable distribution, not equal distribution. The statute is equitable, which means equitably – what is fair, what seems fair to the court, what seems appropriate under the facts and the circumstances. So the Divorce Code in Pennsylvania has 11 factors that the court’s going to consider in deciding whether it’s a 50/50 or 60/40 or 70/30. Those 11 factors are the following.
The first, the length of the marriage. The second, any prior marriage of either party. The third is the age, health, station, amount and sources of income, vocational skills, employability, estate liabilities and needs of each of the parties. The fourth factor is the contribution by one party to the education, training or increased earning power of the other party. The fifth factor is the opportunity of each party for future acquisitions of capital assets and income. The sixth factor is the sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits. Factor seven is 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 a homemaker. The eighth factor is the value of the property set apart to each party. The ninth factor is the standard of living of the parties established during the marriage. The tenth factor is the economic circumstances of each party at the time the division of property is to become effective. 10.1 is the subfactors to item number ten, but they are important. That’s 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. The second sub-factor is the expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain. In other words, in terms of the assets being distributed, the court needs to consider the tax consequences and the costs of those assets. And the last factor is whether the party will be serving as the custodian of any dependent minor children. So you can see there are any number of considerations as to what the courts come up with as to how it’s going to divide. And the court’s going to have to explain that in its order.
David, is there one factor or a number of factors that are more important or given more weight when deciding the division of assets?
Ladov: My experience, Dan, is that it depends upon the facts in each and every case. So for example, if you have a situation where there are young children involved, and the mother has stayed home with the kids and continues to stay home with the kids, that factor, the eleventh factor, that the mom is the custodial parent for minor children, becomes an important factor. The second factor that the courts look at a lot is the income or income capacity of each party. So if you have a doctor who’s making $200-300,000 a year and a stay-at-home mom, that’s a very big factor in the distribution scheme. Likewise if the health of one of the parties is not well, that factor in that particular marriage or divorce is going to be an important factor for the court. So it really is fact-dependent upon each and every case, and a good advocate or lawyer is going to expound upon those factors that are going to help his client in that particular case.
So we’re going to move on to talking about custody. So Bob, since a child has two parents, shouldn’t custody be equal for both? Is that how it works in Pennsylvania?
Whitelaw: No, not necessarily. Just as equitable distribution isn’t equal, child custody is not necessarily equal. There could be an equal custody order, but it isn’t necessary. In Pennsylvania, and most states, first of all, there are two kinds of custody. One is legal custody, and the second is physical custody. Legal custody is the right to make important decisions regarding the children, such as where they go to school, where they go to religious training, medical treatment, significant medical treatment. Physical custody is where the children live on a
day-to-day basis. Generally in Pennsylvania, with respect to legal custody the parties pretty much in almost every instance share – a term we often use rather than equal – but they’re going to share legal custody. And it’s highly unusual not to share it pretty much equally, unless the parties are actually unable to speak to each other, unable to communicate; the war of the roses kind of situation. Otherwise they’re going to pretty much share legal custody. Physical custody, the court is going to try to maximise quality time with both parents, but that doesn’t mean it’s going to be equal, 50/50. It could be every other week, it could be five days here and weekends there, it could be anything. Because the
polestar of what the court’s going to do is what we call the best interests of the children. The court is going to look to see what is in the best interests of these children, this child, which is very dependent on the family. And each family can be very different from the next family, which is why it can be very different from one case to the next.
So David, can you tell me a little bit about how does the court determine what is in the children’s best interest?
Ladov: In Pennsylvania under our statute there are 16 factors that the court will investigate and are mandated to look at when making a custody determination. Let me just give you what a couple of those factors are so we’ll give the listening audience an idea as to what to look at.
One of those factors are the parental duties performed by each party on behalf of the kid, or child. So that means what does each parent do for the child or the children. Another factor is the need for stability and continuity in the child’s education, family life and community life. It looks at what we call the status quo of the child; trying to keep the child in a similar situation that they were in before the parties maybe getting divorced as to after. Another factor is – because we’re always asked do the children have any input – and one of those factors is min fact the well-reasoned preference of a child based upon that child’s maturity and that child’s judgment. So there’s no magic age as to when the child’s input would be taken by the court, but it’s based upon his or her maturity and how they state their preference to the court. So yes, it is one of the factors.
And I’m just going to end with what I find is a fascinating factor that was not part of our law before – this recently an act of statute which took in about two to three years ago – which party is more likely to encourage and permit frequent contact between the child and the other parent. So therefore the courts look at who is trying to make sure that the child continues to have a good relationship with the other parent. And that is a real turn in our custody law that wasn’t there before, so I’d throw those four factors out – as I said, there’s 16 of them – but those are ones that I think are extremely important when presenting your case to the court. And obviously depending upon your fact situation you’re going to
emphasise those factors that are going to be important and where you think there’s a difference between one party and the other party.
Right. Bob, should the parent who was the primary caretaker become the primary custodial parent?
