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Custody/Divorce

Below is a conversation with Attorney Timothy Barrouk, Esquire in which he answers questions commonly asked by his clients. . .

Choosing an attorney to handle your domestic dispute is one of the most important decisions you will make in your life. Why? Because you only have one chance to resolve your property issues, support, custody, alimony and other issues. You cannot go back and "un-ring" the proverbial bell. Once decided no matter how unfair, these things can be modified later if you make a mistake, but you will incur more legal fees, time from work, aggravation, stress and other problems. Make the right choice now and you can have peace of mind. Choose someone who will fight FOR YOU and YOUR FAMILY! Call 1-866MCSHANE. Be aware of the "Jack of all trades, but the master of nothing" mentality prevalent among attorneys today. When you speak with us, you get answers. When you speak with others are you getting answers or just general statements in response to your questions?


Q: Do you fight for your clients?

A: If you want a go-along-to-get-along defense attorney, then don't retain me. If you want someone who is going to charge you a ridiculous sum of money and not do anything and not return your phone calls, then go elsewhere. Do you want an attorney who will always quickly return your phone calls? Do you want an attorney who will always be "up front" with you and always tell you the truth? Do you want an attorney who doesn't shy away from Court? Do you want an attorney who has the reputation, knowledge and experience to maximize your chances of getting exactly what you want or more? Do you want an aggressive attorney who recognizes the thin line between pushing too much to jeopardize your situation and not pushing enough to put you in a worse situation? Do you want an attorney who will not treat you like an invoice to be paid? Do you want an attorney who is available twenty-four (24) hours a day who can be moments away in the case of emergencies? If you answer "yes" to all of the above, then contact us immediately. We are available twenty-four (24) hours a day. Call 1-866-MCSHANE now!
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Q: What hours can I set up an appointment?

A: Just call me at 1-866-MCSHANE. I can set up early morning appointments, after work and even weekend appointments. Over the phone immediate phone conferences are available upon demand regardless of the hour.
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Q: Do you accept time payments?

A: We bill a reasonable retainer and bill against it by our hourly rate. We do accept checks and all major credit cards as well as debit cards, checks by phone, credit cards by phone, debit cards by phone, Western Union wire transfers, checks over the internet, debit cards over the internet and credit cards over the internet. The Rules of Professional Conduct mandate that we cannot accept a case that the fee is contingent of the outcome.
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Q: What determines custody questions in Pennsylvania?

A: In making an award of custody, between parents, the court must consider the best interest of the children. Overnight visitation is called "partial custody" in Pennsylvania. Any custody order is reviewable upon any change of circumstances. A child's desires with regard to custody and partial custody are given more weight as the child gets older. Until age 12 such desires have very little weight. Third parties can obtain custody only rarely. Grandparents have a right of visitation that is statutorily guaranteed in some situations, particularly where their child, the parent of their grandchildren has died or is separated from the grandchildren's other parent. The parent without physical custody of the child has a legal right to visitation with that child. It should be remembered that the right to visitation is just as much the child's right as a right of the parent. The court can appoint an attorney to represent the child. This type of attorney is called a guardian ad litem.
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Q: In Pennsylvania do grandparents have any rights in terms of custody?

A: Grandparents have legal rights in custody decisions. If one parent dies, the child's grandparents or great grandparents have the right to seek partial custody or visitation rights. If a child has lived with a grandparent for more than 12 months, that grandparent may seek custody. However, a grandparent may get custody only if there is no conflict between the grandparent and a parent. Courts are extremely reluctant to interfere with the parent-child relationship.
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Q: In Pennsylvania, how is it determined where a child goes and with whom?

A: Pennsylvania custody law is intended to promote the child's best interests, but the law contains no definition of the child's best interests. Where a court is asked to make a custody determination, it considers several factors, including:
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Q: I am confused. What do all of these terms mean?

A: There are specialized legal terms in custody that you must be aware of in order to stand a chance in Court and to make sure that you know what you are agreeing to and the consequences of agreeing to any particular disposition.

In Pennsylvania, technically, there is no such thing as "joint custody" or "primary custody," which may cause confusion.
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Q: I am facing a contempt proceeding. What does this mean?

A: In Pennsylvania, if either parent fails to comply with a custody order, a request for a hearing on the issue of contempt must be presented and a hearing must be conducted by a judge to determine if the person has violated the order of court. If a person willfully disobeys a Pennsylvania custody order, the judge could find that person in contempt of the court order and sanctions could be imposed.



Sanctions for disobeying a Pennsylvania custody order could include imprisonment, assessment of attorney fees, or transfer custody to the noncustodial parent if the custodial parent continually violates a custody order. If the noncustodial parent violates the order, the judge could modify and reduce or otherwise change the noncustodial parent's custody rights. Furthermore, Pennsylvania and all other states have adopted some version of the Uniform Child Custody Jurisdiction Act (UCCJA), which provides that courts will recognize and enforce custody orders entered in other states so as to prevent child abductions or parental kidnapping.



