Separation in PA Changes from Two Years to One Year

            Effective December 5, 2016, the PA Divorce Code is modified to require one year of separation, instead of two years, before a spouse can request a no-fault divorce with no economic claims or the appointment of a divorce master to resolve a no-fault divorce involving economic claims, without the other spouse’s consent.  I am not going to discuss whether I think this change was a good idea or bad idea, because at this point my view does not matter.  I will point out the practical consequences of this change.

             First, the change to one year separation is only effective for couples who separate on or after December 5, 2016.  If you separated on or before December 4, 2016, you are bound by the two year separation period.

             Second, the change only applies to situations where both spouses are not consenting to a no-fault divorce. If both spouses consent to a divorce and have resolved their economic claims such as division of assets and liabilities, alimony and claims for counsel fees, they can finalize their divorce as soon as ninety days after service of the divorce complaint.  If they are both consenting to a divorce but have not resolved these economic claims, they can agree to have a divorce master appointed before the one year separation period has passed.

             Third, this change only applies to no-fault divorces.  For practical purposes, that includes virtually all divorces in Pennsylvania.  I believe this change will virtually eliminate fault-based divorces in PA because the primary reason for pursing a fault-based divorce in the past was to avoid the two year separation period if a spouse would not consent to the divorce.  With the one year separation period, it will probably be just as quick to pursue a no-fault divorce through the court system after a year of separation as it would be to purse a fault-based divorce and with a no-fault divorce, both parties can avoid the personal and financial costs of testifying about marital fault.

             If you live or work in the central Pennsylvania area, including Carlisle, Harrisburg, Hershey and surrounding communities and would like to discuss how your divorce will proceed or any other family law or estate planning or administration issue, please contact me.

Where I Practice

Attorneys are licensed to practice throughout the state, so in theory I can practice in any Pennsylvania county. However, most attorneys limit their practice areas to certain geographical locations. I’m no exception. I practice primarily in Cumberland, Dauphin and York Counties. Therefore, the majority of my clients are from Carlisle, Harrisburg, Hershey, York and surrounding communities. It makes sense for me to limit the counties in which I regularly practice for a couple reasons.

The first is convenience and practical considerations for my clients and myself. The majority of my clients live and/or work in central Pennsylvania, primarily Carlisle, Harrisburg, Hershey, York and surrounding communities. They can travel to my office relatively easily from all of those areas when necessary. Although we can usually handle a lot of communication by mail, email and telephone, some things must be done in person. I also conduct mediation sessions and collaborative law meetings in my office. It is convenient for me to travel to Carlisle, Harrisburg and York for necessary court filings and appearances and that travel time does not unnecessarily increase the cost to my clients.

The second is maintaining familiarity with local court rules, procedures and expectations. All counties have local rules dealing with certain procedural issues. These local rules are not consistent from one county to another and are changed on a fairly regular basis. Each county also follows certain procedures for court conferences and hearings. For example, in Dauphin County, if either party disagrees with a support order recommended by the Domestic Relations conference officer, he or she can request a hearing before a judge. In Cumberland County, the hearing request goes to a Support Master instead of a judge. Every judge also has his or her preferences for submitting pleadings, contacting the court and courtroom procedures.

Although I encourage my clients to resolve their conflicts privately and without court intervention, sometimes the court is involved as a last resort if they are unable to reach an agreement or if their spouse chooses to pursue litigation. Therefore, I want to be aware of the local court rules, procedures and expectations. The best way for me to maintain that awareness is to limit the counties in which I will go to court.

If a client from a different area wants me to represent him or her and is aware of the possible increased expense due to travel, I will do so. If a client from a different area wants to engage in mediation or the collaborative law process and is willing to travel to my office, I will do so. If you would like to discuss this or any other estate planning or family law related issue in or out of the Carlisle, Harrisburg, Hershey or York areas, please contact me.

Gathering Information

Regardless of the process you use to go through a divorce, you must gather information in order to make informed decisions. There are numerous ways to gather information, ranging from relatively simple and inexpensive to increasingly complex and increasingly expensive. The information you need is the same no matter what process you use to obtain it. You need information regarding incomes, marital assets and liabilities, nonmarital assets and liabilities, education and earning capacities, health problems and treatments and most likely some other information specific to your marital situation.

Ideally, you and your spouse will agree on the process used to gather information. That way you have a “game plan” understood by both of you. You and your spouse can do the majority of the legwork to gather information, saving both of you some counsel fees and emphasizing the fact that you can work together to resolve your divorce. That means agreeing that you will exchange information that’s important to both of you, share it with your attorneys and streamline the information gathering process.