Whitelaw: That is a factor that we used to have in our law where the court did consider who the primary custodial parent was. And there was a number of cases that emphasised that. If you read the new statute that David just took some of the factors from you will not find that factor there anymore, unless you look at the last factor, which says any other relevant factor. There was a recent case in Pennsylvania that basically said this is no longer really a factor, it’s something we can look at but it’s obviously not as important as it used to be. Just as many years ago we used to have something called the tender years doctrine, which basically said the child of tender years went with the dependent spouse usually. And that was removed many years ago, but this was what had replaced it and now this is pretty much gone. This just only emphasises, frankly, why, just as you had said with respect to the division of assets in Pennsylvania because there are so many factors, you really need a lawyer to figure out what factors apply in your case and to advocate on your behalf. Likewise because there are now 16 factors under the statute, it behooves you really to have a lawyer learn the facts of your case, figure out which are the factors need emphasis, and advocate upon your behalf.
So David, if a parent wants to relocate to another state, what must they do to take the child with them?
Ladov: Dan, right now this new statute of custody that I was alluding to before has a very stringent relocation provision, in that the party who wants to relocate must now, in writing, give advance notice to the party who’s not relocating, the parent, and tell them “I plan to move” and where they plan to move to, when they plan to move, where the child will be attending school if they do move. And there’s a very specific provision as to the information you must give. Then the parent who’s not moving has the burden or the choice of saying “Okay, I’m okay with that move” or saying “No, I’m not okay with that move”.
And if the parent who’s not relocating is against the move they then have to provide, in writing, that they do not agree to the relocation. Then the parent who wants to relocate must file an action with the court asking permission to allow them to move. If they move without that permission, the courts can easily mandate that the child come back to Pennsylvania or come back to the home county which they had lived in before, and will not hesitate to do so. They can’t mandate that the person come back or the parent come back, but they can mandate that the child come back. And that is often the case, so… again, years ago we would always say to a client “Well, do you think the other side’s going to
object? And how much are they going to object?” and then caution them accordingly. But now the advice is “no, you cannot move unless the other parent agrees or the court gives you permission to go”.
So if a child doesn’t want to go with the other parent, what can people do in that situation to make things work better?
Whitelaw: This is a little more tricky. And lawyers can disagree on this one. The problem here is that to make no effort to get the child to go with the other parent, it could be a mistake, because as you saw earlier, there is a factor now under the Code where you’re supposed to encourage your children to go with the other party. And if you don’t encourage and make an effort it could be detrimental to your custody action. But the problem isn’t that easy. If you have young children it’s a little hard to say that you should be able to make them go or get them to go with the other party. But as they get older – and in some cases when they get bigger, and maybe are bigger than the parent then it can be problematical. And, you know, then the parent may literally be unable to do anything. And probably in that instance the court’s not going to be as concerned or may not be as concerned. But if it’s a younger child I think the parents-, the court is going to be concerned. I think that the best advice a lawyer can give right now is to make every effort you can, so that if this is an issue later on in a court proceeding you can tell the court, show the court, prove to the court, that you’ve made an effort, that you did everything you could, if in that particular situation it didn’t happen. If the visit didn’t take place, the custody didn’t take place, you’ve got-, probably you’ve got to be able to provide to the court why it didn’t happen and that you did make the effort.
We’re talking about just about regular visits, we’re not talking about the child moving to another part of the country or something like that. Just to make sure that parents encourage their children to spend time with the other parent and do whatever is in their power to do to make sure that that happens.
Whitelaw: Yes. We’ve seen many times in many cases where a child won’t go for the weekend or a child won’t go even for the dinner or the child won’t go for the vacation. I mean it happens with some frequency. And maybe the child is afraid of the other parent. Maybe the child’s having a fight with the other parent. Maybe the child is manipulating both parents. But, you know, the advice I would still give to any party who has that recalcitrant child is you need to make an effort and you need to either accomplish it, or if you don’t accomplish it, to be able to demonstrate to the court that you made a valid effort.
So David, can you tell me a little bit about grandparents’ rights in Pennsylvania? Do they actually have any right to have visitation with the children?
Ladov: As a matter of fact, Dan, they do. There’s some, I’ll call them, threshold questions if there’s a family that’s intact. But if a family is going through a divorce grandparents can seek what we call partial physical custody or visitation with their grandchildren. And the court makes the determination, once again, if it’s in the best interest of the child or children to see the grandparents. They can get an order that so provides for it. And it doesn’t matter if one of the parents doesn’t want it to happen; the court has to make an independent determination that it is in that child or children’s best interests to have time with the grandparent or grandparents. So yes, in Pennsylvania there is specific grandparent provisions in our custody statutes.
So we’re going to move on to the next subject that we want to cover, and that is support. Bob, can you tell me, if a party did not work during the marriage – and this is spousal support; is that what it’s referred to in Pennsylvania?
Whitelaw: In Pennsylvania spousal support is what is paid usually prior to a divorce action. You can be separated and a party can bring an action for spousal support. Or during the pending of a divorce action it’s sometimes called spousal support, but it’s also often called alimony, pendente lite, the Latin for alimony pending the action. And then once a divorce action is completed, if there’s continuing obligations towards the other spouse it’s called alimony.
