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Family Law

From divorce to child custody to paternity tests, family law attorneys deal with some of the most contentious matters in society. If you are facing a critical family law issue, an experienced Pennsylvania divorce lawyer can explain your options and work toward the best outcome for you and your family. 

Divorce and Separation

Divorce and separation represent drastic changes to families. Separating spouses often seek competent legal representation during this trying time to help make it to the other side of the divorce in an optimal position. 

In Pennsylvania, divorces are either no-fault or fault-based. With a fault-based divorce, the spouse filing for divorce must put forth legal grounds, such as:

  • Abandonment of more than one year
  • Adultery or bigamy
  • Cruel treatment
  • Institutionalization 
  • Imprisonment for more than two years

When the divorce is no fault, there need not be specific actions or reasons for the divorce.

Property Division in Divorce Cases

Property division is one of the most important tasks of divorce proceedings. If spouses cannot mutually agree on how to split up marital property, the courts will do it for them based on the principle of equitable distribution. 

Equitable distribution is a situation-based standard that requires the judge to appraise the circumstances of each case and consult established guidelines to determine what is fair for each spouse. 

For example, in one case, a court might properly find that the marital home should be sold and the proceeds split between the spouses. In another case, however, the judge may decide that only one of the spouses gets the proceeds from the sale.

In any case, the courts must first distinguish between nonmarital and marital property. Nonmarital property can legally be excluded from the equitable distribution process. It may include:

  • Assets acquired before marriage
  • Gifts, except for gifts between spouses
  • Inheritances

Property excluded in a prenuptial agreement is also considered nonmarital property.

Alimony and Spousal Support

When some marriages end, the parties face a financial gap; one spouse suddenly has to deal with a drastically different financial situation. In these marriages, one person provided most, if not all, of the financial support for the family. Without this support, the nonworking spouse may find themselves in desperate need of income. 

As with other family law decisions, judges take various factors into account when determining whether alimony should be ordered and how much it should be. The Pennsylvania Code lays out these specific factors:

  • The relative earnings and earning capacities of the parties.
  • The ages and the physical, mental and emotional conditions of the parties.
  • The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
  • The expectancies and inheritances of the parties.
  • The duration of the marriage.
  • The contribution by one party to the education, training or increased earning power of the other party.
  • The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
  • The standard of living of the parties established during the marriage.
  • The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
  • The relative assets and liabilities of the parties.
  • The property brought to the marriage by either party.
  • The contribution of a spouse as homemaker.
  • The relative needs of the parties.
  • The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under section 6102 (relating to definitions).
  • The federal, state and local tax ramifications of the alimony award.
  • Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.
  • Whether the party seeking alimony is incapable of self-support through appropriate employment.

Although Pennsylvania is a no-fault divorce state, the court is permitted to take into account the misdeeds of each spouse during the marriage when deciding on alimony. However, actions committed after a legal separation has commenced do not apply. 

Child Custody and Support

Although Pennsylvania is a no-fault divorce state, the court is permitted to take into account the misdeeds of each spouse during the marriage when deciding on alimony. However, actions committed after a legal separation has commenced do not apply. 

This doesn’t mean that the rights and interests of the parents do not matter; it simply means that the child’s well-being is the top priority. When a parent’s preference conflicts with the best interests of a child, the court should choose the child every time. 

Child Custody in Pennsylvania

Pennsylvania law is clear that the child’s well-being prevails in family law hearings involving children, such as custody and support issues. There are two main types of child custody in Pennsylvania, both with several subcategories. 

Legal Custody

Legal custody grants a parent legal authority to make life decisions on behalf of the child, such as decisions relating to the child’s:

  • Health and medical treatment
  • Education
  • Religion
  • Finances

When making its decision, the court can potentially grant sole legal custody, in which only one parent can make these decisions for the child, or shared legal custody, in which both parents work together to make these decisions. 

Physical Custody

When a parent has or is granted physical custody, it means that the child will be living with them. Generally, the noncustodial parent must make regular child support payments. 

Physical custody can take many forms:

  • Sole Physical Custody: The child lives with only one parent 
  • Primary Physical Custody: One parent houses the child the majority of the time
  • Partial Physical Custody: One parent spends substantially less time with the child
  • Shared Physical Custody: The child spends a substantial amount of time with each parent
  • Supervised Physical Custody: The court orders a third party to be present at all visitation events 

Sole physical custody is rare in Pennsylvania, especially if both parents pursue custody. Generally, the court will consider the family’s unique circumstances to determine a co-parenting schedule that furthers the best interests of the child. 

