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jbmartinlaw1 · 3 years

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Pennsylvania Durable Power of Attorney

A Durable Power of Attorney or “POA” under Pennsylvania Law is a written document in which the principal designates or appoints another as his or her agent. The “durable” nature of the authority conferred upon the agent is exercisable notwithstanding the principal’s subsequent incapacity or disability.

Powers Granted to an Agent

The principal should consider giving broad powers to the agent for the following transactions:

Tangible personal property

Stock, bond and other securities

Commodities and options

Banking and financial

Insurance and annuities

Litigation and resolution of claims

Retirement plans

Government benefits

Tax matters

Operating a business

Borrowing money

Entering a safe deposit box

Other powers a principal should consider giving the agent include:

Making limited gifts

Creating, amending, or revoking an inter-vivos trust

Creating or changing rights of survivorship

Creating or changing a beneficiary designation

Delegating authority granted under the power of attorney

Waiving the principal’s right to be a beneficiary of an annuity

Exercising fiduciary powers that the principal has authority to delegate

Disclaiming property

Accessing electronic communications and digital assets of the principal.

A principal can appoint more than one agent. If the principal appoints more than one agent, the principal should specify whether the co-agents must act together or whether they can act independently of one another. Nevertheless, it is important for them to communicate with one another to make certain that their actions are consistent.

The principal should also designate a successor agent to step in and act if the original agent can no longer serve.

Call (215) 646-3980 To Talk To Our Estate Law Attorney

“Springing” Power of Attorney

A principal has two options for establishing when the agent has the legal authority to act. The principal may provide that the power shall become effective immediately upon proper execution of the power of attorney document. The other option is for the principal to allow for the agent to act only at a specified future time or upon the occurrence of a contingency. When the power of attorney becomes effective at a later time, this is often referred to as a “springing” power. One common example of a springing power is a contingency that the agent can only act when the principal is determined to be incapacitated or disabled.

Power of Attorney Legal Requirements

To be valid, the power of attorney must be written, dated, and signed by the principal. The power of attorney can be signed by another individual on behalf of the principal if the principal cannot sign and if the principal specifically directs the individual to sign the power of attorney on his or her behalf. The power of attorney must also be signed by two witnesses in the presence of a notary. Witnesses must be at least 18 years of age and cannot be the person who is signing on behalf of the principal, an agent designated in the document or the notary. The POA must include a notice section at the beginning of the document. The contents of the notice section must be in capital letters and signed by the principal. The contents of the notice are set forth in the Pennsylvania Code. The agent must also sign an acknowledgment in the form set forth in the Pennsylvania Code.

Agent Duties and Responsibilities

The Agent is considered a “fiduciary” which means that the agent is held to the highest standard of good faith, fair dealing and undivided loyalty with respect to the principal. Generally, the agent must always act in good faith and in the principal’s best interest. An agent must also act in accordance with the principal’s reasonable expectations to the extent actually known by the Agent and within the scope of authority granted in the power of attorney.

The Agent must do all the following:

Keep the Agent’s funds separate from the principal’s funds unless the funds were not kept separate as of the date of the execution of the power of attorney or the principal commingles the funds after the date of the execution of the power of attorney and the agent is the principal’s spouse.

Avoid any conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interests.

Act with appropriate care, competence and diligence ordinarily exercised by agents in similar circumstances.

Keep a record of all receipts, disbursements and transactions made on behalf of the principal.

Cooperate with a person who has authority to make healthcare decisions for the principal.

Attempt to preserve the principal’s estate plan considering all relevant factors such as the value and nature of the principal’s property, minimization of taxes, and eligibility for benefits and assistance under a statute or regulation.

Call (215) 646-3980 To Talk To Our Estate Law Attorney

Disclosure of Receipts, Disbursements, or Transactions

Unless otherwise provided in the power of attorney, the agent does not have to disclose receipts, disbursements, or transactions conducted on behalf of the principal. It is highly recommended that the agent keeps receipts and records of disbursements or transactions because the agent may be ordered to disclose them by a court. Others can also compel the agent to disclose receipts, disbursements, or transactions. Pennsylvania law requires the disclosure when requested by the principal, guardian, conservator, another fiduciary acting for the principal, government agency, or the personal representative or successor in interest to the principal’s estate.

