Friday, September 27, 2013

Wait. The case is not over yet -- we need to divide the retirement accounts!

Qualified Domestic Relations Orders

Your retirement account -- and your spouse's retirement account -- are marital assets to be considered for division in your divorce.  Some people know this and accept it -- while some insist that they earned it and will never share it with their spouse.  However, Pennsylvania and New Jersey presumes that if it was earned during the marriage, it is marital.  

You may think that you do not have to share your hard earned retirement savings with your spouse, but you would be mistaken.  Your spouse may angrily tell you that you will never get your hands on their retirement account -  but the court will say otherwise.

Retirement accounts come in many forms: 401k, IRAs, pensions, 403b, etc.  In a divorce situation, you should first identify all retirement accounts in either spouse's name.  For purposes of gathering information at this stage, you should understand the details about all retirement accounts in either spouse's name, even if they were started or earned before the marriage. If you do not know what accounts exist or you cannot find the information, your attorney will be able to find the information for you in the discovery process.  However, doing the preliminary investigative work yourself may save some attorney fees.

Retirement accounts are protected by federal law and as such, there are specific and detailed laws regarding withdrawals and other changes to these types of accounts.  When a retirement account must be divided between two spouses incident to a divorce, the mechanism used is a Qualified Domestic Relations Order, commonly called a QDRO (prounounced "Quadro" or "Cudro"). This order directs the administrator of the plan how to divide the assets in the plan and what each spouse will receive.  Some retirement accounts may allow the division by filling out a form and submitting the divorce decree.  This is sometimes allowed at a brokerage, such as Vanguard, and avoids the time and money necessary for the preparation of a QDRO.

Preparation of a QDRO from initiation to final completion, takes many steps. First, the QDRO must be drafted, using the necessary statements and information from the plan administrator.  Your divorce lawyer usually does not actually draft this document.  Rather, you and your spouse must hire a specialist as the documents are complex.

Once the QDRO is drafted, it is sent to the retirement Plan Administrator for their approval of the form.  Sometimes, the Plan Administrator will propose changes.  Once the Plan Administrator approves it, each party signs it and it is then sent to the court for a judge’s signature and to be docketed.

When the court returns the file-stamped, signed QDRO, the parties send it to the Plan Administrator, who effectuates the division.

These multiple steps can take months, and in some cases over a year.  The back and forth can be extremely tedious and time consuming.  Stay on top of the procedure, to keep it moving along.  Remember that this final step can usually occur after the divorce.

Thursday, September 26, 2013

Does a divorce take only 90 days in Pennsylvania?

Short answer: No!  

Even the quickest divorces in Pennsylvania usually take longer than ninety days.

In Pennsylvania, the ninety (90) days refers to a mandatory waiting period before the court will grant the grounds for a no fault divorce, if the couple has been separated less than 24 months.  The only way to avoid this waiting period is if the couple has already been separated for 24 months.  These are the two different ways to achieve grounds for a no fault divorce in Pennsylvania: (1) wait for 90 days after filing and service of the divorce complaint or (2) establish a two year separation.

You can also obtain divorce grounds based on a "fault."  That is, you allege that the other person committed one of the acts that qualify as a fault under the statute, such as adultery, abandonment or indignities.  However, obtaining grounds for a fault divorce also include waiting periods so virtually all divorces proceed on a "No Fault" basis.

Other names for "No Fault" grounds include "irreconcilable differences" or "irretrievable breakdown."   Neither party alleges in the divorce complaint that the other person did something wrong -- just that the marriage is no longer working.

Once you obtain the grounds for divorce, you can request that the court grant a divorce, unless there are other issues that must be resolved, such as equitable distribution of assets and debt.  If the parties do not agree on the equitable distribution issues, they move forward to a hearing to resolve the issue.

"No Fault" does not mean easy, cheap, or quick.  It simply means that neither party must place a reason for wanting a divorce in their divorce complaint.  Each county in Pennsylvania has different procedures for how divorces move through the system so the procedure where you live may vary.

Tuesday, September 24, 2013

Preparing for Philadelphia Family Court

Ten (10) Practical Tips and Tricks

Any type of court proceeding can be anxiety producing.   Knowing what to expect may decrease some of your nervousness and help you to prepare.

1.  Philadelphia requires that you present your court notice to enter the building.  Have a copy ready to show to security.  If you forget your copy, the Sheriff’s officers will direct you to go to customer service to get another copy.

2.  You and your possessions must pass through a security checkpoint, which includes a metal detector.  Sometimes there is a long line.  Be prepared to wait.

3.  There are different entrances and addresses to Philadelphia Family Court.  Look on your notice for the address of the entrance you are to use.

4.  While your notice may list a specific time, proceedings scheduled before a judge are often listed at the same time as may other cases.  Therefore, you could be waiting a long time for your case to be called.  A case could be scheduled for 9:00 a.m. but not be heard until late afternoon.  While that kind of a delay does not always happen, you should always be prepared to stay the entire day.  Your proceeding may also be scheduled before a Master or a Hearing Officer -- these individuals do not have the same authority as a judge and may not hear testimony.  Understand the details about your proceeding so that you can adequately prepare and manage your expectations.

5.  Because you could be waiting for quite some time, bring reading material or other activities to keep you busy and to keep your mind off of the wait.

6.  If you plan to present any type of documentary evidence to the court, please understand you will usually need between three (3) and five (5) copies of each document.  Additionally, if you have text messages, print them on paper by taking a photo and printing it out.  Do not expect the judge to look at your phone.

7.  Many cases settle, even at the courthouse.  Sometimes, litigants can feel rushed about considering the terms of the settlement.  A settlement can be preferable than risking that the decision from the judge could not be as favorable.  When you go to court, have an idea in mind of your bottomline so that if settlement discussions begin, you will be prepared to negotiate.

8.  Even though you could be waiting a long time for your case to be called, your actual time in the courtroom could be brief and this is frustrating to many people.  Think about your most important points and make them first.

9.  In court, if you are required to speak, always be loud and clear.  Most proceedings are "on the record" which means there is a court reporter transcribing the proceedings or the proceedings are being recorded.   Courtrooms can be noisy and judges can be distracted.   Make sure that the judge and everyone else in the room can hear you.  Speak slowly and enunciate each word.

10.  You may be in the same waiting room as the opposing party and opposing counsel.  Having reading material with you, as mentioned above, helps you not to spend the time obsessing about what the other party is doing.

Thursday, September 19, 2013

Wednesday, September 04, 2013

Philadelphia is getting a new Family Courthouse

Linda quoted in the Legal Intelligencer, 
September 4, 2013.

The Family Division of the Philadelphia Courts will move to a brand new courthouse - hopefully next summer.

Today, The Legal Intelligencer, Philadelphia's Legal newspaper and the Oldest Law Journal in the United States, quoted Linda in the article: "New Family Courthouse Could Transform Practice of Law." (subscription required to view link)

Linda noted that the current state of disrepair of the building and the maze of rooms and reception areas causes clients to question the justice and fairness meted out in the building.