Factors Considered in Child Custody Cases

The courts must consider a list of statutory factors when making decisions related to child custody. These factors should give the court a good idea as to which living situation is more likely to be best suited for the child:

  • Which spouse is more likely to encourage and foster the child’s relationship with the other parent
  • Whether either parent has exhibited abusive behaviors
  • Each parent’s current and previous child-rearing duties
  • The child’s need for stability and continuity
  • The relationship between the child and their siblings
  • Which spouse is more likely to sustain a stable and loving environment for the child
  • How near to one another the spouses’ residences are
  • Whether either parent has a history of drug or alcohol abuse
  • Whether each parent’s schedule and circumstances allow them to provide care for the child and make the appropriate arrangements for childcare

In total, there are at least 16 factors the court can rely on to make its decision.

Calculation and Enforcement of Child Support Orders

Generally speaking, four main factors play a role in the calculation of child support:

  • The terms and schedule of the physical custody arrangement
  • The number of children in question
  • Each party’s after-tax monthly income
  • Other relevant expenses incurred while caring for the child or children

The parent who has primary custody (custody for more than 50% of the time) is more likely to receive child support. Additionally, if the parent who pays child support has more than 40% overnight custody of a child, they will be entitled to a discount on their child support payments. If both parents equally split custody, the child support payments will go to the parent with the lower income. 

To determine the amount of child support, the court adds each parent’s monthly income. The court then divides each parent’s income by the total of both of their incomes to come up with a percentage of support owed.

Modification of Child Custody and Support Orders

Situations change over the years. Sometimes, these changes make a court’s original support or custody order unsuitable under the new circumstances.

Fortunately, the law allows parents to petition the court for modifications to child support and child custody orders. For changes to child support orders, the court requires a substantial and unforeseeable change in one or both parties’ situations to authorize a modification. Changes of this nature might include:

  • Loss of employment
  • A significant promotion
  • Moving away
  • Cuts in pay and layoffs
  • Medical problems 
  • Disability
  • Material changes in the child custody schedule
  • Imprisonment of a parent

When parents seek to modify child custody orders, the court will once again default to the best interests of the child by considering the factors listed in the controlling statute.

If you need to modify a child support or custody order, it is recommended that you speak with a child custody and support lawyer at the outset. Your attorney will help you navigate the modification process and fight to get you the results you need. 

Domestic Violence and Protection Orders

Domestic violence or abuse in Pennsylvania encompasses violence, force, or the threat of violence or force within a family or an intimate relationship. These behaviors may qualify as domestic abuse:

  • Hitting, kicking, striking, throwing, or choking
  • Emotional abuse that includes name-calling, threats, and put-downs
  • Sexual abuse or sexual violence
  • Financial abuse 
  • Destruction of personal belongings
  • Harming pets
  • Preventing someone from going to work or leaving the home
  • Preventing someone from seeing their family

Abuse victims can seek legal protection with a Protection from Abuse Order (PFA). A PFA is a court order mandating that a party not make contact with or be near a certain person or persons, typically:

  • Someone who lives in their home
  • A family member
  • A current or former intimate partner
  • A co-parent

If you are facing a domestic violence situation, the police can help to stop the immediate threat with criminal charges. For long-term help, seek an attorney to file for a PFA. 

Other Family Law Issues

Pre- and postnuptial agreements are other common family law issues. These are legal contracts that outline how spouses will divide their property and assets should they ever divorce. Family law attorneys can help clients draft enforceable pre- and postnuptial agreements that will hold up later on down the line. 

Another family law issue involves grandparents’ rights. In Pennsylvania, grandparents may have the right to see their grandchildren, depending on the circumstances. In some cases, grandparents may even seek custody of their grandchildren. A family law attorney can explain the factors that support visitation or custody rights for grandparents.

Consult an Experienced PA Family Law Attorney About Your Situation

If you are facing a family law issue, the stakes are high, which is all the more reason to entrust your case to an experienced Pennsylvania family law attorney. At McCormick and Vilushis, we fight to resolve your family law issues as if they were our own. Contact us for a case review and consultation, and let’s discuss your options.

 

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