Answers To Frequently Asked Questions
There are many questions you may have about your legal problems, especially when it comes to divorce. The questions and answers addressed below cover a number of areas we commonly discuss with our clients.
What does the divorce process look like?
See our infographic, which provides an easy-to-understand explanation of the divorce process.
Does it matter who files for divorce?
There are times when both parties engage in a race to the courthouse. There is no rule of thumb concerning who should file first. I prefer to be the moving party mainly because I am the first to get notices of any upcoming court hearings. That allows me to open up the discussions with the other side more rapidly than if we are sitting back waiting to be served with the paperwork. There are occasions when the turnaround time for hearings scheduled as a result of filing a divorce complaint is very short, and time is precious. If we have a client who is reluctant to file, there is certainly no harm in waiting, unless of course there are extenuating circumstances, such as if the spouse is draining bank accounts or has threatened to take the children out of the house. In that case, it is imperative that you see us immediately.
Can I leave the house or should I?
There are two main problems faced by spouses who leave the home before an agreement of some sort can be reached. First of all, as it relates to child custody, the parent who remains in the home may have an advantage over the other parent. There can be many situations where the parent who leaves the home goes without seeing the children for days or weeks. Secondly, in a divorce where we have a marital residence, the party who leaves may be unable to find out whether the bills are being paid or if the house is being maintained. It is not necessary to come to a global settlement agreement in order for one party to leave the house, but certainly it is wise to consider staying until you meet with an attorney in my office.
How is the division of assets and debts determined?
Pennsylvania is an equitable distribution state, which means that each party is entitled to his or her “fair share” of the marital assets and debts. Marital assets and debts are those acquired during the marriage through marital effort.
There are a number of factors that come into play when deciding how much is equitable. Issues such as income and earning potential, the age and health of the parties, who will be the custodian of the children, the ability of each spouse to meet needs in the future, the contribution of one spouse to the other spouse’s education, and similar considerations, are examples of factors considered. When you come in for the consultation, please bring a rough list of assets and debts, together with any documentation that you may have regarding those assets and debts.
Is my spouse entitled to a part of my pension?
Only the marital portion of pensions, 401(k) plans and 403(b) plans are considered in equitable distribution and may be subject to division. Thus, if one party started a retirement plan before marriage, a portion will be considered “nonmarital.” That does not necessarily mean that it will be distributed, it just means that it is part of the list of assets that we consider when we begin to negotiate either a settlement or proceed through court for resolution.
What do I do to protect myself financially?
In many cases, the best way to protect yourself financially is not to make any significant financial decisions or move out until you are able to come in for a consultation. There have been many times when clients have taken steps that hurt their case prior to seeking counsel. The sooner you come in for a free initial consultation, the better, because we can establish a game plan early on before you or your partner take action.
Am I entitled to alimony?
Alimony is a secondary remedy. In the event that there are insufficient assets to meet the spouse’s reasonable needs, alimony may not be awarded. In Berks County, the rough estimate of alimony duration is one year of alimony for every three to four years of marriage. Alimony is never guaranteed and the factors to be considered are complex. If you are concerned about whether you will likely receive alimony or that you will end up paying alimony, please come in for a consultation right away.
How is the amount of support determined?
Child support is governed by the Pennsylvania Child Support Guidelines. The Child Support Guidelines are based upon both the payor and the payee’s joint net income. The guidelines increase as the parties’ joint incomes increase, so that parties who earn $10,000 per month will see a higher support order than parties who jointly earn $3,000 per month. Consideration is given for child care, payment of medical premiums, extracurricular activities and orthodontia. Those obligations may be added to the base support order.
There is also, as part of the support order, a division of uncovered medical expenses, which usually is determined as the ratio of each party’s income to the total net income. Again, the best course of action is to come in for a free consultation, and we would be happy to go over these numbers with you. When you come in for a consultation, please bring pay information, including your last few pay stubs, as well as your latest tax returns. To the extent that you know the other party’s income, that would be helpful in calculating child support.
How do I find hidden assets?
We may have to engage in discovery to find out about hidden marital assets and debts. In essence, we can ask the opposing party to provide us with written answers to questions, and we can also take that person’s deposition under oath regarding the assets. Most cases do not involve hidden assets, but this issue should be addressed with us at the consultation so that we can include discovery as part of our plan.
Is my spouse entitled to part of my business?
Whether your spouse is entitled to a portion of the business depends on how the business is held, the type of entity, and when the business itself was acquired. If it was acquired during the marriage and marital funds were used as part of the purchase or upkeep of the business, you can assert that the business is marital.
Who gets custody and what is joint custody?
There are two main types of child custody. The first is legal custody, which allows parents to make medical, educational and religious decisions. Physical custody is where the child lives. Joint custody is common for legal custody. The most commonly fought-for aspect of custody is regarding where the child will live and the percentage of time that each parent will receive. Relocating with a child is also a common source of disagreement.
Do I need to have a custody schedule in writing and why?
Unfortunately, there are many cases where the parties in a custody matter agree verbally on a schedule. However, if problems arise, there is no violation because there is no written agreement to enforce. Once a resolution has been reached, either by agreement or through the courts, it is imperative that we put everything into writing so that there are no misunderstandings. If a custody schedule is in writing, it becomes an enforceable court order.
If I am living with someone and we are unmarried, what are my rights?
If unmarried parties purchase real estate or own other property together, problems can arise when the relationship ends. The way we divide property for unmarried persons is through a process called partition. It is similar to equitable distribution in which we look at the contributions of each party and, also, determine to what extent each party has an ownership interest in the various assets. Because this area of the law is rather complicated, the best course of action is to come in to see us as soon as possible.