Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

In Pennsylvania marital property is subject to “equitable distribution.”  Equitable distribution does not mean equal.  Also, despite common belief, there is no presumption of a 50% - 50% distribution.  The Court will consider the following factors in determining the distribution of the marital assets:

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, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
11. Whether the party will be serving as the custodian of any dependent minor children.

Lastly, contrary to popular belief, fault is not a consideration in the division of the property.  Thus it does not matter why the marriage ended (i.e. one party had an affair or abandoned the home.)  Marital misconduct could, however, become relevant in equitable distribution if one spouse dissipated assets for the benefit of the third party (such as vacations, purchase of jewelry, ect.)   

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Pennsylvania Law starts with the presumption that all real or personal property acquired by either party during the marriage is marital property regardless of how it is titled.   Marital property also includes the increase in value (during the course of the marriage) of any non-marital property.
The Court is thus more concerned with when the property was acquired rather than how the property is titled.

The presumption can be overcome if the property falls into one of the following statutory categories:

1. Property acquired prior to the marriage or property acquired in exchange for property       acquired  prior to the marriage;
2. Property excluded by valid agreement of the parties entered into before, during, or after the marriage;
3. Property acquired by gift, except between spouses; bequest; devise; or descent, or       property acquired in exchange for such property;
4. Property acquired after final separation until the date of divorce except for property                   acquired  in exchange for marital assets;
5. Property which a party has sold, granted, conveyed, or otherwise disposed of in good faith and  for value prior to the date of final separation;
6. Certain Veterans’ benefits;
7. Property to the extent to which such property has been mortgaged or otherwise                       encumbered in good faith for value, prior to the date of final separation;
8. Any payment received as a result of an award or settlement for any cause of action or     claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

 
Property which is not marital property is often referred to as “separate property” or “nonmarital property.” The court only has authority to equitably divide marital property at the time of equitable distribution.

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In January of this year the Pennsylvania Supreme Court issued updates to the Pennsylvania Support Rules and Guidelines.  The guidelines are what our courts use to determine the amount of child support a parent must pay to the other parent or the amount of spousal support one spouse must pay to the other.  The guidelines are required to be updated every four years.  Usually there are only very minor changes.  This year, however, there are some significant changes which will have a profound effect on the calculation of child or spousal support in certain cases.

The most significant change is in the application of the support guidelines to cases where the net household income is in excess of $20,000 per month.  Currently the child support guidelines end when the combined net monthly income for the parties reaches $20,000.  Above $20,000 net per month the parties are considered “off guidelines” and a much more complicated analysis would be performed to determine child support.  The new guidelines now increase that threshold to $30,000 per month.  This increase should provide some much needed uniformity in calculating support for parties who fall into this high income category.  The new guidelines also chang the manner in which the court would determine a support obligation for parties with net income in excess of $30,000 per year.  The change should result in a much more consistent and uniform child support awards in high income cases throughout the state.

The Supreme Court has also added language in the new guidelines to allow the trial court to consider the duration of the marriage when determining the duration of spousal support or alimony pendente lite (APL).  This change was specifically implemented to prevent the unfairness that arises in a short-term marriage when the obligors are required to pay support over a substantially longer period of time than the parties were married and there is little or no opportunity for credit for these payments at the time of equitable distribution. 

An additional change to the child support guidelines is the court’s presumption that the non-custodial parent (the parent paying the support) is spending at least 30% of the time with the child(ren).  As such the non-custodial parent should also be making contributions for things such as food and entertainment.  These payments are built into the new schedule.  Under the new guidelines a deviation upward may be had where the non-custodial (paying) parent has substantial less than 30% time with the child.  Conversely, a deviation downward may be had if the non-custodial parent has substantially more than 30% time with the child. 

Lastly, under the current guidelines a spouse could be awarded an additional amount to assist in paying the mortgage on a marital residence.  This amount could be ordered to continue being paid even after the parties obtain a divorce.  The new guidelines now limit this “Mortgage Deviation Credit” and direct it cannot be applied after final resolution of the economic claims between the parties to a divorce. 

The new guidelines go into effect May 12, 2010.  Enactment of the new guidelines, in and of themselves, are not a grounds to change a current support order.  If, however, a substantial difference exists in a support award calculated under the old and the new guidelines it is possible a court would grant such a modification.  Parties who suspect their support award may be altered by the new guidelines should consult with a family law attorney to determine if it is worth their while to file for modification.

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An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The tenth and final installment will focus on moving on after your divorce. Mr. Visco discusses the fact that the Judgment of Divorce in and of itself is not going to improve your life. The divorce simply changes your legal status from being married to being single. What you do as a result of the change of status is now up to you.You can download a copy of the installment notes here. (PDF)

You can download the tenth installment here. (1.4 MB)

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An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The ninth installment will focus on the follow-up after your divorce.  After you have entered into a Settlement Agreement or the Judge has made a decision, the terms of that Agreement or decision must be implemented. In this installment, Mr. Visco will will discuss issues pertaining to deeds and mortgages, how to change your name, life insurance policies, pension or retirement accounts, medical insurance and bank accounts.  You can download a copy of the installment notes here. (PDF)

You can download the ninth installment here. (1.7 MB)

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An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The eighth installment will focus on the trial portion of your divorce. If you and your spouse have been unable to settle your case between yourselves and none of the settlement alternatives described in Section VII have been successful, it may be necessary to prepare and submit your case for trial before the Judge. In this installment, Mr. Visco will give an overview of the trial proceedings. You can download a copy of the installment notes here. (PDF)

