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Pittsburgh Divorce Law Blog

Estate Planning Matters: Robin Williams Did The Right Thing

Proper estate planning is crucial for every person no matter how big or small your estate is. After news spread of the tragic passing of famed actor Robin Williams, we also learned that Williams planned ahead with a trust for his children. According to TMZ, Williams enacted a trust where each of his three children would receive a third of the trust fund upon reaching a certain age, and it was not dependent on his death. Reportedly, he did this in an effort to not spoil them at a young age.

Trusts are a very common estate planning technique for parents to do for their children while they are minors or even when they are adults. I often hear clients' concerns about their college age child or young adult child who simply is not mature or responsible enough to handle a large sum of money all at once. They fear it would be de-motivational and the child would blow the money and/or stop working, quit school, have lavish parties, etc. Another concern is that the child is married to someone who the parent(s) do not want to end up with their hard earned money in a divorce or the money could end up going to the child's creditors. Trusts are often the answer for protecting your child from themselves.

A NEW WAY TO PART WAYS: COLLABORATIVE DIVORCE

Everyone knows someone who has gone through a divorce and most would say it was not a pleasant experience. It does not have to be. What if the spouses, with the assistance of two collaboratively trained lawyers, were empowered to settle their divorce out of court creating an outcome that they both walk away feeling okay about rather than a judge telling them what they are getting? Well, it is a possibility now.

Collaborative Law is a relatively new area of law which has been primarily used in Family Law cases but is gaining steam in other areas of law like Employment Law, Estate Planning and Civil Litigation.

What is the "Collaborative Process?" The Collaborative Process focuses on the needs and goals of the clients and the preservation of relationships among family members or business associates. This can work quite well in divorce situations where the spouses do not wish to battle it out in court, as they recognize not only the potential financial consequences of doing so but the emotional toll litigation can take on a person. Parties who participate in the Process are typically interested in preserving the relationship with their spouse in the future if they have children together or a close knit family so that they are able to effectively co-parent their children. However, you do not have to have children to participate. In fact, those parties may choose the Process for a variety of other reasons which may include avoiding the game playing that often occurs in litigation and the potentially high legal bills involved in going to court. Rather, settling highly emotional issues such as custody, division of the marital estate and alimony in a calm and respectful environment is preferable.

What is involved in the Process? The first hurdle is that both spouses must retain collaboratively trained attorneys. At the first meeting, both parties and their attorneys sign a Participation Agreement, wherein they all agree to adhere to the principles of Collaborative Law. The most important consideration when signing this Agreement is to understand that should either spouse reach an impasse during the Process, the process would terminate, both attorneys have to withdraw, and the parties must retain new attorneys and proceed to litigation.

In a nutshell, during the process we have a series of meetings at the respective attorneys' offices wherein we gather information, explore settlement options, test consequences and in the end fashion a mutually satisfying binding settlement and obtain a divorce decree. During the process, we establish goals and use interest based negotiations in order to get to a settlement rather than taking positions which can often lead to impasse. 

Divorce Options: Is the Collaborative Process Right for You?

  When considering a divorce, there are many factors to consider in making such a big decision.  There are several possible approaches for couples entering into divorce proceedings. The "kitchen" table approach is when the parties are able to work everything out themselves without any outside assistance. Mediation allows the parties to try to reach an agreement with the help of a third party neutral who helps to facilitate an agreement between the parties without offering legal advice. The traditional divorce approach is where one or both individuals retain a family law attorney and the case proceeds through the court system. The newest approach to divorce is the collaborative law approach. The collaborative process is one in which the spouses, along with their collaboratively trained attorneys, adopt a teamwork approach and work towards a resolution of all outstanding issues through a series of team meetings.

The main concern of most couples considering undertaking the collaborative process is whether it is right for them. The American Bar Association published an article "An Orientation to the Divorce Processes, the Dispute Resolution Options Available to Clients, and the New Dispute-Resolution Option, Collaborative Law" which sets forth guidelines for couples looking at collaborative divorce to consider. According to the American Bar Association, the collaborative process could be a good option for you if some or all of the following is true for you: You want a civilized, respectful resolution of your issues. You would like to keep open the possibility of friendship with your partner down the road. You and your partner will be co-parenting children together and you want the best co-parenting relationship possible. You want to protect your children from the harm associated with litigated dispute resolution between parents. You and your partner have a circle of friends or extended family in common that you both want to remain connected to. You have ethical or spiritual beliefs that place a high value on taking personal responsibility or handling conflicts with integrity. 