Some processes, such as mediation and the collaborative law process, incorporate information gathering into the decision-making steps. As part of the mediation and collaborative process, both spouses agree that they will voluntarily provide information that’s relevant to decision-making and that information gathering is done informally. It is both effective and efficient without taking unnecessary time or expense.

Information gathering in the litigation process is usually different. This often involves the exchange of formal written request for information such as interrogatories and requests for production of documents. It can also include depositions, where individuals are asked questions under oath with a court reporter present. It may involve subpoenas to third parties for information. All of these methods include much greater involvement by both attorneys in the information gathering process and are more confrontational in their approach. They are more expensive and more likely to harm the relationship between spouses instead of helping them work together.

Ultimately you and your spouse decide how to gather information. If you are in central Pennsylvania, including Harrisburg, Carlisle, York and surrounding areas, and would like to discuss the issue of gathering information or any other family law related issue, please contact me.

Can’t a Judge Decide Everything?

Yes. A judge (or at least the court system) can decide everything in your family law dispute, whether it involves divorce, division of property, support or parenting arrangements (custody) or some combination of these issues. Of course, before you decide to use the court system to reach a resolution, you should consider what that process will actually involve and what it means to have the court system make decisions for your family.

You should recognize that even if you use the court process, you may never actually appear before a judge. The actual procedure varies from county to county, but most Pennsylvania counties have one or more steps you must go through before getting to a judge. This is designed to help people reach agreements if possible and also to reduce the number of disputes that judges need to address. Divorce masters handle divorce cases, including conducting the hearing; domestic relations support officers handle child and spousal support cases; custody conciliators meet with parents to address custody cases.

If the dispute is not resolved at these initial levels, you may then end up in front of a judge or there may be another intermediate step, depending on the county practice. Most disputes are either resolved by agreement before actually getting to a judge or the interim decision-maker’s decision is not appealed to a judge. So you may be signing up for an adversarial system that will ultimately push for you and your spouse to make the decisions yourselves.

If you’re going to make the decisions by agreement anyway, why not voluntarily engage in a process that is designed to help you reach agreements instead of a process designed to have you fight against each other? Alternative dispute resolution methods such as mediation or the collaborative law process are specifically designed to help couples make their own decisions privately and respectfully, without the unnecessary complications involved in the court system. Before you decide to have a judge make all the decisions for you, consider the alternatives.

If you decide to push through the litigation system and have a judge make decisions for your family, be prepared to be disappointed. You will experience a lot of stress, confusion and a hefty price tag to have a less-than-perfect decision imposed on you and your family. That’s why I recommend using litigation as a last resort instead of as a first choice.

If you would like to discuss litigation, alternative dispute resolution methods or any other family law issue, please contact me.

Should I Agree to Pay for College?

In Pennsylvania, parents have no legal obligation to contribute to their child’s college education expenses. Different people have different opinions about whether it’s a good idea to help children pay for college. Some divorced parents agree to help pay for college in some manner. Some parents even include that obligation in a written contract. In my opinion, including such a provision in a written contract is a bad idea. If you’re inclined to do it anyway, the provision should be extremely specific about what the expectations are for both parents and their child.

The Pennsylvania Superior Court recently addressed such an issue in Mazurek v. Russell, 2014 PA Super 130 (June 24, 2014). In this case, the court held a parent in contempt of court for violating a provision of the parties’ divorce contract, which required the parent to pay for college costs. The Superior Court reversed the finding of contempt after looking at the circumstances of the case. This parent had been estranged from the child for five years, the child chose a college at which the costs exceeded $50,000 per year without consulting the parent, and the parent showed that the child had not made significant academic progress in high school.

You may look at this situation and read the case and decide the court was absolutely wrong. Or you may applaud the court for getting the decision right. I can argue either side of that case, which is part of what I learned in law school. My point is not whether the court was right or wrong. My point is that the litigation over this issue could have been avoided up front by not including that provision in the agreement. Or if this parent believed it was absolutely necessary to include the provision, he or she could have made sure the expectations and limits for everyone involved were clearly spelled out.

You should make sure you understand every provision of a contract into which you are entering. You never know when it may come back to haunt you. And even if you “win” in the end, it may be a long, expensive process.

If you would like to discuss this issue or any other family law related issue, please contact me.

Still Parents After Divorce

The title of this blog post says it all. If you are divorcing or ending any other relationship in which children are involved, you and your spouse or significant other will be tied together for the rest of your lives as parents. That means the actions you take in your divorce are going to stick with both of you and with your children.

I’ve had clients point out that they only need to interact with their spouse or significant other until their child or children turn 18 and are legally adults. I always correct that perception and point out that even after children are legally adults, children still need to interact with both of their parents and their parents still want to be involved in their children’s lives. There are graduations, weddings, births of grandchildren, holidays and numerous other occasions where you and your spouse or ex-spouse will need to interact. I think it’s important to keep that fact in mind while deciding how to handle your divorce and making the substantive financial and personal decisions during that divorce process.

