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.)   

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.

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.

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.

• 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.

The fourth installment will focus on whether to use fault or no fault grounds when filing for your divorce. The podcast will discuss the legal implications of filing for a fault or not fault divorce, and how Pennsylvania state law will impact the decision you make. You can download a copy of the installment notes here. (PDF)

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

As we all are aware, Jon & Kate have a custody arrangement wherein Jon spends a week with the children at the Wernersville home and then Kate spend a week with the children.  The agreement provides that each parent will have exclusive possession of the home - in other words the other party is not permitted to be there or interfere with that parent’s custody time.

Apparently Kate did not abide by the agreement.  Last Thursday night she returned, unannounced, to the parties home during Jon’s week with the kids. Jon would not let her in.  Kate called the cops.  The cops arrived and told Kate to leave.  Kate complied.  The end.

For now.

So why did Kate show up at the house in the first place?  Allegedly Kate was upset over Jon’s babysitter - 23-year-old cocktail waitress Stephanie Santoro.  It has previously been reported that Ms. Santoro often spends the night at the house for reasons other than watching the children. 

Jealousy, no mater how understandable it may be, is no reason for Kate to get the police involved.  However, giving Kate the benefit of the doubt,  it is possible she believed her children were not being cared for appropriately by Ms. Santoro.

Regardless of the reason, unless the kids were in physical danger or there was an emergency situation, Kate was out of line.  Kate must respect Jon’s “exclusive” time with the children and stay away.  Furthermore, calling the police for a routine custody dispute (although I imagine it escalated into Kate and Ms. Santoro exchanging choice words with one another) is never a smart decision. 

But it happens all the time.

Parents routinely call the police when they believe the other parent is violating a custody order/agreement.  If the order is clear as to which parent has custody of the children at that moment, then the police may assist in transferring the kids to that parent.  Absent that, the police are generally powerless to do anything (except as previously noted) and, as in the Gosselin’s case, usually just inform the parties their dispute is a “civil matter” and they need to deal with it in family court.  Further, judges do not look kindly on a party who involves the police for simple custody matters.  Most judges are quick to berate a parent in open court for using the police in that manner.  I’ve heard the courtroom lecture from Judge’s countless times: “Don’t you think the police have more important things to do then deal with your personal problems?!”  (Always directed at my adversary’s client of course).

If you read my previous blogs, you know the Gosselins have not filed for custody (see Jon minus Kate: What about the 8?).  If Kate is going to make an issue regarding Ms. Santoro’s continued care over the children or presence at the house then Jon & Kate may be headed to Berks County for a very public custody battle. 

Perhaps Jon & Kate could learn a thing or two from Madonna - a private, comprehensive, collaborative resolution seems ideal for their situation.

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

• In a situation where there is great distance between where the parents reside, it may best for the child to spend the school year with one parent, and summer vacation with another;
• When the parents reside in different school districts, it may be best for the child to spend weekdays with one parent, and weekends with the other parent;
• When the parents reside in the same school district, it may be best for the child to spend one week with one parent, then the following week with the other parent and continue that rotation;
• If a child is of pre-school age, the parents may alternate with a 2 day, 3 day, 2 day schedule. 

The above schedules can be successful if both parents work well together for the benefit of the child.  A schedule will also have to be developed that provides for holidays and special occasions.  Parents need to be flexible as the child grows older and work together when the schedule needs to be modified. 

Sometimes shared physical custody pursuant to a schedule, such as one of those described above, is just not practical and not in the child’s best interests.  Examples of those situations are:

• If the child is an infant and breast feeding;
• When one parent works nights;
• If the parents are in different school districts and because of distance a shared physical custody schedule cannot be accommodated.

Every child has different needs.  Every situation is different.  Every child custody order must be crafted to reflect the unique needs and circumstances of the families.

Bucks County, pursuant to Pennsylvania law, applies the guidelines based upon the following:

First, the support obligation itself is based upon the reasonable needs of a dependent child and the reasonable ability of an obligor to pay. The guidelines assume that parents with similar net incomes will have similar reasonable and necessary expenses such as mortgage, dwelling maintenance, insurance and automobile expenses.  After the basic needs of the parents have been met, the child’s needs shall receive priority. 

The guidelines incorporate basic expenses which are necessary for the support of the child and which are part of the necessary cost of maintaining a household and providing a sufficiently safe home and transportation for the child.  Therefore, in most cases, a party’s reasonable living expenses are not relevant in determining his or her support obligation since the guidelines have already taken those into consideration.  For example, in setting the amount of child support it should be of no concern to the court that a parent chooses to live in a one-room apartment and rely solely on public transportation while another parent earning the same salary chooses to live in a five bedroom apartment and drive a new car.  Both are obligated to give priority to the needs of their children.  What they choose to do with their remaining income is not relevant to a support claim.  However, the guidelines do assume that if an obligor’s net income is at poverty level than he or she is barely able to take care of his or her own basic needs and a minimal order may be appropriate.  In the most extreme cases it may not even be appropriate to order support at all.

