Monday, December 31, 2007

Friday, December 28, 2007

Emancipation

From time to time I receive anonymous e-mails or comments to my blog or website requesting legal advice. I cannot responsibly provide answers to these random questions because legal advice depends on the totality of the circumstances of the case so I usually need more information regarding the issues to make sure my advice is accurate. Therefore, my practice is usually to set up a consultation with the questioner so I can obtain a complete background.

I received this anonymous comment on my blog:

"I live in Pennsylvania. My child turned 18 in May 2007, he was held back in school in the 6th grade so he will not graduate until June 2008. I filed for an extension because of this several months prior to his 18th birthday. The court approved it, however, I am now being sued by his father to modify the support order due to emancipation? How does he have the right to do this?"

I cannot possibly answer this question with specificity because there are so many variables that could affect the answer. However, generally speaking, I can comment that there is really nothing to prevent the father in this matter from filing a petition to modify based on emancipation. Even if it seems clear that his request will fail, the clerk cannot refuse to accept the petition. Most likely, if there is no merit to his request, the matter will be dismissed. In some cases, if a party files a frivolous petition, and the other party can prove that there is no basis and that it was a waste of the parties’ time and the court’s resources, the court will award attorney’s fees as a sanction. However, that result is rare as courts do not automatically award attorney’s fees.

The mother in the above case should answer the petition, providing evidence of her child’s enrollment in high school. Then, she should appear in court ready to testify. However, I suggest that anyone facing the uncertain labyrinth of the legal system consult with an experienced attorney.

Two Homes Over the Holidays

Read an essay here* from today's New York Times. The adult writer opines on what it was like growing up as a child of divorce, dividing his holiday time between two households. He also discusses how it affects his life now, that he is an adult.

*Registration on the New York Times website may be required to view the article.

Thursday, December 27, 2007

Taxes Taxes Taxes

Tax time will soon be upon us.

Consult with a qualified accountant to evaluate your tax situation and assist you with preparing your tax return, especially if you are separated or divorced.

The Internal Revenue Service publishes some extremely informative guides to provide you with information. Click here to view IRS Publication 504: Divorced or Separated Individuals. The guide includes sections on filing status, exemptions, dependents, alimony and property settlement agreements. Arm yourself with information so you are in a better position to negotiate.

Nothing can take the place of advice from a qualified accountant but this booklet is a good start - so you are familiar with the issues.

Wednesday, December 26, 2007

What Happens if Your Spouse Dies DURING Divorce Proceedings?

In Pennsylvania, if you have established the grounds for divorce (for example: both parties sign the affidavits of consent), and one party dies, the divorce can still proceed on the economic claims. However, the Superior Court has decided that an actual divorce cannot be granted posthumously. Read the decision here.

In Taper v. Taper, 2007 PA Super 397, (December 26, 2007), the trial court equitably divided the property of the parties. Husband died before the divorce could be finalized and the trial court went ahead and granted the divorce to Husband posthumously. Wife appealed. The Superior Court affirmed the division of property but found that the trial court did not have the authority to grant the divorce.

Termination of Parental Rights

Our laws carefully address the circumstances that must exist before severing the parent/child bond in Pennsylvania.

Recently, the Superior Court of Pennsylvania addressed this issue, citing the statute and relevant case law to outline the steps necessary to terminate parental rights.

Read the actual case here. (In re I.G., 2007 PA Super 394 (December 21, 2007).

Friday, December 21, 2007

Child Support in High Income Custody Cases

In Pennsylvania, child support is determined by the Pennsylvania Child Support Guidelines. Generally, when parties share custody, or when the non-custodial parent has a substantial amount of time with the children, the guidelines allow for a downward modification of the child support amount.

In high income cases, the child support guidelines generally do not apply. These cases involve families earning greater than $20,000 net per month. In Bulgarelli v. Bulgarelli, 2007 Pa.Super. 295 (September 27, 2007), the Superior Court addressed a case in which the parties shared custody. On that basis, father requested a reduction in child support, commensurate with the shared custody. However, the court found that a reduction is not necessarily appropriate.

The court calculated each parent’s income and subtracted their monthly expenses to determine the amounts available for support. After calculating the net income available for support, the court apportioned father’s support payment. Accordingly, the court concluded that in high income cases, there was not necessarily a pro rata adjustment for shared physical custody.

It appears from the review of the facts the court included in the opinion that the trial court closely scrutinized the income and expenses of the parties. In these types of cases, it is extremely important to keep accurate expense records and be able to support every single expense. To that end, detailed receipts can often be extremely helpful, as well as reports run on computer accounting programs. Unfortunately, this is sometimes the most difficult part of these cases as, during a divorce, sometimes the last thing a client wants to do is prepare a detailed budget. However, it can mean a huge difference in support when it is a high income case and the expenses are relevant. In cases that are not considered high income, budgets are not necessarily a part of the basic child support calculation, unless there are extraordinary expenses which would justify a deviation. However, a budget, along with detailed back-up, can be an extremely useful tool in all cases as the attorney can evaluate the expenses to determine if a deviation is warranted in guideline cases.

Wednesday, December 12, 2007

Power of Attorney

Have you designated your spouse as your Power of Attorney?

Pursuant to Pennsylvania law, generally, that designation is revoked upon the filing of a Complaint in Divorce.

See 20 Pa.C.S.A. § 5605 which states in pertinent part:

Filing a complaint in divorce.--If a principal designates his spouse as his agent and thereafter either the principal or his spouse files an action in divorce, the designation of the spouse as agent shall be revoked as of the time the action was filed, unless it appears from the power of attorney that the designation was intended to survive such an event.

If you or your spouse has filed for divorce, you should review all powers of attorney that may be in effect.

Monday, December 10, 2007

Public Access to Documents - Philadelphia County

Some Philadelphia County documents, such as deeds, are available on-line for a fee. Click here for access.

Sunday, December 09, 2007

At what age does child support end?

Generally, in Pennsylvania,* a duty to pay child support ends when the child reaches age 18 or graduates from high school, whichever is later.

However, if the court finds that the child has a mental or physical disability that prevents them from providing for their own support, a parent may be ordered to pay child support beyond the traditional age of emancipation. Read a Superior Court case here, wherein a father was ordered to continue paying support for his nineteen year old daughter, diagnosed with epilepsy.

*In New Jersey, the rules are different and a child is not automatically considered emancipated at age 18 or high school graduation. If a child continues higher educaiton, generally, the duty of support will continue.

Residential Leases

As a Family Law attorney, prospective clients occasionally request that I assist them in terminating a residential lease. This could occur if a live-in boyfriend and girlfriend dissolve their relationship or when a married couple separates - and neither wants to remain in the rental property.

Unfortunately, residential leases are generally made not to be broken. Breaking up a relationship, losing a job, changing plans or dissatisfaction with the rental unit are not valid, legal defenses to failing to pay rent.

Recently, the Superior Court of Pennsylvania issued an opinion on this issue -- a landlord sued her renter for unpaid rent and won at the trial level. The renter appealed -- and the landlord won again, in the appellate court. Read the opinion here.

Signing a lease is a serious legal and financial obligation. Prior to signing, have an attorney review it so you understand the terms. And make sure you will be able to satisfy the terms of the agreement, no matter what your future holds.