If you want to provide a positive role model for your children to show them how adults can make difficult decisions with dignity and respect, take the time to carefully consider alternative dispute resolution methods such as the collaborative law process and mediation before starting your divorce action. Your children will see and hear how you and your spouse conduct yourselves during the divorce process and will learn from those observations how they should conduct their own relationships.

If you want to preserve a positive parenting relationship with your spouse or significant other after the end of your marriage or personal relationship, carefully consider alternatives to the litigation process. Traditional litigation puts parties in the role of adversaries, using their time, money and energy to show that their position is right and the other person’s position is wrong. This process does nothing to preserve a positive parenting relationship. If you and your spouse are able to work together through mediation or the collaborative law process to make the difficult decisions involved in ending your personal relationship, you will also be preserving that positive parenting relationship.

Remembering that you will still be parents after a divorce can be a powerful incentive to handle your divorce with respect and dignity. If you would like to discuss this topic or any other family law related topic with me, please feel free to contact me.

My Neighbor’s Divorce

Most of us have heard about or personally witnessed other people (neighbors, family members, friends etc.) going through the divorce process. Whether those observations or reports were positive, negative or somewhere in between, each person’s situation is unique.

There are some basic common elements to all divorces. Everybody gets a piece of paper from the court saying they are no longer legally married. Everybody must divide their assets and liabilities in some manner. Everybody must resolve how each spouse will meet their expenses and whether any support (child support, spousal support, alimony) will be paid. If they have children, parties must make appropriate parenting arrangements (custody).

Beyond those common elements, the specifics of how a divorce proceeds and ultimately is resolved are unique for each individual. You should not listen to tales of other divorces and assume that those stories will apply to your situation. Most clients come to me with some preconceived notions about how the divorce process works based on information from friends, family and coworkers. Most of those preconceived notions are partially or entirely incorrect and part of my job is to educate my clients about the realities of the divorce process.

It is extremely important that individuals not make any decisions about a divorce or ending a long-term relationship before getting competent legal advice. The time and expense paid for an initial consultation with an attorney (preferably me) is well worth the value of making informed decisions about whether to proceed with a divorce and if so, how best to do so. The stories we hear about divorces are usually not the whole story. The divorce process can be very fact-specific and is unique for every individual. The divorce process can also be influenced greatly by how individuals choose to go through it. The experience of an individual using an alternative dispute resolution method such as the collaborative process or mediation will be much different than the experience of an individual using litigation (the court process).

Don’t assume that the stories you hear from others about their divorce experiences will necessarily apply to you. If you would like to discuss this topic or any other family law related issue, please feel free to contact me.

What if Court is the Only Option?

I like to help my family law clients make their own decisions privately and respectfully, while avoiding the court system. That’s not always possible. Sometimes one or both parties are determined to have their day in court or they try to reach an agreement and just aren’t able to do so. I believe there are three elements to keep in mind if litigation is the only option.

First, make sure you keep your ultimate goal in mind. Hopefully that goal is to reach a resolution as efficiently as possible, without harming your family relationships any more than absolutely necessary. If your goal is to make the other party pay (literally and/or figuratively) with no regard for how it affects your family, I’m not the lawyer for you. So when you are navigating the court system, don’t get sidetracked from your goal. It’s easy to lose focus in litigation and engage in battles that will not further your interests, because it’s an adversarial system that makes people fight against each other. Do what is necessary to reach a resolution, but no more.

Second, never shut the door on a possible resolution by agreement just because you started down the path to a court-imposed decision. It’s never too late to reach an agreement. Even if you’ve spent considerable amounts of time and money working toward having a court make a decision, you will be better served by reaching a mutually agreeable solution than by having someone else make that decision for you. You and your family members know what’s best for your family. Don’t lose sight of that and develop tunnel vision with the belief that once you start down this path, only the court system can make decisions for your family.

Third, narrow down the points of disagreement if possible. If you’re getting divorced, you may be able to agree on how your property will be divided, but not on how both spouses will meet their expenses. In my experience, courts are happy to decide narrow issues such as alimony, taking into account the agreed-upon division of assets, which will save a considerable amount of money, time and aggravation. The reverse may also be true. Or maybe you’re able to agree on most or all of the property values, but not how things will be divided. If you’re making decisions about parenting and custody, you may be able to agree on the underlying facts surrounding your family situation, but not the ultimate outcome. The more you can agree on, the better off you will be.

Sometimes court is the only option to resolve a divorce or other family law matter. If that’s the case, you must then decide how you will approach the court process. If you would like to discuss the court process in central Pennsylvania, including Carlisle, Harrisburg, Hershey and surrounding areas, please contact me.