You can download the eighth installment here. (2.3 MB)

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An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The seventh installment will focus on master's hearings, mediation and arbitration. Trials take a very long time to be scheduled, and are often times not completed in consecutive days and therefore usually require several days of testimony extended over several months. Trials are extremely expensive and almost always further polarize the parties. Family masters, mediations and arbitrations are a less expensive and time-saving alternative to traditional lengthy divorce litigation.You can download a copy of the installment notes here. (PDF)

You can download the seventh installment here. (2.3 MB)
 

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An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The sixth installment will address the discovery portion of your divorce proceedings. Mr. Visco discusses interrogatories, requests for the production of documents and oral depositions.You can download a copy of the installment notes here. (PDF)

You can download the sixth installment here. (2 MB)
 

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Joseph D. Visco, member of Stark & Stark's Divorce Group, was quoted in the January 26, 2010 CNBC article Breaking Up Doesn't Have To Be Hard To Do - Bucks County Collaborative Law Group Takes the Toxicity Out of Divorce.

In the article, Mr. Visco, a founding member of The Bucks County Collaborative Law Group (BCCLG), discusses the many ways in which a collaborative divorce helps divorcing couples turn conflict into cooperation and assists divorcing couples in resolving disputes respectfully and equitably without going to court.

You can read the full article online here.

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A lot of attention and publicity is being generated around a new approach to divorce - the Collaborative Divorce.  So what it is it, how is it different from “regular” divorces, and, most importantly, is it really better?

First of all, Collaborative Divorce is both an approach to, and a process for, Divorce.  Each party retains their own lawyer who, as in traditional divorce cases, advocate on their client’s behalf.  The attorneys aide in focusing the dispute to the legal issues and reaching a result consistent with what the parties would have obtained had they proceeded to court - except the Collaborative Process can do in weeks what it takes the court months to accomplish.  There are no formal filings thus no unnecessary legal fees, no waiting for court dates and no down time waiting in court for your case to be called.  This translates into less waste and minimizes billable hours and court costs. 

The Collaborative process typically involves numerous meetings with both the parties and the attorneys present.  These “four way” meetings allow the parties to prioritize the issues - addressing the most urgent, such as support, custody, the sale of a house or assets - before moving on to issues that can wait, such as dividing retirement accounts or having assets appraised.   Four ways rarely happens in a typical litigated divorce, and if they do it usually only happens at the very end of the litigation when the parties are desperately trying to settle the case the day before trial.  Choosing the Collaborative process frees the parties from being bogged down with court procedure, overburdened court calendars and layers of bureaucracy.  Generally most Collaborative cases dispense with the need for the parties to ever even step foot in a courtroom.

At the first meeting the parties and their lawyers enter into a “Participation Agreement” that sets forth the commitments in the Collaborative Divorce including the agreement that all issues will be settled prior to a divorce complaint ever being filed.  Once both parties have retained their Collaborative attorneys the lawyers then set the agenda for the series of four ways.  The lawyers will commit to managing the conflict, developing the legal issues and controlling the emotional issues.  Each party’s attorney is an advocate for that party.  Collaborative attorney are not mediators.  They advocate for their clients but with the goal of obtaining a result comparable to what a court would award.

Often times it is necessary to reach out to a detached and neutral expert - such as a custody evaluator, business appraiser, certified divorce planner, or financial or tax expert to resolve certain disputes or evaluate assets or develop a plan to preserve as much of the estate as possible.  This is comparable to the use of experts in traditional divorce without the costs associated to have them testify at trial.

Ultimately, the goal is to prepare a formal legally binding agreement signed by the parties which resolves all issues related to property distribution, support, child custody and other issues pertaining to the divorce.  The collaborative process is successful in obtaining such an agreement in about 97% of the cases.  In the 3% where a settlement is not reached - the collaborative attorneys must terminate their representation of the parties. 

What are the benefits? 

• Cost - Attorneys fees are generally half of what a typical litigated divorce may cost you.  Why? There will be no formal pleadings drafted, no waiting in court, no government bureaucracy to navigate.  The four way meetings save everyone time while the attorneys focus the parties on the legal issues which need to be resolved.
• Time - Skilled collaborative attorneys can resolve in one session what it may take a court months to resolve.
• Outcome - Your voice is heard.  The parties control the outcome - not a judge who may only hear a days worth of facts. 
• Privacy - With no public documents being filed the whole divorce, and the private facts underlying the divorce, remain private.  No prying eyes. No embarrassing details.        
• Satisfaction - Parties who have undergone the collaborative process report a greater feeling satisfaction in the end result and greater participation in the process.
•  Dignity - The collaborative process has proven to minimize hostility and allow the parties to “turn the page” on a new chapter in their life while promoting healthy communication between the parties - an invaluable benefit if children are involved.

The attraction to the Collaborative Process is not just for the parties who are struggling financially and want to save on legal fees - the benefits apply to all size divorces.  Madonna and Guy Ritchie recently committed to the Collaborative process and successfully (and quickly and quietly) obtained their divorce.

To begin the Collaborative process you need to meet with a Collaborative Attorney.  The attorney should be a member of an accredited organization - such as the International Academy of Collaborative Professionals.  You should then look for an attorney who is a member of a Collaborative practice group in the county where the divorce would likely be finalized.  As with the selection of any attorney - do your homework.  Review the attorney’s credentials.  Make sure you select an attorney who concentrates their practice in the areas of Divorce and Family law.  The selection of your attorney may be the single most important decision in your divorce.

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