Author Archives: Matthew Engelson

Marital Vs. Non-Marital Property in Pennsylvania

You’ve been married for ten years, but now you’re in the midst of an unhappy divorce. Each of you came to the marriage with good-paying jobs, cash in the bank, and even owning some real estate – and then you bought more with your pre-marital funds. What seems clear to you about who owns what is, unfortunately, as straightforward as you think. Here’s what you need to know about equitable distribution and commingled property in the state of Pennsylvania.

What’s Clearly Marital Property

The clearest and easiest thing to understand is that anything you purchased during the time of your marriage – whether you bought it with money earned while you were married or what you had in the bank before – is considered marital property. Even if you only put your name on it, the court is going to view it as belonging to both of you – and that means that it will need to be divided between the two of you.

What’s Clearly Non-Marital Property

If you owned assets prior to getting married — like a house, or a retirement fund, or a valuable painting — those items are non-marital and are protected from equitable distribution. The same is true of any assets that you specified as non-marital in a pre-nuptial agreement, as well as anything you were given as a gift or inheritance before or after the marriage. But if you used cash that you had in a pre-marital bank account to make a big purchase after you were married, there’s a good chance that your pre-marital protections will be gone. The same is true of any money you add to an already existing account. If a pension or 401K fund existed prior to the marriage and you’ve continued to add money to it thinking that the recent deposits are yours, you’re going to be in for a rude awakening. You’ll have to identify the value of the account on the day you got married, and anything deposited after your wedding will be viewed by the courts as marital property. The same is true of any growth in value of pre-marital assets or investments: the increase is likely to be subject to equitable distribution.

What’s A Lot Less Clear

As you can see, things get tricky once you start commingling your funds. Say, for example, your partner owned a home before marriage and you put a significant amount of your funds – whether premarital or marital – into fixing it up or expanding it. Can you get your cash back? There’s no doubt that the increase in value of the home will be marital, but that may or may not be equivalent to your investment. Unless your name was added to the title of your spouse’s pre-marital home when you contributed your pre-marital cash, what you invested may only be recoverable as growth.

Don’t Forget About Debts

We’re spending a lot of time on assets, but it’s important to remember that equitable distribution will also address debts – both pre-marital and marital. Any debts that existed prior to getting married will remain with the spouse who originally incurred them, even if the other spouse was helping to pay them down during the marriage. If you walked in with student loans that your partner was paying for, they are not on the hook to continue paying them down after you’ve split.

The same is not true of debts incurred during the marriage. Even if your spouse rang up big credit card bills on clothing or luxury items for themselves and on a credit card in their own name that they had prior to the marriage, the debt will be considered marital. There are some cases where a court might assign responsibility for an expense that is clearly for the use of one partner to that partner, but that type of action is reserved for situations involving gambling or something would be similarly unfair to include as marital.

How Equitable Distribution is Calculated

The good news is that equitable distribution does not necessarily mean equal. Factors such as the length of the marriage or unequal footing in terms of income or earnings potential will be carefully reviewed by the court, as will age and health, the standard of living established during the marriage, and the custody of minor children.

An Experienced Lawyer Will Help

It is the rare situation where both spouses walk away from a marriage feeling that equitable distribution worked out in their favor. Somebody is always going to feel that they’ve been cheated – and often that’s true of both parties. Equitable distribution can be a contentious process, but having an experienced attorney working as your advocate helps. Contact us today to learn more.

When Parents with Shared Legal Custody Can’t Agree on Vaccination, a Judge Will Decide

In the state of Pennsylvania, the vast majority of divorced couples who are parents end up with shared legal custody of their children. No matter how tough the initial custody battle may have been or how much of a tussle child support was, this status tends to evolve into a non-issue, as both parents tend to share values and concerns when it comes to big issues about their kids. But as with nearly everything else in our lives in the last few years, COVID-19 has added a new layer of complexity. Family lawyers and courts are seeing a dramatic increase in the number of divorced couples arguing over whether to vaccinate their children.

Health issues are one of the areas that shared legal custody addresses, and the fact that one parent has the lion’s share of custody time does not automatically entitle them to overrule the other parent’s concerns. A Pennsylvania couple that could not come to terms on COVID vaccination for their kids was recently profiled on PBS station WHYY, and is representative of what many courts in Pennsylvania are seeing.