Account

Pennsylvania law also requires the agent to file an account when ordered to so by the court. An account is a formal document that identifies all transactions of the agent. Since the agent may be required to disclose receipts, disbursements or transactions or the agent may be ordered to file an account, the agent should keep very detailed records.

Revoking the Power of Attorney

The principal may revoke the power of attorney at any time. All he or she needs to do is send the agent a letter notifying the agent of the revocation. The appointment of a conservator or guardian does not immediately revoke the power of attorney; however, a conservator or guardian has the power to revoke the power of attorney.

Agent Compensation and Expense Reimbursement

Agents are entitled to reasonable compensation for their services. In many cases, the agent is a family member and does not expect to be paid. If the agent wants to be compensated, the agent and principal can reach an agreement on the amount of compensation. This could include, for example, an hourly fee or a fixed monthly fee. If no agreement exists, then the agent should determine what is reasonable. It is important to remember that the court has oversight on what is considered reasonable. Therefore, the agent should document the services provided and the time spent. The agent can assign a reasonable hourly rate or some other form of compensation that is reasonable and commensurate with the services being provided. The agent is also entitled to reimbursement for actual expenses advanced on behalf of the principal and to reasonable expenses incurred in connection with the performance of the agent’s duties.

Filing and Recording the Power of Attorney

It is not necessary to file and record a power of attorney. An originally executed power of attorney may be filed with the clerk of the orphans’ court division of the court of common pleas in the county in which the principal resides; in the office for the recording of deeds of the county of the principal’s residence; and in each county in which real property to be affected by an exercise of the power is located. The clerk of the orphans’ court division or any office for the recording of deeds with whom the power has been filed may, upon request, issue certified copies of the power of attorney. Each such certified copy shall have the same validity and the same force and effect as if it were the original, and it may be filed of record in any other office of this Commonwealth (including, without limitation, the clerk of the orphans’ court division or the office for the recording of deeds) as if it were the original.

Photocopy

A photocopy or electronically transmitted copy of an originally executed power of attorney has the same effect as the original.

Death of the Principal

Upon the death of the principal, the power of attorney is automatically invalid. The agent no longer has any authority to act on behalf of the principal.

Durable Power of Attorney – The Martin Law Firm, P.C.

A durable power of attorney should be incorporated into an estate plan along with a last will and testament, medical power of attorney, and a living will. The Martin Law Firm, P.C. routinely assists individuals and married couples with the creation of an estate plan to achieve specific objectives and help secure the financial future. Call us today for a free case evaluation at 215-646-3980.

The post Pennsylvania Durable Power of Attorney appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/pennsylvania-durable-power-of-attorney/

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jbmartinlaw1 · 3 years

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Analyzing Pennsylvania’s Child Custody Factors

Child custody cases in Pennsylvania should be resolved in a manner that focuses almost exclusively on the child’s “best interests”. The “best interests” of a child generally include a child’s happiness, health (mental and physical), overall development and security. In the context of a custody trial, a family court judge will make a “best interest” determination after applying testimony and evidence to specific factors that are enumerated in the Pennsylvania child custody law. Most child custody cases are resolved prior to trial through a negotiated settlement. One way to approach a child custody case with the objective of reaching an out of court settlement is to objectively analyze each child custody factor in the context of the specific situation. After all, this is the same approach the court will take before the court makes a final determination. It is important to note that courts may give more weight to certain factors, but courts will analyze all of them.

CHILD CUSTODY FACTOR 1: Which party is more likely to encourage and permit frequent and continuing contact between the child and another party?

Even though parents may not be together, for purposes of co-parenting, they must make the child feel as though both parents are supporting one another and encouraging communication between themselves and the child. The court does not look favorably when one parent appears to be obstructing the child’s contact and relationship with the other parent. Parents should encourage the child to call or FaceTime the other parent. If the court believes that a parent discourages such contact, then that parent may have a difficult time convincing a judge that increased custody time is in the best interest of the child.