Divorce and Homemakers

You’ve taken care of the house, your spouse, the kids, the pets and pretty much everything else involving your family’s home life. You’ve supported your spouse in his or her career decisions, relying on the partnership you’ve built so that he or she provides most or all of your family’s financial sustenance and you provide the daily caretaking. You’re a homemaker, a stay-at-home parent, a supportive spouse, whatever name you want to adopt. Now you’re getting divorced and you have to adjust to huge changes in your financial and personal expectations. No matter if you’ve initiated the divorce or your spouse has, or if you jointly decided it was the right change for your family, you have a lot of decisions to make.

Before you make any decisions or changes, you should meet with an attorney. The time and expense of an initial consultation will be worth it if you are then able to make more informed decisions. You probably have a lot of questions about how your role as a homemaker during your marriage impacts the resolution of your divorce. It can impact the division of your assets, your income and expenses decisions (child and/or spousal support) and the resolution of your parenting arrangements or custody decisions.

Homemakers contribute greatly to the overall health and welfare of their families. They make valuable contributions throughout a marriage or long-term relationship and those contributions should be considered when that marriage or relationship ends. Under the Pennsylvania Divorce Code, homemakers’ contributions are considered in the litigation (court) process. Those contributions are also considered outside of the litigation process when using alternatives such as mediation or the collaborative law process to resolve divorce issues.

I’ve heard it said that since one spouse did not work outside the home during the marriage, he or she did not financially contribute to the family and should not receive a portion of retirement assets or other marital assets upon divorce. I’ve also heard it said that upon separation or divorce, a spouse who did not work outside the home during the marriage should immediately be expected to obtain full-time employment and support himself or herself. In my experience, these blanket statements are unrealistic in divorce situations. I believe both spouses are better off discussing the practical reality of their financial situations with their attorneys using an alternative dispute resolution method such as the collaborative law process or mediation to arrive at a mutually agreeable outcome instead of sticking to such unrealistic positions.

If you would like to discuss this topic or any other family law related issue, please feel free to contact me.

Trust and Divorce

Individuals starting the divorce process often have problems trusting each other. Sometimes the trust that existed during the marriage was violated by infidelity. Sometimes, trust is eroded due to lack of communication that leads to one or both spouses misinterpreting words or actions. That misinterpretation can be perceived as deceit or “hiding something” even if there was no intent to deceive. In other situations, both parties still trust each other even though their marriage is ending.

How do you work in good faith to reach an agreement with your spouse when you are skeptical about what he or she tells you or when you just don’t believe anything he or she says? Is it possible? Yes. The first step is to get the facts about the situation so you don’t have to rely on information from a source you don’t necessarily believe. The second step is to make your decisions based on the cold, hard facts in front of you and not based on the emotions you feel. I recommend the same two steps for people who completely trust the information from the other person. By following this process, you eliminate the doubt and second-guessing that comes along with mistrust.

Step 1 – Get the facts. There are lots of ways to get information. My favorite way is by asking directly for it. I make a list of information I’d like and give it to the other person. It doesn’t need to be complicated, drawn-out, combative or expensive. Most of the time, it works. Sometimes it doesn’t. If the other person is unwilling or unable to provide the information, I’ll use a different method. If he or she simply refuses to provide it, I can either get it from a different source or use another method to give the other person an incentive to provide it. That may mean issuing subpoenas to outside sources for the information or using the court process to make it clear to the other person that it’s important for him or her to provide the information and in his or her best interest to do so.

Many people assume (especially if they are having problems trusting the other person) that if it’s more difficult to get information from someone than we believe it should be, then they must be hiding something. In my experience, that’s sometimes true, but not always. Often, the person is disorganized, uninterested or just doesn’t realize how important the information really is. I do my best not to make assumptions about why it may be difficult to get information and focus on how to most effectively and efficiently get it. In the long run, it doesn’t matter if the other person is being deliberately difficult or is just unorganized because I just want the information my client needs to make decisions.

Getting the facts sometimes requires patience and persistence – for both spouses. The person seeking information needs to have some patience and understand that everything probably won’t be immediately available or forthcoming. The person being asked for information needs to have some patience and understand that just because the facts look clear to him or her, that’s not necessarily the case for the other person.

Step 2 – Make decisions based on the facts. You have all the information. Now it’s time to use it and make informed decisions without worrying about whether you trust the other person or not. Trust doesn’t matter at this point. You may need someone to remind you where you are in the decision-making process, which is not a bad thing. Your attorney should be helping you focus on the decisions you need to make, not re-hashing the reasons for your original lack of trust. Divorce often involves a lack of trust, but that doesn’t need to send both parties on a collision course through the court system.