Bucks County Divorce Lawyers

All marriages are fun, loving, and really a beautiful thing…. until they turn into ugly legal battles for who gets what. When a couple divorces, the courts divide the property shared by the couple without any regard to marital misconduct, which the court deems just after considering all of the different factors.  If you think something isn’t fair, or need help with a divorce call Bucks County divorce lawyer.

There are 11 different factors that the courts go through to determine who gets what. In the two subsequent sections detailing with alimony, counsel fees, and expenses, Section 3701 and 3702, the court may after a hearing may use different types of ways to get the spouse to pay the alimony in different ways.  Some of the major ways that the court uses to make the spouse pay alimony is: length of marriage, future opportunity of each party to acquire capital assets and income, value set apart to each party, standard of living established during the marriage, and custody of the children. All of these things are court ordered ways to make sure that the alimony payment comes on time and is actually paid.

The cite is:  Woskob v. Woskob, 2004 PA Super 37 (Pa. Super. Ct. 2004).  The issues involve changes in earning capacity.  Specifically, where divergence exists between actual earnings and earning capacity, support obligations should be determined more by earning capacity than actual earnings because earning capacity is more indicative of ability to pay support than actual earnings.  Your Bucks County divorce lawyers should fight for your if this happens.  

Additionally, a person's support obligation is determined primarily by the parties' actual financial resources and their earning capacity. Although a person's actual earnings usually reflect his earning capacity, where there is a divergence, the obligation is determined more by earning capacity than actual earnings. Earning capacity is defined as the amount that a person realistically could earn under the circumstances, considering his age, health, mental and physical condition, training, and earnings history.

In any event, in this 2004 case, the estate of appellant father appealed the order of the Court of Common Pleas of Centre County, Civil Division, which awarded appellee mother $ 23,824 in child support arrears and $ 473 for unreimbursed medical expenses. The mother also cross-appealed.

On appeal, the parties raised several issues. The appellate court concluded that the trial court did not abuse its discretion by omitting the advances accrued in 1996 in its calculation of the father's arrearage because the father provided the trial court with an adequate explanation as to why the advances were treated as a loan. The father presented competent evidence that he did not conspire to terminate his employment where he secured the most lucrative employment he could find. The trial court did not abuse its discretion in determining that the father had an earning capacity of $ 59,000 because his salary at his previous job was far greater than his actual earning capacity and his salary at his current job was less than his actual earning capacity. The trial court properly chose not to apply the nurturing-parent doctrine to the mother because the parties' three minor children attended school during the day and the mother's youngest child was not the father's responsibility. Finally, the trial court properly adjusted the father's support obligation to account for the mortgage payment on the marital home because the mortgage exceeded one-quarter of the mother's net income.

In most divorces the spouse is ordered to pay some child support to the other who needs the money to help support her and the children. In many cases, the spouse ordered to pay child support misses or don’t make the payments at all. When these kinds of things happen the court do different things to make sure of the “enforcement of arrearages”.  If you have a problem with your own payments contact Bucks County divorce lawyer.

The court has the power to make the person pay the arrearages in many different ways; there are 7 different powers that the courts use to enforce the payments. The important ones are: award interest on unpaid installments; require security to insure future payments, and award counsel fees and costs.

In the case of Willoughby v. Willoughby the spouse is in prison and the ball is in the courts hands to see how he will make the payments.

Roy Willoughby was incarcerated for criminal activity, and the court had to determine if his jail time permitted him to not to pay his alimony payments to his wife and family. The court ruled that the incarceration does not justify the modification of paying the wife’s alimony payments. They also ruled that just because the husband not is able to pay the “arrearages” while in prison, they should not be eliminated while he is serving his sentence or when he is released. When Mr. Willoughby is released there will be a trial court hearing under Section 3703 to enforce the payment of arrearages.  The cite is:  Willoughby v. Willoughby 862 A.2d 654 (Pa. Super 2004).