CHILD CUSTODY FACTOR 2: The present and past abuse committed by a party, whether there is a continued risk of harm to the child and which party can provide adequate physical safeguards and supervision of the child.

This is perhaps the most important factor for the court to consider because courts give more weight to the factors that affect the safety of the child. Unfortunately, some child custody cases involve physical and emotional abuse by a parent towards a child. In these cases, the court will always protect the child from harm. Evidence of physical abuse can include testimony by the child or a treating physician or conclusions by Pennsylvania’s Child Welfare Services following an investigation. Physicians and other health care providers by law must report instances of abuse or suspected abuse. Parents who have documented anger management problems may have to overcome any negative inference that such anger occurs towards the child.

CHILD CUSTODY FACTOR 3: The parental duties performed by each parent on behalf of the child.

Parental duties include cooking, cleaning, bathing, feeding, and dressing the child. Parental duties also include promoting the child’s education development, cultivating relationships with the child’s friends and their family, and attending to the child’s emotional and physical needs.

CHILD CUSTODY FACTOR 4: The need for stability and continuity in the child’s education, family life and community life.

Children need stability and continuity. Children need consistency with matters such as where they go to school, where their friends are located, the activities they are involved with and relationships with family. To determine whether a custody arrangement would adversely impact a child’s stable environment, the court will want to explore the distance between the parent’s residences from one another. If one parent lives far from the child’s school and the distance will negatively impact the child’s ability to interact with friends, do homework or stay involved with extracurricular activities, then the court may want to reduce the amount of time the child spends with that parent.

CHILD CUSTODY FACTOR 5: The availability of extended family.

Courts consider the child’s exposure to grandparents, aunts, uncles, cousins and other family members. This factor may be less important since each parent’s extended family can vary depending on the number of family members and proximity. The court will certainly want to make sure that the child is surrounded by loved ones when possible.

CHILD CUSTODY FACTOR 6: Child’s sibling relationships.

Courts also consider the child’s exposure and relationship to siblings and how the custody arrangement may impact those relationships.

CHILD CUSTODY FACTOR 7: The well-reasoned preference of the child.

For this factor, the age of the child is important. A child who is 3 years old cannot communicate a well-reasoned preference; however, older children can. Judges will want to know how the child feels about the custody situation. This factor is very important so long as the preferences of the child are “well-reasoned”. If the child prefers to be with a parent because that parent is rarely at home and does not impose strict parental guidance on the child, then the court will not consider the child’s preference to be “well-reasoned”. However, if the child wants to spend more time with a parent because they are more comfortable and it’s a more stable environment, then the Judge will pay attention to the specific facts and circumstances and give deference to the child’s wishes.

CHILD CUSTODY FACTOR 8: The attempts of a parent to turn the child against the other parent.

Judges will not tolerate a parent who attempts to turn the child against the other parent. Parents need to encourage the relationship of the child with the other parent, not destroy it.

CHILD CUSTODY FACTOR 9: Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs?

This factor is often considered with Factor 10.

CHILD CUSTODY FACTOR 10: Which party is more likely to attend to the daily physical, emotional, development, education and special needs of the child?

Parents need to be more than just friends with the child or glorified baby-sitters. Parents must be proactive in helping the child mature with confidence and prepare them for their future. Courts want to know what the parents are doing to be proactive in the child’s development including homework, healthy meals, hobbies and activities, extra-curricular activities, etc.

CHILD CUSTODY FACTOR 11: The proximity of residences.

If parents live close to one another, the court will view this as less disruptive for the child. The court may look to whether the parents live in the same school district, for example, so that the distance will not interfere with the child’s educational needs and scholastic activities.

CHILD CUSTODY FACTOR 12: Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

Court’s will look at the parents’ work schedules and general availability in determining an appropriate custody award. Courts will prefer to give a parent additional physical custody time as opposed to the child spending that time in day care.

CHILD CUSTODY FACTOR 13: The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.

