Tuesday, April 29, 2008

Public Records Include Divorce Files

Filing a lawsuit usually means making your allegations part of a public record. Virtually all complaints can be accessed, obtained, reviewed and photocopied. Most people do not usually think of their divorce file being similarly accessed. But, after all, divorce is a lawsuit.

Divorce (and custody or support actions) involve filing a complaint and beginning a file at your local courthouse. Those files are sometimes open to public access, depending on the county.

When tmz.com or perezhilton.com publish Britney Spears’ divorce complaint, Denise Richards’ custody petition or the support and alimony request filed by Lionel Richie’s estranged wife, it is not because those websites have special access or power not possessed by the average citizen. Rather, court records are often available for public view. Additionally, the advancement of the information age means that much of this information is available online. However, as identity theft becomes more rampant, dumping all of your information into the public domain exposes you to unauthorized use of your personal information.

You may not be able to prevent access to your divorce file (or any other legal file). The U.S. Constitution, certain statutes and case law protect the public’s right to access court records. However, in some cases, you may be able to limit the information included in your court file.

Here are some tips:

(1) When including social security numbers in court pleadings, if the county allows it, X out the first five numbers (xxx-xx-1234). Unfortunately, some counties require that full social security numbers be included in pleadings so you may not have a choice.

(2) Exhibits to petitions, especially in divorce and support matters, often include account statements, tax returns and paychecks. Again, redact certain identifying information, (but remember that you may be asked to provide unredacted statements to the court later). For example, you can white out many numbers, leaving only portions, useful for identification (the last four or five numbers are usually sufficient).

(3) When your attorney drafts agreements that will be filed as part of the court record (stipulations, settlement agreements or agreed upon orders), limit or redact as much identifying information possible.

Of course, sometimes, you have no control over the release of your information. Most courts, especially when filing support actions, request comprehensive information as part of the pleading or exhibits. You can still protect yourself by realizing your information is out there. Be more vigilant in monitoring account statements, credit card bills and your credit report. You can contact the major credit reporting agencies, asking for notification in the event that anyone applies for credit in your name. This could help you prevent a problem before it begins, or at least prevent a problem from growing out of control. Since a court filing may make you more vulnerable, take steps to protect yourself.

Monday, April 28, 2008

When Does Child Support End?

OK, so you are receiving child support – but for how long?

Or, you are paying child support. When does that obligation terminate? As with most all things legal related, it depends. However, here is a guide that will help you with planning.

In Pennsylvania, child support ends when the child becomes emancipated which, barring a child who cannot care for himself or herself due to a disability, infirmity or some other immutable factor, occurs at high school graduation or 18 years of age if the child is younger than age eighteen at graduation.

In Pennsylvania, absent an agreement to the contrary, parents have no affirmative duty to support their children post emancipation. This means that when parents are separated, absent a voluntary agreement from the other parent, there will be no court ordered college tuition payments or college living expenses. This reality often hits families when they are their most financially vulnerable as college time can be very expensive. However, it is better to understand the law and adjust your expectations accordingly.

I have had clients come to me and tell me that their neighbor’s husband pays for college tuition under a court order, or their sister-in-law was court ordered to pay tuition and room and board. However, delving deeper, that neighbor’s husband had agreed to pay tuition or the sister-in-law was subject to a New Jersey support order (where there is no automatic emancipation).

Of course, if your child suffers from some disability and cannot be self-sufficient, you may be court ordered to support that child beyond the usual emancipation triggers. According to 23 Pa. C.S.§ 4321(3), if a child has a mental or physical condition that prevents that child from becoming self-supporting, the parent could be required to support that child after the usual age of majority. Obviously, the physical or mental condition will be decided on a case by case basis. The Superior Court recently addressed this issue in the case of Kotzbauer v. Kotzbauer, which you can read here.

As mentioned previously, New Jersey operates under a whole different set of rules. Therefore, the details of your child support obligation depend in large part on where you live. As in all legal matters, your case depends on the details around your situation. See an attorney who is experienced in these types of matters for a comprehensive analysis of your situation.

Friday, April 25, 2008

42,127 Divorces Filed in 2006 in Pennsylvania

Ever wonder just how many divorces are filed here in Pennsylvania? The Administrative Office of the Courts recently released statistics for 2006, which you can review here. According to the report, there were 72,578 cases pending as of January 1, 2006. Then, during 20o6, 42,127 new divorce cases were filed. Only 40,064 cases were processed so that 74,641 still remained at the end of the year. Child and spousal support cases were much more plentiful: the Commonwealth saw 250,887 filed in 2006.

Wednesday, April 23, 2008

Gathering Information

Negotiating or litigating a successful divorce settlement depends on the quality of your information.

Accurate values of assets and debts will assist you (and your attorney) in obtaining a complete picture of the marital estate.

Sometimes, accurate valuations require a bit of research. Here are some useful websites in this regard:

1. To obtain the value of automobiles, try Kelley Blue Book or Edmunds.

2. To research a corporation, try Edgar at www.sec.gov.

3. Look up the values of certain stocks at Yahoo's finance page.

Virtually all banks and credit card companies provide online access. Print out statements for at least six months leading up to the separation date and at least two months after the separation date. (You should always print out -- some companies only keep a certain time period online -- or your spouse could change the password).