So if a party did not work during the marriage, are they able to continue not to have to work? Is that how it works?
Whitelaw: That more pertains to child support obligations. Both parties have an obligation to support their children in Pennsylvania. If a parent is a stay-at-home mom and there are young children so that they have to stay at home to take care of their children, they’re probably not going to be obligated to go out and work. And their earning capacity is going to be considered zero. Now I use the word earning capacity because in Pennsylvania the first thing they will look at, the court, in terms of determining a support order for children and for spouse, is they’re going to look at each party’s earnings. But a party may not be earning anything and yet they may have an earning capacity, so the court’s going to look at earnings or earning capacity; particularly if a party’s not working they’re going to look at earning capacity. In some instances they may look at earning capacity even when somebody has earnings, because the court and the lawyers may argue that that person is underemployed; had a better job and purposely took a low earning job to reduce their support obligation; and therefore they should be measured by their earning capacity as opposed to their earnings.
Getting back to this question though, if the children are in first grade or going up to high school, then I think… and a party hasn’t worked for a long period of time, I think a court is going to assess an earning capacity. They’re going to look into the background, the education, training, prior employment history, of the party who was not working and they’re going to assess some type of earning capacity. It may be a minimal capacity, it may be more than a minimal, but in that case they’re going to assess earning capacity. That doesn’t mean that the party has to go back and work, but that means that it’s going to affect how much support they get which may force them to go back to work.
Right. Now David, is child support based on the needs of the children or child?
Ladov: No, not necessarily. What Pennsylvania has, and many other states have, are grids or guidelines, and these guidelines are based on what is called income share models. And what that means in English is that there are statistical analysis as to families spend certain percentages of their incomes for their children. And these guidelines and grids are in fact reviewed every three years in accordance with federal mandates. And those guidelines are published, they’re available; people have to keep in mind as the incomes change of the parties so would the support change for the child or the children. A child support order today is not necessarily in concrete or stones; it’s going to change
depending upon the income of the parties. And as the incomes increase so will the child support amount increase. But Pennsylvania, like any other states, have these grids or guidelines that are based on percentages of income that is supposed to go towards the children.
So if somebody were divorced now, David, and their former spouse’s income had doubled, what would they do in that case? Would they go to a family lawyer and see what can be done? Would they go to court directly themselves? What would be your suggestions?
Ladov: Well, they have two options. One, they can go online and look at what the guidelines would provide, or they can go to their local domestic relations office in each county and file a petition to increase. They could go to a lawyer and the lawyer, you know, based upon what the party thinks the new incomes are, could do the calculations for them and show them that okay, while you were getting $1,000 a month for two children you may be entitled now to $1,500 a month or $2,000 a month depending upon the incomes.
I see, okay. So Bob, is spousal support based on the needs of the spouse?
Whitelaw: No. It is not. Just as there are these grids for child support, there is basically a formula, a straight percentage, with respect to spousal support. And I’ll give you a quick example to show you how this works. The percentages are if there are no children in the marriage the dependent spouse is going to receive-, the spouse with the lower income will receive 40% of the net income differential between the parties’ income. If there are children involved they’re going to receive 30%. Now I’m going to explain that to you; I’m going to give
you a quick example. Let’s say that the moneyed spouse, the one with more income, makes $4,000 net after taxes – it’s always net after taxes – per month. And let’s say the lesser income spouse makes $2,000 per month after taxes. So the total income between the two of them is 6,000. First, if they had no children what the court would do is they would subtract from the 4,000 from the spouse with more income. So you come out with $2,000 differential. Because there are no children they will simply multiply that by .4, 40%, and that would come out to $800. So the spouse with more money would pay $800 in spousal support to the spouse with less money under that example.
Now let’s say there are children involved. And let’s say the child support determination is $1,000 per month. In that example you would take the $4,000 minus the $2,000, which leaves $2,000, and then you would subtract $1,000 support obligation and you’d wind up with $1,000 left over, and you’d multiply that by 30%, because there’s children involved, which would come out to $300.
So the spousal support order under that example would be $300; a total of spousal support and child support in that example of $1,300 per month. That’s how it works. Very formulaic.
So David, how are the expenses such as childcare, summer camp, you know, extracurricular activities and medical bills handled by the courts?
Ladov: Dan, those expenses are on top of the base child support, and they are shared by the parties in the ratio of their incomes. So using Bob’s example of 4,000 and 2,000 that would be a one-third, two-third ratio. So the parents would be responsible one-third, two-thirds for those kinds of expenses; that’s childcare, summer camp, medical expenses etcetera. So that’s how they’re handled, on top of the base order.
Right. What about gifts, Bob, from third parties to either the parents or the children, are they income for support purposes?
Whitelaw: Under our statute they are not income to be included in any formulas there or any grids, but there is what we call a deviate from the guidelines. There’s a provision under our statute for deviation. Maybe I should put quotation marks around deviation. And there’s a recent case where gifts, especially if they’re regular gifts made regularly during the marriage, can be a reason for the court to deviate up or down in terms of the amount of support. But they’re not technically or mathematically included in the calculation.