If parents are fighting with one another and are having a difficult time communicating with one another, the court will want to know how this could impact the child and the court will take steps to mitigate this circumstance.

CHILD CUSTODY FACTOR 14: History of drug and alcohol abuse.

Drug or alcohol abuse usually impact a parent’s ability to care for the child. Courts will be very diligent when there are allegations of drug and alcohol abuse and will often order an evaluation of that parent.

CHILD CUSTODY FACTOR 15: The mental and physical condition of a party or member of a party’s household.

The court wants to know if there are any mental or physical conditions by either parent or by someone who lives with either parent which may interfere with the child’s development.

In conclusion, each of these factors must be carefully considered when evaluating a child custody case. Family law attorneys who have tried child custody cases in court can use that experience in future cases. Even though each case is different and has its own set of unique characteristics, knowing the tendencies of custody conciliators and judges can be extremely valuable when negotiating an out of court settlement.

Since its inception over 20 years ago, The Martin Law Firm, P.C., located in Blue Bell, Pennsylvania, has represented mothers and fathers in child custody cases. Call us today at 215-646-3980 to discuss your case with a family law attorney.

The post Analyzing Pennsylvania’s Child Custody Factors appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/examining-the-child-custody-factors-in-pennsylvania/

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jbmartinlaw1 · 4 years

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A Quick Understanding of Pennsylvania Child Custody Laws

MONTGOMERY COUNTY, PENNSYLVANIA CHILD CUSTODY LAWS

In 2011, the Pennsylvania legislature passed Act 112 of 2010. This legislation significantly changed the child custody law in Pennsylvania. Parents who find themselves in a fight for custody of a child should know the basics of the Pennsylvania child custody law and how the law is applied in Montgomery County, Pennsylvania.

PHYSICAL CUSTODY AND LEGAL CUSTODY

Child custody consists of physical custody and legal custody. Physical custody is the actual possession and control of a minor child. Generally, the court will determine whether a parent should have primary physical custody, partial physical custody, joint physical custody, or visitation. Primary physical custody means that one party gets to spend most of the custodial time with a minor child. Shared or joint physical custody generally means that both parents will share equally in the overnight periods of custody. Partial physical custody is the right of one parent to have possession of the child that may include overnights, but the other parent is exercising primary physical custody. Visitation refers to designated times and conditions under which the noncustodial parent sees the child apart from the custodial parent.

Legal custody is the right to make important decisions that affect the minor child. These decisions include medical care, education, dental care, and religious instruction.

Pennsylvania courts often grant shared legal custody to parents unless the circumstances prevent the parents from being able to cooperate with each other regarding these important decisions. Physical custody, on the other hand, is often subject to legal scrutiny and litigation.

DETERMINING PHYSICAL CUSTODY

All child custody cases are unique, and attention must be given to specific factors established in the child custody law when determining how a court will most likely determine physical custody. Generally, the paramount concern is the best interests of the child. Courts often face the difficult decision of rendering primary physical custody to one parent or ordering a shared physical custody arrangement. The “best interests of the child” standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child. Of course, this can be a subjective opinion and people can have different views on how this standard is to be applied. For example, should the courts consider that a parent seeking primary custody has a greater income and can give the child access to better schools and medical care? Should the courts consider religion, race and ancestry? Should the courts only look to maintain the intimacy and security that the child has with one parent that may have been a closer caregiver to the child at a young age? The Pennsylvania legislature established factors in the child custody law to help parents, conciliators and Judges evaluate a physical custody arrangement that is in the best interest of the child. The factors can be summarized as follows:

which parent is likely to encourage frequent contact between the child and the other parent;

any instances of abuse and any continued risk of harm to the child;

the parental duties performed by each parent on behalf of the child;

the need for stability in the child’s education, family life and community life;

the availability of extended family;

the child’s sibling relationships;

the preference of the child, based on the child’s maturity and judgment;

any attempts of a parent to turn the child against the other parent;

which parent is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs;

which parent is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child;

the proximity of the residences of the parents;

each party’s availability to care for the child;

the ability of the parents to cooperate with one another;

the history of drug or alcohol abuse of a parent;

the mental and physical condition of a parent; and

any other relevant factor.