Though both parents were vaccinated themselves and generally agree on other shared custody questions about religion and school, the father balked when it came to vaccinating their 9- and 11-year-old children. He was not anti-vaccination, but insisted that children did not face the same risks that adults do and that there was too great a risk of side effects that came with injecting the kids with what he considered an untested vaccine. The couple had similarly argued over masks earlier in the pandemic, as he felt they were ineffective and she disagreed.

While the mother surrendered on the issue of masking, when it came to getting their children vaccinated she felt that it was necessary, but new that legally she could not simply take it upon herself to get it done without her ex-husband’s asset or a court order. Doing so would have been a violation of the custody agreement, so the two sought help from a mediator, who refused to intervene. That left the children unvaccinated, shut out of many social events and sent home to quarantine every time there was a COVID case in their classrooms because of their unprotected status.

When the couple took their disagreement to a judge they were not alone. Pennsylvania courts have seen hundreds of these cases since the vaccines for children were approved. In some cases judges have simply decided on the matter of the COVID vaccination, but on others an extreme view voiced by one parent has led judges to modify the custody agreement and give authority on all health issues to the other.

Though there is no single answer to how these disputes are resolved, in most cases the judge relies upon the opinion of the child’s healthcare provider. Court watchers have noted that decisions are often effected by whether a dissenting parent expresses political views in the course of the discussion or has posted political statements against vaccination on social media. The courts want parents to be most concerned about their child’s health and wellbeing, and parents who are against vaccination need to provide evidence in support of their position.

In the case of the profiled couple, the children’s health provider refused to send a letter recommending vaccination because the children had no health issues. Still, they indicated that they adhere to CDC recommendations that healthy children be vaccinated. The father submitted articles from doctors who had voiced opinions against vaccines, and pointed out that his ex-wife had previously taken a stand against the standard childhood vaccination schedule, and that he’d had taken the kids for standard vaccinations once the two had separated.

In the end, the judge ruled that the mother could have the children vaccinated against COVID and made no modifications to the shared legal custody agreement. The issue cost both parents thousands of dollars to resolve, and reintroduced tensions in the family.

Disagreements surrounding children are the most emotionally fraught issues that divorced and divorcing parents face. For assistance in addressing these issues, contact our experienced Pennsylvania divorce attorneys today.

Why the Exact Date of Your Separation is Important

Few people who haven’t been through it themselves understand just how messy divorce can be. The smallest details can become major issues, right down to who keeps the coffee pot or which one of you gets the children for the fourth of July. One item that may seem insignificant but which is actually quite important is the exact date of your separation. Not only is it the starting point that determines when you can officially be divorced, it can also have a major impact on the distribution of marital assets, as anything purchased by one partner after the official date of separation would not be considered spousal. So how do you establish when you stopped being a couple?

The state of Pennsylvania takes a pretty liberal approach to defining separation, indicating that the last possible date would be when the official divorce paperwork was filed and the complaint served, but they’ve also acknowledged that there are plenty of unofficial factors that can show that a couple was emotionally or physically separated before then. These include:

No longer sleeping in the same bed. Though some people think that in order to be separated a couple has to live in separate structures, that is not the case, and it is increasingly common for divorcing partners to continue sharing the same home until the divorce is finalized, or close to it.
Separating finances. If a couple maintained a joint account throughout the marriage and one or both opened a separate account, that can be shown as an intent to divorce.
Filing separate income taxes. The government has created several financial disincentives for married couples to file jointly, so when one or both partners decide to file separately it is a strong indication that the marriage is about to end.
Discontinuing wearing wedding bands.
Openly dating. A relationship with another person and the new romantic interest being included in social or family events can be used as proof of separation.
Unofficial correspondence indicating a desire to end the marriage. Though an attorney may not yet be hired and no legal action taken, if one partner conveys clearly that they intend to end the marriage it can be used as proof of separation. The same is true of communication with others, including family members or close friends.
Removing spouse from legal documents, including insurance policies or wills.

Depending upon your particular situation, you or your spouse may want to prove or disprove the other’s assertion of the date of separation. Any documentation that you have that can either prove – or disprove – the elements above will be helpful to your divorce attorney.

For more information on the complexities of divorce, contact us today to set up a time to talk.

Who Gets Custody of the Dog?