Moving to another county or state without advance notice to the non-custodial parent and an order of court permitting the relocation is frowned upon by the courts and could result in severe repercussions, including loss of custody rights.


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Q: Tell me about child support, would you?

A: If the parents of a minor child where never married, and in some limited circumstances even when the parents were married prior to the birth of a child, the alleged father may have the right to request paternity testing to confirm parentage. (See Ms. West's article in the "News" section for more information.) Most counties in Pennsylvania now utilize DNA testing to confirm parenthood. DNA testing may be performed by utilizing blood samples, by swabbing the interior of a person's mouth for cells, or by other methods. If paternity is acknowledged by the alleged father or if it is established by DNA testing or otherwise, the determination of the proper amount of child support may then be calculated. Click here for an illustration of the DNA testing process.



Pennsylvania Child Support

In Pennsylvania, child support is payable until a child reaches the age of 18 or graduates from high school, whichever is later. However, a duty of support may continue beyond the age of eighteen, if a child that is unable to support himself or herself because of a physical, mental or emotional disability. The Pennsylvania Supreme Court declared that parents cannot be forced by a court to pay for college expenses of a child unless the parent has signed a written agreement providing for college support. The amount of child support that is payable in a case is based upon the incomes or earning capacities of the child's parents.



How is income defined?

Income for support purposes includes such things as wages, salaries, overtime pay, commissions, bonuses, interest, rental income, retirement income, Social Security retirement or disability payments, workers compensation, unemployment compensation, income from an interest in a business, entitlements to lump sum awards such as lottery winnings and any other sources of income. If a person does not have any income, but is capable of working, the parent may be accessed with an earning capacity. Rather than using gross or before tax income, the court uses the monthly net, or after tax, incomes of each parent. Net income for support purposes is oftentimes different than the amount of money received in a parent's paycheck or what is listed on the parent's tax returns. For support purposes, net income is defined as gross income minus actual federal, state, and local income taxes, union dues, non-voluntary retirement payments, F.I.C.A. payments, and alimony payments paid to the other party.



Self-employed individuals

For self-employed persons, determining the amount of income available for support purposes may be difficult. Self-employed persons may not accurately report all of their income on tax returns or may take as deductions certain expenses that are actually personal expenses. For support purposes, certain expenses that are deductible for tax purposes may not be deductible from income for support purposes. The support court will carefully scrutinize the income claimed on tax returns for these reasons.



Pennsylvania Support Guidelines

Once the parents' monthly net incomes are calculated, the court applies the Pennsylvania Support Guidelines to determine the amount of support payable for the children. The Guidelines are formulas that consider the income of the parents, the number of children, and other factors. The Guidelines try to approximate the proportion of the parents' income that would have been spent for child support if the family was not residing in separate households. Child support may include, above the recommended Pennsylvania Support Guideline amount, medical coverage for the dependent spouse or children, payment of unreimbursed medical expenses, private school tuition, day care costs while the custodial parent is working or going to school and other recurring costs. On the other hand, child support may be established below the Guideline amount in some situations such as when the parents have shared physical custody, or the payor has other families or children to support.



If the parents of a child entitled to support earn more than fifteen thousand dollars per month, the Pennsylvania Support Guidelines are not utilized to determine the proper amount of support. Instead, the court looks to what are the "reasonable needs" of the minor child considering the parents' combined incomes. This reasonable needs analysis is often referred to as a "Melzer case" after the Pennsylvania case law that originally established this method for calculating support in high income cases.
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Q: What about step-parents, do they have rights and obligations?

A: An area of family law that is particularly satisfying, our law firm enjoys helping families welcome new members through the adoption process. A step parent adoption is desirable when a child resides with a biological parent who has married a person who is not the child's biological parent, but who wants to adopt the child. Frequently, step parent adoptions occur with the consent of both biological parents. Sometimes, however, step parent adoptions are complicated and are the subject of intense litigation. Whether consensual or not, our law firm can provide you with representation in any Pennsylvania step parent adoption case.



Custody Rights of Pennsylvania Step-parents

Step-parents may have the right to sue a custodial parent for partial custody or visitation of the custodial parent's minor children. This generally occurs when the stepparent and custodial parent have resided together and assumed the joint role of supporting and caring for the custodial parent's children. If the custodial parent denies access to the stepchildren, a step-parent can file a complaint for partial custody or visitation. In limited circumstances, if the step-parent's spouse was the custodial parent and dies, the step-parent may be able to be awarded primary custody of the custodial parent's minor children even if there is a surviving biological parent or other blood relatives.



Support Obligations of Pennsylvania Step-parents

Step-parents are not liable for the support of their stepchildren except in very limited and rare circumstances. Furthermore, a step-parent's income is not a factor in determining the amount of support that a parent will pay or a parent will receive for child support.
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Q: What about credit card debt in divorce?