Prior to the 2011 revisions to the child custody law, Courts historically granted primary physical custody of the child to the mother and partial custody or visitation to the father, unless the circumstances were obvious enough to require a different arrangement. Courts would rarely interrupt this pattern unless the mother was deemed unfit or when the parents proved that they could cooperate with one another in the parenting of the child.

After the custody law changed in 2011, Judges and conciliators made decisions with less bias and presumptions against the father. Courts began to apply the “best interest of the child” factors with an eye towards an equal involvement by both parents when practical.

CHILD CUSTODY PROCESS IN MONTGOMERY COUNTY, PA

Filing the Child Custody Complaint. In Montgomery County, Pennsylvania, a parent who wants to establish physical and legal custody must file a Custody Complaint. The Complaint must identify the parents, the child or children and the type of custody sought. The Complaint is filed with the Montgomery County Office of the Prothonotary and then served on the other parent.

Mediation Orientation. When a Custody Complaint is filed, the Prothonotary’s Office will assign a Mediator to the case. Mediation Orientation is generally mandatory. The parties must contact the Mediator within seven (7) days of filing the Complaint. The Mediation Orientation session must be conducted within twenty (20) days of the filing date. Attorneys for the parties are not permitted to attend and the Orientation is kept confidential. The Mediator must have a post-graduate degree in law or a mental health field such as psychiatry, psychology, counseling or family therapy. The Mediation Orientation lasts up to two (2) hours. The Mediator will report the parties’ attendance and compliance via the filing of a Certificate of Compliance. The cost for mediation must be equally divided between the parties. The objective of Mediation Orientation is to establish an environment of fairness, establish a positive discussion with the parents, and provide a reality for both parents for the future co-parenting of the child. The Mediator will try to help the parents resolve the custody matter, educate the parents as to the custody process, and screen for abuse. If the Mediator can help facilitate an agreement, then the parents can sign a Memorandum of Agreement/Understanding.

Educational Seminar. The Montgomery County, PA local rules of court require parents to attend an approved education seminar on the general responsibilities of separated and divorced parents. The seminar is taught by licensed mental health professionals who have experience working with children and families. The seminar objective is to educate parents on the needs of the children and help the parents focus on those needs.

Custody Conciliation Conference. When an agreement cannot be reached with the Mediator and the parents have completed the education seminar, the case will proceed to a Conciliation Conference. The parents will receive notice in the mail of the date of the Conciliation Conference. The conciliator is an attorney appointed by the Court to resolve the custody dispute. In 2019, custody conciliators were permitted to issue interim custody orders for cases that do not have an existing order. This was a significant change because children and parents can now receive immediate certainty about a child custody schedule. The parents also have the benefit of receiving insight into the conciliator’s thoughts and analysis of the situation that led to the interim order. With this increased role and function of the custody conciliator, it is now more important than ever for parents to be represented by an attorney at this stage. If the case is resolved at the Conciliation Conference, an Agreed Order will be submitted to the Court for the Judge to sign.

Short List Hearing. If the case is still not resolved after the Custody Conciliation, then the parents will receive a notice of the scheduling of a short list hearing before a Judge. Judges will emphasize the need for parties and their attorneys to attend an in-person hearing to discuss settlement and to narrow the issues for trial. Attorneys should be prepared to identify witnesses who will be called for trial, whether there is a need for a home study or other expert intervention, and other unique matters. After discussion and careful consideration of the matters before the Court, the Judge will schedule a protracted custody hearing.

Custody Hearing. When a case goes to a child custody hearing, the case will take place in a courtroom and the Judge will serve as the trier of fact. Ultimately, the Judge will hear testimony and consider evidence to render a decision based on application of the evidence to each of the child custody factors. Experienced child custody lawyers will prepare and present a case on the parent’s behalf. Testimony from the child’s parents, other witnesses, family members, experts (counselors, therapists, behavioral specialists, etc.) and possibly the child, will almost certainly be presented in any custody trial. Documentation can also be key evidence. Experienced child custody lawyers will know the questions to ask on direct examination and how to effectively cross examine the other parent and other witnesses.