If you’re in the midst of a divorce in PA, you’ve probably heard plenty of horror stories from friends who’ve been through the process. Disputes over the house, over pre-marital assets, over spousal support, and certainly over who spends more time with the kids are all typical, with some battles nastier than others. In the last few years divorce attorneys are responding to more and more clients who’ve added ownership of the dog to the list of things worth fighting over. If you’re anticipating pet custody as an issue in your divorce, there are a few points worth your consideration.

First things first. No matter how emotionally attached you and your soon-to-be-ex are to the dog and no matter how much you think of it as a family member, the courts do not agree. A decision by the Pennsylvania Superior Court — yes, somebody appealed a decision about pet custody to the Superior Court — made clear that pets are distinct from people and not subject to custody agreements. That means they are part of the equitable distribution process in the same way that any other asset is, and that it is not the court’s responsibility to establish or approve of a custody schedule. If the dog was owned before the marriage, or if there are adoption or purchase papers that only have one of your names on it then that will help identify the legal owner, but in terms of splitting the dog’s time between the two of you, you need to work this out for yourselves. Judges are not going to get involved.

So, what’s the right way to address the situation? As disappointing as this answer may be, the general consensus in the legal community is that if you and your spouse can’t come up with a solution you can both live with, it’s probably best for whoever doesn’t currently have possession of the animal to surrender and go find another dog. Even if you manage to craft an agreement, it’s not legally enforceable: if one of you violates its term you’re going to be back in the same, no-win, no-judge-will-hear-it situation.

No matter how wonderful your dog assuredly is, a legal battle over custody is going to result in nothing more than significant legal bills and bitter feelings. My advice? There are plenty of adoptable animals at your local shelter who would be happy to fill the void. Better to spend your money on toys and treats for a new pet then on a legal battle that you’re not likely to win.

Resolving Home Ownership Disputes in Your Divorce

When you’re getting divorced, issues of property division and who owns what can get very combative very quickly, and that can be especially true for your house. Decisions need to be made about who will stay and who will go, or whether it’s best for the house to just be sold. In addition to the emotional attachment you have to your “home,” there are also questions of what is “fair.” This is especially true in adversarial divorces where only one spouse contributed to the purchase and mortgage payments of the marital home. Things get even more complicated if the home was purchased by one spouse prior to the marriage. It’s entirely understandable for the spouse who was the original owner – or who provided the funding for the marital home – to object to distributing any part of property’s value to the other spouse. If you’ve found yourself in a situation like this, here’s what you need to know.

Under Pennsylvania law, anything that is purchased during your marriage is considered marital property, no matter which of the two of you actually paid for it and regardless of whose name it was put into. If you are the one who provided all the funds, you should steel yourself now for the property division process to feel extremely unfair, as your soon-to-be-ex will be legally entitled to some portion of the equity in the property, whether they invested a penny or not. The same is true for any other forms of property, including, but not limited to, a 401(k) plan, stocks, retirement incentives, pension plans, bank accounts, investments, vehicles, ect. People have even been forced to split airline frequent flyer miles that only one spouse earned because of work travel that occurred during the marriage.

If, on the other hand, the marital home was purchased prior to the marriage and is titled in only one spouse’s name, then that spouse is legally entitled to retain it, though the other spouse will be entitled to a portion of any increase in value that occurred over the course of the marriage. This is not only true for real estate, but all other forms of property that may have increased in value during the marriage. In certain situations, you may be able to offset your assets against any assets that your spouse may have owned prior to, or which increased in value during, your marriage.

One way to avoid the issues that arise during property division is to obtain a well-crafted prenuptial agreement prior to the marriage that specifically addresses how any property is divided the event of a divorce. As difficult and uncomfortable it may feel to broach the subject of a prenuptial agreement with your fiancé, not to mention feeling downright unromantic, having one often makes things far easier on both spouses in the long run.

If you are considering a low cost divorce in PA or are in the midst of one and you need advice, contact our experienced attorneys today to set up a time to talk.

Is an Inexpensive Divorce A Possibility?

The horror stories you’ve heard about divorce are absolutely true. Once-happy couples spend tens of thousands of dollars doing battle in their own version of the Kathleen Turner, Michael Douglas movie “War of the Roses.” Though it’s not at all uncommon for couples to spend six figures on splitting, it’s by no means a necessity. Just as you had options when you wed, the same holds true for your divorce. It’s all a question of your priorities and how badly you want to fight. If you’re both on board with cutting through the noise and taking care of business, you can end your marriage with relative ease and much less expense.