What happens if a spouse moves out of the house, gets an apartment and stops paying towards the mortgage of the marital home?  Can you make the spouse that moved out financially responsible?  

As you can guess, this happens quite frequently for Bucks County divorce lawyers and their clients.  What can you do?  

The guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners' insurance.  Similarly, the court will assume that the party occupying the marital residence will be paying the items listed unless the recommendation specifically provides otherwise.  If the obligee is living in the marital residence and the mortgage payment exceeds 25% of the obligee's net income (including amounts of spousal support, alimony pendente lite and child support), the court may direct the obligor to assume up to 50% of the excess amount as part of the total support award.  If the obligor is occupying the marital residence and the mortgage payment exceeds 25% of the obligor's monthly net income (less any amount of spousal support, alimony pendente lite or child support the obligor is paying), the court may make an appropriate downward adjustment in the obligor's support obligation.

When the court looks at "mortgages", this includes any and all secured debt on the home, including a HELOC and second mortgages.  

I had a case a long time ago where the spouse in the marital home moved for a mortgage adjustment, yet she was not making mortgage payments and the home was going towards foreclosure.  Fortunately, we successfully argued in the Bucks County Court of Common Pleas that the mortgage adjustment should not apply, saving my client thousands of dollars.   

What happens if a person hits the Powerball during a divorce?  A Bucks County divorce lawyer who is lucky enough to have a client hit the lottery, better know how to advise them properly.  It comes down to timing of when the ticket is purchased and when the winning occurs.  As you can guess, there is limited case law since lottery is a horrible game of chance.  

Livingston v. Unis suggested that lottery proceeds won during parties' marriage was marital property. Appellant's ex-wife entered into a decree of equitable distribution that entitled her to her ex-husband's lottery winnings. Prior to the decree, appellee creditor obtained a judgment by confession against the ex-husband and obtained a writ of attachment garnishing the lottery proceeds. The trial court determined that appellee creditor's garnishment was proper and that it was not affected by the later decree of equitable distribution. Appellant sought review. On appeal, the court affirmed. The court held that the trial court exceeded the scope of Pa. R. Civ. P. 3118 by doing more than maintaining the status quo, but affirmed because appellant failed to show prejudice. Further, the court held that appellee creditor's garnishment was a proper judicial order under § 8 of the Lottery Law, 72 P.S. § 3761-8, that the garnishment had priority over the decree of equitable distribution, and that the lottery proceeds, although marital property, were not immune from attachment by creditors. In addition, the court held that appellee Pennsylvania State Lottery was not immune from attachment and garnishment because it was engaged in a commercial-like venture.

Additionally, in Nuhfer v. Nuhfer stated that lottery proceeds received post-separation are marital preoprty because ticket was purchased during the marriage.  Seven months prior to his separation from appellee ex-wife, appellant ex-husband participated in an office lottery pool. Subsequently, one of appellant's co-workers filed the winning ticket with the lottery bureau, claiming ownership of the winning ticket. The co-worker maintained that she had purchased the winning ticket with her own funds, and not those of the office lottery pool; however, appellant and several co-workers brought suit claiming an ownership interest in the lottery ticket. Appellant's suit reached a settlement, the terms of which, remained confidential. The court held that appellant's cause of action against the co-worker accrued when he contributed to the purchase price of the lottery ticket, which was before his separation from appellee; therefore, the payment received as a result of the settlement of appellant's claim was marital property subject to equitable distribution, pursuant to 23 Pa. Const. Stat. § 401(e)(8). As such, the court affirmed the order that included the settlement proceeds as marital property subject to equitable distribution.

Video depositions are any deposition upon oral examination that are both audibly and visually recorded.  They are permitted in a Bucks County divorce.  

Your Bucks County divorce lawyer, if they are the attorney taking the deposition, should take positive custody of the videotaped deposition and shall provide a copy to opposing counsel at cost.  If the deposition is introduced into trial, it will be a transcribed the same way as if oral testimony will be given.  