CHILD CUSTODY AGREEMENTS

Disputes for child custody can be resolved at any stage of the process by agreement. In addition to the factors for determining custody as described above, there are practical considerations for determining custody. These practical considerations include each parent’s work schedule, whether the children are in school, where the parents live in relation to each other, and so on. Regardless if a parent has primary, joint, or partial physical custody, both parents should agree on a schedule of each of the parent’s custodial time. The schedule will specify the days of the week and the times that the parents have custodial time, including overnights.

While most child custody agreements revolve around the day-to-day schedule of the children, it is important to have a separate schedule for holidays, vacations, and special events. While parents typically agree to alternate annual holiday schedules every year, each family is different, and parents can structure their holiday schedules as they see fit. Similarly, these agreements should state whether parents will be allowed to take children on extended vacations, and if so, for how many days each year and whether it must be done during their scheduled custody time.

By having a written physical custody agreement, parents can establish physical custody rights which they can rely upon and which they can enforce in Court, if necessary. An established custody schedule will also add stability to the child’s development and his or her relationship with both parents. If a modification of the written agreement is needed or wanted, then the parents can re-negotiate a modification to the written agreement. Or, if the parents are amicable, they can modify the agreement as necessary as situations arise without necessarily having to modify the written agreement.

HIRING A MONTGOMERY COUNTY, PA CHILD CUSTODY LAWYER

A parent involved in a child custody dispute in Montgomery County, Pennsylvania should consider hiring a child custody lawyer who has experience with the Montgomery County< PA court system. A child custody lawyer can assist the parent with guidance and advice, drafting the Custody Complaint, preparing the case for trial, and presenting the witnesses and evidence to the Court on the parent’s behalf.

Fighting for custodial rights of a child is perhaps the most important situation that a parent will ever be involved in. Nothing can replace preparation and diligence, except being a good parent. Parents should always be encouraged to set their differences with the other parent when decisions are made concerning the child. A parent should never take their custody time for granted and should always make the most of it.

If you are involved in a child custody dispute, please call the Martin Law Firm today at 215-646-3980 and speak with a child custody lawyer.

The post A Quick Understanding of Pennsylvania Child Custody Laws appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/montgomery-country-pa-child-custody-laws/

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jbmartinlaw1 · 4 years

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Can a DUI Be Expunged In Pennsylvania?

Expungement is a legal process to remove an arrest or a criminal conviction from a person’s criminal history. If a person is granted an expungement, a court order will be entered, and all criminal justice agencies will remove the arrest and/or conviction from their records. Having a criminal record properly expunged removes the arrest/conviction from public records, court dockets, police records, etc. with the expectation that it will not show up if an employer, landlord or school performs a criminal background check during the hiring or application process.

ELIGIBILITY FOR DUI EXPUNGEMENT IN PENNSYLVANIA

Not all guilty pleas and convictions are eligible for expungement. In fact, Pennsylvania law limits expungement eligibility to limited situations. Under 18 Pa. C. S. § 9122, a criminal record history may be expunged if one of the following conditions are met:

You were charged with a first offense DUI and you successfully completed the ARD program;

you are over 70 years old and free of arrest/prosecution for 10 years since the prior release from supervision;

you have been deceased for 3 years; or

you petition the court for the expungement of a summary offense and you have been free of arrest or prosecution for 5 years following the conviction for the prior offense.

Call (215) 646-3980 To Talk To Our DUI Attorney

DUI EXPUNGEMENT LIMITATIONS

When an expungement is completed, the records are not erased entirely. There are a few, very limited scenarios in which criminal records may be used. The District Attorney’s office and the central repository may maintain a list of the names and other criminal history record information of persons whose records are required to be expunged. However, this information is not available to the general public and it is only to be used for the purposes of determining subsequent eligibility for an ARD program, identifying individuals in subsequent criminal investigations or determining the grading of subsequent offenses. Otherwise, your expunged criminal history will not be available.