Though there are specific steps you can take to minimize your expense, affordable divorces in Pennsylvania all start with the same key attribute: both spouses have agreed to move on as efficiently as possible. If one of the two of you is committed to making the other pay (whether financially or emotionally), you should both prepare to write big checks to your attorneys. On the other hand, if you can both be amicable and agree on the basics, you’ll end up saving a lot.

With that in mind, here are our recommendations for cutting the cost of your divorce.

Read up on Pennsylvania divorces. By doing a minimal amount of research you can learn the basics of the process and the various elements that need to be resolved. Not only will that set you up for substantive discussions, but it will also minimize the number of questions you’ll have for your attorneys – and cut the time that they’re going to bill you. It takes most people until after they’ve received their first legal bill to realize that every time they call their lawyer with a “quick question” or to complain about their soon-to-be-ex, the clock is running and they’re being charged.
Make a list of the essential elements to be resolved — equitable distribution, child custody, child support, alimony/spousal support — and then set a time to meet with each other to discuss them. Trying to hammer them all out at once may be too much depending on your personalities and other factors, but the more you can agree to before you meet with attorneys, the better off you’ll be in terms of both time and expense. The caveat to this is that the agreement you reach must be fair: If one of you dominates or bullies the other into agreeing to something unreasonable, then the other’s attorney is going to nix the whole thing.
When you do have questions, ask your attorney’s staff rather than your attorney. There’s a very good chance that they will have been asked the same question dozens of times before and know the answer. There’s no magic to hearing words out of your lawyer’s mouth, but there is a big price tag.
Stop complaining to your lawyer. Divorcing couples would be amazed if they realized how much of their legal bills are spent on complaining about their spouse – or the divorce process. If your soon-to-be-ex did something to make you crazy, or made your child cry, or acted out at a party that you both attended, your lawyer can’t change it and won’t do anything about it. The time that you spend talking about it to legal counsel is just throwing money away. Calling your friends or your siblings makes a lot more sense.

If you let your attorney know that you’re both interested in saving money on the divorce, they will be happy to accommodate your wishes and tell you exactly what to do to make that happen. They may recommend a mediator or give you a list of questions to discuss on your own so that you can resolve the big issues yourselves. The more things you can agree to, the less chance that you’ll end up in court, which is where the really big money gets spent.

For more guidance on navigating divorce, contact us today to set up a time to discuss your situation.

What You Need to Know About Pennsylvania’s Child Support Rules and College

It is the rare couple that doesn’t quibble over money in the midst of divorce proceedings, so arguments and negotiations are generally expected. But even those expecting acrimony are shocked when their soon-to-be-ex announces that they are no longer contributing to college. They’re even more shocked to learn their spouse is perfectly within their rights to make this decision.

In the state of Pennsylvania, no parent is required to pay for their child’s college, and as a result the courts have determined that the same is true in the case of divorce, regardless of means or previous promises. Even if their children’s college attendance was part of a couple’s plans and dreams and they were diligently putting away money for tuition, there is no legal requirement that they continue that support unless a separate agreement to do so is negotiated.

The issue of whether Pennsylvania’s child support requirements included the cost of college was resolved by the Supreme Court of Pennsylvania in November of 1992, when a son sued his father over college tuition. The case, Blue v. Blue, involved parents who had been paying their son’s Penn State tuition together until they separated. Their son, a sophomore, took a leave of absence from school and then enrolled at Lehigh County Community College where both parents worked. He had been living with his father, who paid his tuition and all of his expenses, but then the father moved out of the house and started a new life with his girlfriend and her children. He purchased a new home and paid almost all of his new family’s expenses while his son moved in with his mother, re-enrolled at Penn State, and then sought tuition support from his father, who refused.

Though the lower court hearing the case – and later a Superior Court – ordered the father to pay a portion of his son’s tuition based on a previous state Supreme Court decision, that same court reversed this determination on appeal. They said that the original case had involved an agreement to pay tuition that had been incorporated into a divorce decree rather than on a legal obligation to do so as part of child support, and that therefore it was wrongly decided. The court noted that in the previous case they had not “unequivocally adopted a legal principle that a parent has a legal obligation to provide college expenses,” and went on to say that they had found “no legal authority to require a parent to provide for college educational support.”