Detailed preparation, and accurate documents, will save you uncertainty and extra work later in the process.

Sunday, April 20, 2008

Selling Your Home

In some cases, selling your home may result in tax consequences.

For example, if your home has increased in value in an amount that exceeds the allowable exemptions, you may owe tax on the gain. Additionally, if you are divorcing, and wait to sell your home until after the divorce, you may not be able to take advantage of your spouse's exemption. For more information on the tax consequences of the sale of your home, consult with an accountant. You can read an informative publication from the IRS by clicking here.

Thursday, April 17, 2008

Bargain Basement Priced Divorces

I often see advertisements for a complete "no fault" divorce for a low flat fee, anywhere from $250 to $500. These advertisements may be somewhat unclear as to the scope of what is being offered.

First of all, virtually all divorces in Pennsylvania are "no fault." Whether there is fault or not does not usually affect the fault or complexity of the divorce. In these advertisements, the lawyer usually states the price includes all filing fees. This is a puzzle to anyone who actually practices law in Philadelphia or the surrounding counties, as the minimum filing fee for a divorce complaint, is usually in the $275 range and can exceed $375 in the counties. Therefore, knowing that, it seems that the lawyer advertising a complete divorce for just a few hundred dollars is leaving very little or nothing for attorney’s fees.

However, there is a catch. These low cost divorces usually involve filing a divorce in a far away county that has a very low filing fee. However, if neither party lives in that county, both jurisdiction and venue are inappropriate. Therefore, if the opposing party files an answer, or there are any issues besides dissolution of the marriage, this "bargain basement divorce" turns into a very expensive proposition - and sometimes a litigation nightmare.

Just this week, one of these divorces wound its way to the Superior Court of Pennsylvania. Basically, husband filed a Complaint in Divorce in a county where neither party lived, in order to take advantage of a lower filing fee. He served wife and then proceeded with the divorce. At some point, wife alleges that husband agreed to withdraw the divorce. Unfortunately, he did not, and the divorce proceeded, resulting in a decree. Since the divorce was final, wife filed a Motion to Vacate the Decree. The trial court dismissed her motion and she appealed it to the Superior Court of Pennsylvania. Ultimately, after reviewing the Rules, statutes and case law, the Superior Court reversed and remanded the trial court’s Order so that the divorce will be reopened. You can click here to read the full opinion.

Ultimately, it appears that this "bargain basement divorce" cost both of these parties an increased amount of time and money that would have been avoided if the original filing party had understood the potential consequences of filing in a far away county. If you are contemplating divorce, I recommend that you schedule a consultation with an experienced family law attorney who can review your case with you, in depth. Virtually all experienced attorneys charge for consultations, but the information you receive should be well worth the price.

Wednesday, April 16, 2008

Divorce by YOUTUBE

Maybe she should have read that prenup a bit more thoroughly BEFORE she signed it, not when things started to go bad in the marriage.


Monday, April 14, 2008

Social Security and Child Support

In a recent case, the Superior Court addressed a child support matter where Father received social security benefits. The court addressed the issue in a twelve page opinion along with a three page dissenting opinion.

The court quoted Pennsylvania Rule of Civil Procedure 1910.16-2(b)(2) which states that the benefits received by a child as a result of a parent’s retirement "shall be added to the combined monthly net incomes of the obligor and obligee to calculate the income available for support." The amount of supported owed for the child is then reduced by the amount of social security benefits. Afterwards, the remaining support obligation is apportioned between the parties. The Superior Court found that the trial court erred when it considered the child support guidelines and other factors to determine the support obligation and subsequently directed that the social security check be split.

If you have a case that includes social security benefits, you should consult with an attorney, familiar with the law in this area, to determine how it will affect your child support obligation. To read the full opinion, click here.

Wednesday, April 09, 2008

Pennsylvania: Paying or Receiving Child Support

If you are paying or receiving child support in Pennsylvania, you can log onto the Pennsylvania Support Collection Disbursement Unit (also known as PA SCDU) to keep track of your account, obtain useful forms and get information. You should log on periodically to make sure the information is accurate - especially your record of payments.

Friday, April 04, 2008

Is A Divorce Tax Deductible?

Legal fees for many business transactions are tax deductible as a cost of doing business. However, generally speaking, the legal fees and court costs for getting a divorce are not tax deductible. However, you should consult your tax return preparer regarding whether you can deduct the legal fees paid for any tax advice you receive concerning alimony. Additionally, if you had to pay an appraiser, an accountant or an actuary in order to evaluate your tax status or assist you with obtaining alimony, those costs may be tax deductible. Of course, as in many cases, deductible fees can be claimed only if you itemize on Schedule A. Additionally, as these are usually miscellaneous itemized deductions, the amounts are subject to the "2% of the adjusted gross income" limit.

If you feel that you may be incurring fees that are tax deductible, you should first consult with your tax return preparer. Then, you can ask your attorney, or other expert (appraiser, accountant or actuary) for an itemized bill, clearly delineating the services that assisted you in obtaining alimony.