PA DUI EXPUNGEMENT PROCESS

Anyone who meets the expungement eligibility requirements should hire an expungement attorney for help in the expungement process. The attorney will prepare a Petition, Joinder, and Order that must be approved by the District Attorney’s office and the Judge. Once approved by the Judge, the Judge will sign the Expungement Order. The signed Order is served on the governmental agencies that have records of the arrest and/or conviction and the Order requires those agencies to erase the records. An expungement attorney can make sure that the Petition and Order comply with Pennsylvania law, the signed Order is served on all the agencies, and the agencies respond with written confirmation that the records are expunged. The process for expungement usually takes a few months.

Call (215) 646-3980 To Talk To Our DUI Attorney

THE MARTIN LAW FIRM, P.C. – DUI EXPUNGEMENT ATTORNEYS

The expungement process is not a difficult process. Having a clean record can greatly impact future opportunities. The attorneys at The Martin Law Firm, P.C. routinely help individuals looking for a job, entering a trade, or pursuing higher education with expungements. If you are looking to have your criminal records expunged, contact us today for a free case evaluation at 215-646-3980.

The post Can a DUI Be Expunged In Pennsylvania? appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/dui-expungement-pennsylvania/

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jbmartinlaw1 · 4 years

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All You Need To Know About DUI In Pennsylvania

PENNSYLVANIA DUI LAW

In Pennsylvania, an individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. The law also prohibits anyone from driving, operating or being in actual physical control of the movement of a vehicle if the alcohol concentration of the individual’s blood or breath is at least 0.10% (unless it is a minor in which case the alcohol concentration is at least 0.02%).

DUI ARRESTS IN PENNSYLVANIA

While every DUI case has its own unique issues and set of facts, a typical DUI case begins with a person being pulled over by the police. The police officer will ask for the driver’s license, registration, and proof of insurance while carefully monitoring the driver’s mannerisms and behavior. The driver may be asked to submit to field sobriety tests. If the officer has probable cause, the officer will place the driver under arrest for DUI. The driver is taken into custody, processed, fingerprinted, asked to submit to an official blood alcohol content (BAC) test, and released a few hours later or the next morning.

Call (215) 646-3980 To Talk To Our DUI Attorney

WARRANTLESS DUI ARRESTS

An arrest for DUI is typically a “warrantless” arrest, meaning that the police are not required to obtain a warrant prior to detaining you. All that is needed is “probable cause”, which is a logical inference, supported by facts and circumstances, that a crime has been, or is being, committed. In DUI cases, this is typically established through subjective findings (e.g. your behavior), the smell of alcohol, incoherent or slurred speech, blood-shot eyes, field sobriety tests and preliminary breath tests (PBT).

ACTUAL PHYSICAL CONTROL

One key element to any DUI arrest is that an individual must be in “actual physical control of the movement of a vehicle”. There are many pivotal Pennsylvania DUI cases which discuss this element. Generally, one must look to the “totality of the circumstances” when determining whether an individual is in actual physical control of the movement of vehicle. Circumstances to be considered include the location of the vehicle, where the individual was located with respect to the vehicle, whether the engine was running, whether the keys were in the ignition, and any other evidence that indicates that an individual was driving the vehicle immediately prior to the police arriving. For example, a strong argument can be made that an individual who was observed sitting in the driver’s seat of a car, with the keys in hand, and then getting out to open the trunk, is not in “actual physical control of the movement of the vehicle” if it can be shown that the car was parked, had a flat tire and a broken rim, the engine was not running, and the headlights were off. This argument may be weaker if the circumstances show that an individual was in the driver’s seat, parked in an alley after pulling over with the engine running.

LAWFUL POLICE STOP IN PENNSYLVANIA

There are three situations that allow the police to make a valid vehicle stop for DUI in Pennsylvania. If the stop is unlawful, then the evidence obtained by the police following the vehicle stop will likely be suppressed by the Judge before trial, meaning the evidence will not be admitted against the accused.