Pennsylvania is one of twenty-six states in the country that does not give courts the authority to order a non-custodial parent to pay for some form of college expenses. And though the court will uphold oral agreements, agreements made during the marriage are considered to have been based on the assumption of living together and sharing expenses, and become moot once the marriage ends.

The Pennsylvania courts do enforce agreements to pay for college if they are drafted as part of a divorce settlement. For assistance in negotiating and crafting this type of support for your children, contact our experienced divorce attorneys today.

How the 2021 Child Tax Credit Will Affect Your Child Support

Let’s face it….2020 and 2021 were challenging years for parents whether you were divorced or not. The 2021 child tax credit passed by congress and signed into law by President Biden helped a lot, but for those who share custody of a dependent it might actually have made things more complicated. Here’s what you need to know.

The advanced child tax credit represented a financial boost by expanding the existing $2,000 per child credit to $3,600 for children age 5 and younger and $3,000 for those between 6 and 17. At the same time, it created a potential headache for divorced and separated parents for whom custody of a child has shifted from one household to another – or who alternate the years that they claim their child as a dependent. That’s because when the IRS determined who was qualified to receive the credit and how the monthly installments should be disbursed, they made their decision based on who claimed the dependents on the most recent return on file – generally either 2020 or 2019. If you have received that payment and are not entitled to it because your child is living with your ex or it isn’t your agreed-upon year to claim your child as a dependent, you could end up owing the IRS for money that you received. The good news is that there is a relatively simple fix available. By logging into the Child Tax Credit Update Portal, you can simply unenroll from the monthly advance payments. Doing this will allow you greater control of how and when you get the credit, if at all.

There are a few things that you need to keep in mind. First, if you and your spouse have been alternating years of claiming your child as a dependent, there is a good chance that you both got a stimulus check from the American Rescue Plan’s first two payments. But Congress recognized that mistake pretty quickly, and by the time the advanced child credit checks for 2021 were ready to be sent out, only one parent was able to receive the payments – the parent who claimed the child on their 2020 tax return. If you are not claiming your child as a dependent in 2021 and you’ve been receiving checks because you claimed them in 2020, then you could end up owing as much as $3,600 back. The IRS recommends that parents in this situation stop the payments from coming by unenrolling via the portal. You can then claim the credits on your tax return when it is your turn again in 2022.

The simplest approach to this scenario is for both parents to unenroll and forego the monthly payments in lieu of the credit. This would avoid confusion and keep both parents from having to worry about owing money back to the IRS. However, if your ex doesn’t unenroll you will still be able to claim the credit on your tax return when it is your year to claim your child as a dependent.

Another important thing to understand is that if you or your spouse are past due on child support payments, you will not be able to use the government payments as an offset or to reduce overdue taxes or debts from previous years unless you receive the funds as a refund after filing your tax return.

For more information on how the child tax credit might impact your particular custody and support arrangement, contact our Pennsylvania divorce law firm today.

How Divorce Affects the Issue of Vaccinating Children

Turn on the news or open your favorite social media platforms and you’re sure to see battles for or against mask and vaccine mandates. The vaccination issue quickly shifted from medical to ideological and from policy to personal now that the FDA has approved the vaccines for children 12 and older. For parents who are negotiating issues of child custody, it introduces a new topic for dispute that is likely to become even more important as approvals are expected soon for children under 12 for the vaccine. Here’s what you need to know if you and your co-parent disagree about whether to have your child vaccinated.

In almost all cases, parents in Pennsylvania share what is known as legal custody of their children. Shared legal custody means that each parent shares equally in the decision making for all major medical, educational and religious decisions. The parent who has the majority of physical custody does not get a larger say in legal decisions and this means that both parents need to agree as to whether their child should be vaccinated against COVID-19. Though shared legal custody is granted with the idea that parents can come to consensus on what is in their child’s best interest, that is not always the case.

In a recent headline grabbing case, a Chicago judge ordered a mother temporarily lose custody of her child until she herself got vaccinated. Though that order was later reversed, it gave rise to significant discussion about the topic, with legal experts agreeing that if the child had been immunocompromised, then the mother’s vaccination status would clearly have been a concern.