This is all covered under Rule 4017.1 of the Rules of Criminal Procedure.  Some other big issues -- A video is not allowed to be used in court without a stenographer present. It also makes video depositions much more common and typical.  

Primarily targeting abused spouses, Gov. Wolf recently signed a bill allowing for victims/spouses of certain crimes to expedite their divorce filing.  

Most Bucks County divorce lawyers have represented a person in custody/incarceration.  The new law will presume the consent of the other party if they have been convicted of committing a personal injury crime against their spouse.  This would mean that the standard 2 year waiting period on a non-consent divorce goes away and there is a 90-day period like a consent divorce.  The bill goes into what a "personal injury crime" is defined as, but it involves some very serious crimes that are felonies (i.e. homicide, kidnapping, human trafficking) as well as some misdemeanors (i.e. assault).  By far, it appears that the "assault" issue will probably be the crime that triggers such a filing as it is the most common crime in domestic violence.  

So what is the timing of this filing?  First, note that the law states a "CONVICTED." HAVING BEEN FOUND GUILTY, HAVING ENTERED A PLEA OF GUILTY OR NOLO CONTENDERE OR HAVING BEEN ACCEPTED INTO ACCELERATED REHABILITATIVE DISPOSITION."  Since there needs to be a "conviction" under the bill, a spouse will have to wait many months for an adjudication on the underlying criminal charge.  So, it may make sense to file for the divorce after the conviction.  Therefore, this could take 6+ months before the conviction occurs as trials and criminal litigation takes a long time.  

But, there may be an argument, however, that a person can initiate a filing for divorce while the case is pending.  A judge most likely won't enter the order until the conviction occurs.  But, it can save time and essentially parallel the pending criminal charges.  It will be interesting to see how the courts treat these filings with respect to the timing.  

Over the past generation, the adoption rights movement in the United States has gained in both strength and political savvy.  Although there are no accurate national statistics on the number of adoptees who seek out the identity of their birth parents, the media in recent years has increased public awareness about adoption-related issues ranging from psychological ramifications of life without blood tie to embattled legislative efforts to unseal adoption records.  

Some adoptees feel the need to inspect their original birth certificates and will hire a Bucks County divorce lawyer to help.  Others simply want current medical histories.  Whatever the motivation, the resulting confrontation fits the cloak of confidentiality surrounding the adoption process against what some adoptees view to be their fundamental right -- and emotional need to know -- their biological origins.  

At the termination of adoption proceedings, the entire record is sealed and withheld from inspection except on an order of court granted upon cause shown under Section 2905(a).  Any disclosure with respect to the identity of birth parents may be made only with their consent.  Absent such consent, the disclosure of general information may be made only if such disclosure protects the anonymity of the birth parents under Section 2905(b).  

Under 28 Pa. Code Section 1.49(b), a birth parent may consent to the disclosure of his or her identity by filing a Biological Parent Registration Identification Form with the Division of Vital Records of the Department of Health.  Forms may be requested at 1-877-PA-Health.  

Section 2904 deals with when an individual interferes with the custody of children.  This can be filed by the district attorney in Bucks County or by way of a "private criminal complaint".  This should be consulted with a Bucks County divorce lawyer because it will be important to see what the implications could be for the underlying custody matter.  The sections states, 

§ 2904.  Interference with custody of children.

(a)  Offense defined.--A person commits an offense if he knowingly or recklessly takes or entices any child under the age of 18 years from the custody of its parent, guardian or other lawful custodian, when he has no privilege to do so.

(b)  Defenses.--It is a defense that:

(1)  the actor believed that his action was necessary to preserve the child from danger to its welfare; or

(2)  the child, being at the time not less than 14 years old, was taken away at its own instigation without enticement and without purpose to commit a criminal offense with or against the child; or

(3)  the actor is the child's parent or guardian or other lawful custodian and is not acting contrary to an order entered by a court of competent jurisdiction.

Custodial interference is a felony of the third degree.  A person convicted under Section 2904 of the Crimes Code may be sentenced to imprisonment for not more than seven years and should get a private Bucks County criminal lawyer.  