Annulment versus Divorce in Pennsylvania

Divorce might be easy?  Well, when it is difference between an annulment and a divorce, an annulment is much harder to get.  There are two categories of marriages for which an annulment may be sought in Pennsylvania. The first are marriages that are void by their existence. The second are marriages that are voidable upon action be either party.

A marriage that is void is never considered to have been valid. In other words, a legal marriage never existed. Marriages are considered to be void in the following instances: the parties are closely related; either party was unable to consent because of mental illness or incapacity; or "either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce, except where that party had obtained a decree of presumed death of the former spouse." 23 Pa.C.S.A. § 3304.

Child Support and Paternity Suits: Beyonce's New Sister

Paternity issues in child support matters are not uncommon. Beyonce Knowles may soon find out that she has a secret half-sister. Her father, Mathew Knowles, 63, is facing a paternity suit from 30 year old, Taqoya Branscomb, who alleges that Knowles is the father of her daughter. The child was born in 2010 in Harris County, Texas. Branscomb is attempting to force Knowles to take a paternity test along with requesting child support and attorney fees.

Beyonce's former manager is no stranger to paternity suits. In 2010 his announcement that he was the father to actress Alexsandra Wright's son ended his nearly 30 year marriage to Beyonce's mother, Tina Knowles. In February of 2013, Knowles' was ordered to pay Wright $12,000 a month in support. That figure was significantly reduced to $2,485, after claiming that his income had diminished.

In Pennsylvania, an action to establish paternity must be commenced within 18 years of the child's birth. If a child is born out of wedlock and an action for support is filed, the alleged father is named as defendant. The defendant may choose to acknowledge paternity through a verified writing. 

Estate Administration: Who Gets Casey Kasem's Estate?

In Estate Administration, dying without a will can be complicated. Casey Kasem, best known for his time as the "American Top 40" radio host, passed away one June 15, 2014 as a result of complications from dementia. He was 82 years old. Kasem is survived by his second wife, Jean Kasem, and four children, three from his first marriage (Kerri, Mike, and Julie), and one from his marriage to Jean (Liberty).

Kasem's death was proceeded by extreme public feuding between his three oldest children and their step-mother, consisting of protests outside the Kasem's Los Angeles mansion and Jean throwing raw hamburger meat at her step-daughters. What will become of his $80 million estate if he died without a will leaving behind this feuding family?

Dying without a will in place is called dying intestate and the estate is referred to as an intestate estate. Under Pennsylvania law there are rules of succession, as to who receives a share of the intestate estate and when. "The share of the estate, if any, to which the surviving spouse is not entitled, and the entire estate if there is no surviving spouse," shall pass to: (1) issue; (2) parents, if there is no surviving issue; (3) brothers, sisters, or their issue, if there are no surviving parents; (4) grandparents, if there is no issue of the decedent's parents; (5) uncles, aunts, their children, and grandchildren, if there are no surviving grandparents; (6) the Commonwealth, if no one listed above is surviving. 20 Pa.C.S.A. § 2103.

Western Pennsylvania Child Custody Procedures

Child custody in Pennsylvania is governed by the same set of laws, compiled in Chapter 53 of the Domestic Relations Code. However, the procedure for enforcing Pennsylvania child custody laws varies county to county. All custody actions are initiated either by the filing of a custody complaint or a petition seeking modification of an existing custody order, both of which must be properly served upon the non-filing party. After the filing of the complaint, the process can differ greatly depending on what county the complaint or petition has been filed in.

In Allegheny County, all parties involved in a custody action, including any minor children of the action over the age of 6, must attend a court ordered Generations program education seminar. Next, the parties are required to attend a Generations custody mediation session with a court-appointed mediator. Attorneys are not permitted to attend this mediation session. If an agreement is not reached in mediation, the parties and their attorneys, if represented, will next attend a conciliation in the Generation's department. In the conciliation, the custody conciliator will listen to both parties' positions and statements and offer settlement recommendations. If settlement is not reached, the conciliator may direct court-ordered psychological evaluations or the parties may proceed directly to a partial custody hearing in front of a hearing officer, who will enter a recommended custody order, which will become final if neither party properly objects to it. If psychological evaluations are ordered, the parties can request a judicial conciliation with the assigned judge once the evaluations are completed. If a settlement is reached, a consent order will be drafted and signed by the parties. If a settlement is not reached, the judge will schedule a pre-trial conference and set dates for the custody trial, at which the judge will enter a final custody order. Children generally do not attend any of the proceeding in Allegheny County unless their testimony is necessary.