The intensity of emotions and opinions regarding everything surrounding COVID-19 suggests that there will be many parents who turn to the court in order to modify their legal custody agreement and ask the court to give them authority to decide whether or not their child is vaccinated against COVID-19– or all future medical decisions in general. The courts may assign one or the other parent sole legal custody regarding vaccination, but only after both parents present the reasoning behind their position. Though there are some scenarios where a parent’s religious beliefs or a child’s medical needs override mandates, the courts generally take the position that legal custody issues are to be determined by what is in that specific child’s best interest.

The position the Courts will take when faced with a dispute over a child’s vaccination against COVID-19 is not currently know and will certainly vary with each specific case. There is a strong possibility that the Courts will require parents to seek advice from the child’s medical provider as to the risks and benefits of vaccination and then may Order the parents follow the recommendations of said medical provider. Another factor that may impact how the Court’s decide the issue of vaccination is the position of Pennsylvania’s schools, both public and private. There are currently several vaccinations mandated for attendance at Pennsylvania’s public schools, and there is a strong chance that the COVID-19 vaccine will be added to the list of required vaccinations.

How Are Retirement Funds Handled in a Pennsylvania Divorce?

Going through a divorce forces you to look at nearly every aspect of your life from a new perspective, and to confront the reality that the emotional and financial foundation you’ve spent years buildings has to be re-evaluated and rebuilt.

Of all the assets accumulated through the course of a marriage, retirement funds are among the most challenging for many to address. In most cases, the funds represent both sweat equity from their labors to support themselves and their family, and a future they’d anticipated spending together, now taken away from them. The rules around retirement accounts have contributed to the sense that they are untouchable, and that can make negotiations around them fraught. Still, just as is true of bank accounts, stock portfolios, real estate and other investments, they are assets subject to Pennsylvania’s rules of equitable distribution. However, the prohibitions against early liquidation have led to special processes and forms being created to allow them to be divided without either party being penalized.

Are the Funds Marital?

The first question that needs to be answered is whether the retirement funds were accumulated during the course of the marriage or beforehand. Any accounts set aside prior to the marriage are considered separate, while those earned during the marriage are considered marital, and therefore subject to equitable distribution. If the plan started after the marriage then all contributions are marital but if established before marriage and continued through the marriage it is considered co-mingled, and that means that some complicated tracking will need to be done to separate out what is marital. In most cases, anything that started after the date of separation is not considered marital or part of the marital estate.

The Question of Equitable Distribution

Once marital assets have been separated out and evaluated, the various factors taken into consideration for equitable distribution will be applied to the funds. Equitable distribution looks at a number of elements, including how long the marriage has lasted, how old each partner is, their health, income, age, and earnings capacity. These are generally used to calculate a percentage of assets each spouse will walk away from the marriage with.

What Types of Retirement Funds Are Owned?

Retirement plans can be pension plans, which are referred to as defined benefit plans, or they can be defined contribution plans such as 401(k) plans, profit-sharing plans, and IRA accounts. The difference is important, as defined benefit plans are funded by employers during employment but aren’t received until after retirement, while contribution plans are funded by both the employer and the employee. The two are treated differently because of the difference in how they are funded and paid out.

For pension plans, the courts generally assess the plan’s value, divide it according to the equitable distribution factor, and then creates either am immediate offset that allows the pensioned employee to retain the plan in exchange for another asset or a deferred distribution for the non-employee spouse that is similar to the plan in place for the employee eligible for the benefit. This usually means that payments begin being distributed monthly when each reaches the age of 65. Another option is for the court to order the spouse scheduled to receive benefits o pay a portion to their ex when they start receiving them.

If the employee spouse’s employer has been contributing along with the employee to a 401K or similar defined contribution plan, the account holder is often ordered to take the percentage of the fund’s value dictated by the equitable distribution calculation and rollover that amount into an IRA, or to liquidate the entire amount to allow the proceeds to be divided. When an account needs to be divided in a divorce, the courts use a special order called a Qualified Domestic Relations Order, or QDRO, to ensure that rights are preserved and each spouse is treated fairly.

If you are concerned about the fair distribution of your assets in a divorce, our experienced attorneys can help. Contact us today to learn more about how your assets can be managed in a fair way, and all of the other challenging aspects of divorce.