Second, the guidelines assume a child’s reasonable needs increase as the combined net income of the child’s parents increases.  Each parent is required to contribute a share of the child’s reasonable needs proportional to that parent’s share of the combined net incomes.  The custodial parent makes these contributions entirely through direct expenditures for food, shelter, clothing, transportation and other reasonable needs.  In addition to any direct expenditures on the child’s behalf, the non-custodial parent makes contributions through periodic support payments.  Net income is defined by statute as gross income minus taxes and any other deductions mandated by the employer as a condition of employment.  As a party’s net income increases, so do their expenditures and consequently the child’s reasonable needs increase.  No adjustment will be considered for normal fluctuations in earnings.  However, there may be occasion where an appropriate adjustment will be made for substantial continuing involuntary decreases in income due to illness, layoff, termination, or job elimination over which the party has no control.

Third, there are allowable deviations.  The guidelines are designed to treat similarly situated parents, spouses and children in the same manner.  When there are unavoidable differences, deviations must be made from the guidelines.  Special needs and special circumstances require consideration of a party’s actual expenditures.  Failure to recognize such a situation is a misapplication of the guidelines.  An example would be the special needs of a disabled child. 

And, of course, Jon sees no problem parading around the French Riviera with his new girl.  Regarding this past weekend’s romp, he states:  “I know that my decision to appear publicly with [insert “Muffy”, “Bambi”, “Barbi” etc...] this weekend will be scrutinized, but I hope that people can see I’m a regular guy who is going through a very difficult time in [my] life and wants to move forward.”

Most of us all probably agree (as much as we may despise Kate) Jon’s actions are immature, inappropriate and just plain stupid.  But our social and moral opinions  have no effect on the case.  It is the Judge’s opinion that matters.  So, from a legal perspective, how will Jon’s actions affect his divorce?

Probably not at all.

Unless Jon is paying for his trip to the Riviera from a marital bank account, Jon’s post separation “flings” will have no bearing on the divorce or the distribution of the parties’ assets.

His actions could, however, have some significance in a custody dispute.         

Under Pennsylvania law, when a custodial parent is living in a meretricious relationship (not sure Jon is at that point yet), or when a third party may exert a substantial influence over a child, the law requires the court to view the third party and subject them to cross-examination as to their supervision, values, and relationship with the children and all other quasi-parental actions they may undertake.  John’s girlfriend, should she be involved in the rearing of the children, will be subject to close scrutiny from both a child custody expert as well as the judge.  Her judgment, maturity, emotional stability (and college indiscretions) will be questioned and exposed.  If Jon insists on her being part of his new life, and the court determines she is not a good influence on the children, then Jon may see a reduction in his custody time with the children or restrictions limiting his friend’s involvement.

Although there is no indication that the parties will fight over custody, in fact it appears as though they may have already reached an agreement as to custody, Jon’s introduction of this third party to the family could upend any agreement that was in place and ignite a very public custody dispute.  Bear in mind the Montgomery County Court does not have jurisdiction in custody; Jon & Kate would have to file in Berks County where the children reside and where the public has access to all court documents.

Next week’s headline: Kate caught in Motel 6 with Jon’s pilates instructor...

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

So far, we know: 

• Jon & Kate agreed to file in Montgomery County (as opposed to Berks County where they live) to maintain confidentiality and have their records sealed;
• Kate filed the divorce complaint;
• Kate is only requesting a divorce based on No-Fault Grounds (and thus taking Jon’s alleged adultery out of the discussion);
• Kate is requesting the court to divide the parties' marital property if they cannot reach an agreement;
• Kate is requesting the court approve a settlement agreement between the parties (if they are able to reach one) regarding the division of marital property;
• Kate is not asking the court to decide custody of the children;
• Kate is not asking the court to award her spousal support;
• Kate is not asking the court to order Jon pay any child support;
• Jon’s attorney accepted service (on June 22nd, 2009) and did not raise any additional claims regarding custody or support of the children.

So far, what we can infer:

• Jon & Kate have worked out a custody arrangement (the kids live in the house; Jon has one week, Mom has one week?);
• Jon & Kate have reached an agreement on how to pay for any expenses they have for the children; Jon & Kate make enough money that neither needs any support from the other;

What remains:
Jon and Kate’s attorney are now in the process of accounting for the “marital estate” - the property that the parties acquired during marriage and which will now be divided between them.  They are gathering account statements, getting appraisals done on various properties, determining what property (if any) is not marital, determining what marital debt there may be, and generating a comprehensive accounting which the parties will then use to determine how to split it all up.  If the parties cannot agree regarding the value of certain property, or whether certain property is marital or non-marital, then the court will ultimately make those decisions.  I suspect any such disagreement may be decided via confidential mediation or binding arbitration and thus avoid any possible disclosure or leaks to the public.
   
The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

Cessation of cohabitation, whether living in the same residence or not.  In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.

In further defining “separate and apart” Courts have given additional guidance by requiring one of the parties to manifest the independent intent to dissolve the marital union and clearly manifest and communicate same to the other spouse.  Additionally, the notion of separate and apart is not defeated by isolated attempts at reconciliation or even sexual intercourse between the parties.  The gravamen of “separate and apart” is the existence of separate lives, not separate roofs.  It is when the parties stopped living as a married couple.  Determining the date of final separation requires a fact specific inquiry.  Considerable emphasis is placed on how the parties held themselves out to the public: did they go to social events as husband and wife?  Did they take family vacations together?  Did they change their financial arrangements from joint accounts to individual accounts?  Did they cancel joint credit cards?  Did they stop filing joint tax returns? Did the stop wearing their wedding bands?

Most of this information will never be revealed to the public.  But suffice to say the fact they continued to hold themselves out as a married couple to the public through their television program certainly supports the finding that Jon & Kate only recently began living “separate and apart”.
   
The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.