Beaver County also requires the parties to a custody to complete a court order educational seminar conducted by Catholic Charities. Once the parties have completed the educational seminar they will attend a Custody Conciliation Conference presided over by a Custody Conference Officer. Like the Generations Conciliation in Allegheny County, the Beaver County Conciliation Conference is informal and no record is taken. Both the parties and their attorneys participate. Children under 10 years old do not need to attend the conference unless an order has been entered to the contrary. If children over 10 years old are interviewed during the Custody Conciliation Conference, the parents are not permitted to be present; only counsel and the Custody Conference Officer may be present.

Spousal Support In Pennsylvania: What You Need to Know

When most individuals think of payments made from one spouse to another in connection with divorce proceedings, most immediately think of the term alimony. Alimony is one form of spousal support in Pennsylvania; however, there are also two others, spousal support and alimony pendente lite. Which one a dependent spouse receives depends upon which stage the parties are at in their Pennsylvania divorce proceedings.

The first type, spousal support, is the support that the dependent spouse can expect to receive commencing on the date of separation and lasting until either party files a divorce complaint. The amount of spousal support to be paid is determined by a formula set forth in the Pennsylvania Rules of Civil Procedure. The amount of support to be paid is determined by taking the net income of the obligor (individual required to pay support) minus the net income of the obligee (individual to whom support is owed). The award is 40% of the difference between the two incomes. For example, if the obligor nets $6,000 per month and the oblige nets $3,000 per month, the guideline amount of spousal support awarded to the lower-earning spouse would be $1,200 per month (40% of the difference of $3,000).

Where the obligor is also paying child support payments, these payments are also taken into consideration when calculating the guideline support amount, resulting in lower spousal support payment. Additionally, other factors such as child care expenses, payment of health insurance premiums, shared custody arrangements, and other relevant factors can affect the support calculation. There also exists certain defenses to spousal support before a divorce complaint is filed, such as when the obligee conducts him or herself in such a way that would constitute grounds for a fault based divorce, such as by committing adultery.

Dividing Pensions in Equitable Distribution

What happens in equitable distribution if one divorcing spouse has a pension?

If one divorcing spouse has a pension, it is usually safe to say that the pension makes up a significant portion of the marital estate. However, a pension is usually one of the most difficult marital assets to value and divide. This is because all defined benefits plans are essentially promises by an employers to pay its employee an annuity upon the employee's retirement; there is technically no account that can be divided at the time of equitable distribution.

There are two ways in which a pension plan can be distributed: immediate offset or deferred distribution. If there are sufficient assets in the marital estate, the employee-spouse may retain his or her entire pension, and the nonemployee may be compensated with other marital assets, known as immediate offset. However, often there are insufficient marital assets to effectuate an immediate offset distribution of pension benefits. Instead, it can be ordered or agreed that the pension benefits will be divided once they are received after the employee-spouse's retirement, known as deferred distribution. This distribution is effectuated by way of a qualified domestic relations order (QDRO) for ERISA plans or an alternative domestic relations order (ADRO) for non-ERISA plans.

Pennsylvania law mandates the use of a coverture fraction to determine the marital component of all defined benefit plans, including pensions. If a pension is being distributed by way of deferred distribution, the marital component is determined by dividing the number of months during which the parties were married but not finally separated by the number of months the employee-spouse worked to earn the total benefit. The nonemployee spouse would then receive his or her appropriate percentage of the marital component of the monthly annuity payment owed to the employee spouse upon said spouse's retirement. The amount owed to the receiving spouse is specified in the QDRO or ADRO as a percentage amount rather than an exact dollar amount.

Elder Law: Is selling the house to qualify for Medicaid the right decision?

A common misconception in Elder Law: "We'll have to sell mom and dad's house to pay for the nursing home." 

It seems like the first thing everyone wants to do when a loved one needs long-term nursing care is to sell their house. They listen to friends, neighbors and pundits on television who tell them that you need to sell the house and use the proceeds to pay for the nursing home care. The fact is, though, selling the person's home may not be the best option.

Generally, a Medicaid applicant's house is exempt. This means that, when the Department of Public Welfare ("DPW") looks at their resources, they will ignore the house and its entire value. The only requirement for this exemption is that the applicant intend to return to the house upon their release. This is certainly the case for a majority of nursing home patients. The home exemption is particularly beneficial when a community spouse is involved. When a wife needs long-term care, her husband still needs a place to live. The exclusion allows the husband to stay home while ensuring his wife is cared for appropriately.

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