The defendant must knowingly or recklessly take or entice any child under 18 from the custody of the child's parent, guardian, or other lawful custodian -- when the defendant has no privilege to do so.  Taking connotes a substantial interference with parental control and requires an affirmative physical removal of the child.  Enticing means to wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax or seduce.  

In promulgating Section 2904, the Commonwealth of Pennsylvania followed the lead of the Model Penal Code and removed from the general crimes of kidnapping the special case of custodial interference.  Custodial interference is distinguishable by the fact that the defendant is usually a parent or other relative who is favorably disposed toward the child and who does not think of his or her actions as harmful.  

Pennsylvania's child support guidelines make financial support of a child a primary obligation. They assume that parties with similar net incomes will have similar reasonable and necessary expenses. After the basic needs of the parents have been met, the child's needs shall receive priority. The guidelines assume that if the obligor's net income is less than $ 550, he or she is barely able to provide for basic personal needs. In these cases, entry of a minimal order is appropriate after considering the party's living expenses. In some cases, it may not be appropriate to order support at all.  

Pennsylvania's child support guidelines and every Bucks County divorce lawyer use the net incomes of the parties, and are based on the assumption that a child's reasonable needs increase as the combined net income of the child's parents increases. Each parent is required to contribute a share of the child's reasonable needs proportional to that parent's share of the combined net incomes. The custodial parent makes these contributions entirely through direct expenditures for food, shelter, clothing, transportation and other reasonable needs. In addition to any direct expenditures on the child's behalf, the non-custodial parent makes contributions through periodic support payments.

The case of Ricco v. Novitski, 2005 PA Super 121 (Pa. Super. Ct. 2005) highlights a procedural posture where Appellant, a mother of a profoundly disabled teen-ager, challenged a Columbia County Common Pleas Court, Civil Division, order that, on review of an administrative determination of appellee father's child support obligation, applied a Pa. R. Civ. P. 1910.16-5 downward deviation from guidelines amounts that eliminated the father's obligation, based on a finding that the child was provided for by a special needs disability trust.

Remember -- for a case to get this far and be reviewed, when evaluating a support order, the Pennsylvania Superior Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. It will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill-will, discretion has been abused. 

In the case, the child had been profoundly disabled from birth. The mother placed the proceeds of a medical malpractice settlement in a special needs disability trust as authorized under federal law. After expenditures for a house and car adapted to the child's needs, the mother received $ 500 per month that she used solely for the child's special needs, such as socialization experiences, but paid his ordinary expenses herself. The trial court had granted a downward deviation from the guidelines that left the father with no obligation whatsoever, on the grounds that the mother had paid for her house and car with trust money, so that it would not be fair to impose a support obligation on the father. The appellate court held that this was an abuse of discretion. The guidelines authorized elimination of the obligation only in cases involving parents with almost no income. In every other case, parents were expected to provide support. In the case before it, the trust's purpose was to enable the custodial parent to provide for the child's special needs. Moreover, it would have to provide for all his needs one day, especially if he outlived his parents.

The child had been profoundly disabled from birth. The mother placed the proceeds of a medical malpractice settlement in a special needs disability trust as authorized under federal law. After expenditures for a house and car adapted to the child's needs, the mother received $ 500 per month that she used solely for the child's special needs, such as socialization experiences, but paid his ordinary expenses herself. The trial court had granted a downward deviation from the guidelines that left the father with no obligation whatsoever, on the grounds that the mother had paid for her house and car with trust money, so that it would not be fair to impose a support obligation on the father. The appellate court held that this was an abuse of discretion. The guidelines authorized elimination of the obligation only in cases involving parents with almost no income. In every other case, parents were expected to provide support. In the case before it, the trust's purpose was to enable the custodial parent to provide for the child's special needs. Moreover, it would have to provide for all his needs one day, especially if he outlived his parents.

The court reversed the order and remanded the matter to the administrative agency to recalculate the father's obligation in accordance with the guidelines.