A: Generally, in Pennsylvania, marital debt includes any debt incurred during the marriage, regardless of how titled. As with all general rules, there are exceptions and limitations. If you feel that certain debt should not be marital, begin to gather documentation, such as statements documenting what was purchased. As a drastic example, if all of the credit card debt is due to one spouse’s gambling habit, a court may not consider that debt marital and instead ask the spouse who is responsible for incurring the debt to repay it. After separation, in order to keep things orderly, it is a good idea to keep non-marital debt separate. Open a new credit card for post-separation spending. Try not to continue using credit cards that still carry marital debt. If you are able, close joint credit cards at separation. If your spouse if an authorized user on your credit card, investigate whether he or she can be removed. This may save a headache later by keeping post-separation debt separate and giving you peace of mind that your spouse is not racking up debt in your name. Sometimes couples choose to pay off debt with marital assets in order to provide for a fresh start. Whatever the plan, continue to pay all minimum payments so that your credit is not affected.
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Q: I have been co-habitating (living) with someone without being married and now they are threatening to divorce me and want all of my stuff, can they do that?

A: Effective January 1, 2005, Common Law Marriage was abolished in Pennsylvania. This applies only to all common law marriages entered into after January 1, 2005. As to all common law marriages properly entered into before January 1, 2005, these "marriages" will remain valid if they can be proven to be valid as required by law.

In order for a common law marriage to be found to be valid, the party must prove that the man and the woman, before two witnesses, declared their present intent to be married by saying to each other words similar to: "From this date forward, I consider you to be my [wife] [husband]." There are no "magic words"; they only need to convey a present tense intent to be married.

If you cannot prove such a ceremony, then you may be able to prove that you are common law married by proving that you held each other out to be Husband and Wife to community. You would do that showing that, for example, you both used the same last name, filed tax returns as married, introduced each other as Husband and Wife, paid bills in the married name, bought property in the married name, etc. There is no magic formula to prove that you are married; it is evaluated on a case by case basis.
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Q: What about retirement plans?

A: Sometimes retirement plans can be the single biggest asset in a marriage. It cannot be ignored. If, as part of the distribution of the assets, the parties decide to divide a retirement plan, a Qualified Domestic Relations Order is usually required, called QDRO for short (pronounced "Quadro"). What is a Qualified Domestic Relations Order? A Qualified Domestic Relation Order is a domestic relations order (court order) that creates or recognizes the existence of another person’s right to receive, or assigns to another person the right to receive, all or a portion of the benefits in a retirement plan. By law, a QDRO must include certain information and meet certain requirements.

Generally speaking, a party cannot touch their retirement benefits until they are of retirement age, without incurring current taxes and penalties. A QDRO divides the retirement benefits at the source and places a portion (or all of the assets) in another person’s name without incurring the tax liability or penalties, even if the parties are nowhere near retirement age.

In some marriages, only one individual is contributing to a retirement plan. The other spouse may not be working or may not be earning enough to contribute to a plan. Sometimes, for cash flow reasons, only one party contributes to a retirement plan while the other pays certain bills or expenses. Upon separation or divorce, a QDRO provides the mechanism to divide this asset, without incurring current taxes or penalties.
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Q: Can I divorce in Pennsylvania and how long does it take?

A: A party must have lived in Pennsylvania for at least six months before having a right to sue for divorce. There may be cases where some parties have no right to sue in any state for divorce until residency is acquired. A mutual consent no-fault divorce takes about four to five months right now. There is a 90 day "cooling -off" period after the complaint is filed. After the cooling-off period expires both parties may file affidavits of consent and the divorce decree is entered thereafter. At the other end of the time spectrum a contested divorce can last years with the average contest lasting a year or more. The division of property and liabilities can follow the same time line or can continue independently.
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Q: How is property divided in Pennsylvania?

A: Pennsylvania is a "equitable property" state. This means that all marital property acquired during the marriage should be divided equally. The "marital" property, consisting of any other property acquired by either spouse during the marriage, will be divided equally, unless the court finds that equal division would be unjust. Any property possessed by either spouse during the marriage is presumed to be marital property unless it can be shown that the property is actually separate property. A court can determine the rights of the spouses in any pension or retirement plan or their rights under any insurance policy. Marital property includes all earnings during marriage and everything acquired with those earnings. All debts incurred during marriage, unless the creditor was specifically looking to the separate property of one spouse for payment, are marital property debts. Non-marital property of one spouse includes gifts and inheritances given just to that spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested (that is, the pensioner became legally entitled to receive it) before marriage. Property purchased with the separate funds of a spouse remain that spouse's separate property. A business owned by one spouse before the marriage remains his or her separate property during the marriage, although a portion of it may be considered Marital property if the business increased in value during the marriage or both spouses worked at it. Property purchased with a combination of separate and marital funds is part marital and part non-marital property, so long as a spouse is able to show that some separate funds were used. Non-marital property mixed together with marital property generally becomes marital property.
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