DUI Checkpoint. DUI checkpoints are stationary roadblocks conducted by the police. A checkpoint allows the police to make a stop for the purpose of investigating whether a person is driving under the influence of alcohol or drugs. In 1990, the U.S. Supreme Court held that a stop resulting from a DUI checkpoint does not violate the protections against illegal searches and seizures under the U.S. Constitution. The Court determined that checkpoints are justified based on the public interest in reducing DUI incidents. Pennsylvania allows the use of checkpoints so long as certain conditions are met. To determine whether a checkpoint is lawful, there are some factors to consider:

the determination of which vehicles to stop cannot be based on the personal discretion of the police officer (e.g. the stops must be uniform such as every third car)

the stop must be sufficiently brief

the location of the checkpoint must be based on appropriate evidence and statistics and must be publicly announced prior to being set up (online notice is enough)

the DUI checkpoint must be well-marked and stationary.

If a DUI checkpoint is determined to be unlawful, the evidence obtained during and after the stop can be suppressed.

Reasonable Suspicion. Pennsylvania law permits the police to make a valid stop when there is a “reasonable suspicion” that a driver is under the influence of alcohol or drugs. A “reasonable suspicion” is when a police officer, through his or her training and experience, uses facts and circumstances to determine that the behavior justifies a stop. In other words, a reasonable suspicion requires more than just a hunch. For example, erratically operating a motor vehicle in a dangerous fashion or an illegal U-turn may be enough to justify a stop. Circumstances such as loud music, the style of the car, or the driver’s physical appearance are circumstances that would likely not result in a lawful stop. There is also a distinction between a “mere encounter” and a stop that requires a reasonable suspicion. If an individual is already stopped on the side of the road, and a police officer pulls over to see if the individual needs assistance, then the officer does not need to have reasonable suspicion to approach the individual.

Vehicle Code Violation. Police may also stop a vehicle for specific violations of the Pennsylvania Motor Vehicle Code such as speeding, running a red light, or driving the wrong direction on a one-way street, as well as violations unrelated to the driver’s ability to drive, such as crooked headlights, expired registration tags, or a broken taillight.

Call (215) 646-3980 To Talk To Our DUI Attorney

PROBABLE CAUSE AND THE DUI ARREST

After the police make a vehicle stop, an arrest can only occur if the police have probable cause. Establishing probable cause to make a DUI arrest requires a higher standard of proof compared to the reasonable suspicion standard. Police must have probable cause to make an arrest and to conduct a search of a person or a person’s property incident to that arrest. In the DUI context, probable cause can exist if the driver’s mannerisms are consistent with intoxication, the smell of alcohol exists on the person or in the vehicle, the driver has slurred speech and other subjective findings. In addition to subjective findings, the officer can use other circumstances to justify probable cause including open containers in the vehicle; an admission by the driver that he or she was drinking alcohol; or field sobriety tests such as the Horizontal Gaze Nystagmus Test, the Walk-and-Turn Test, and the One-Leg Stand Test. The officer may also ask the driver to take a preliminary breath test, that although not admissible in court, can provide the officer with an indication of the presence of alcohol in a person.

WHEN DOES A DUI ARREST OCCUR?

When the officer believes he or she has probable cause that the driver is under the influence of alcohol or drugs, the officer will make the arrest. An arrest is defined as “any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest.” Essentially, an arrest occurs when a “reasonable person” would believe that he or she was not free to leave under the circumstances.

WHAT HAPPENS AFTER THE DUI ARREST?

Most Montgomery County, PA DUI offenses result in warrantless arrests and release from custody without preliminary arraignment. Soon after the arrest, a criminal complaint, summons and affidavit of probable cause are filed and served on the defendant. The summons is a directive to appear at a preliminary hearing, which is to be held not less than 20 days from the mail date of the summons unless other arrangements have been made. The summons will notify the defendant of the date, time, and place of the preliminary hearing.

A preliminary hearing is not a trial. The purpose of the preliminary hearing is to protect an individual’s right against unlawful arrest and detention. Preliminary hearings for Montgomery County, PA DUI cases take place in the appropriate Magisterial District Court. At the preliminary hearing, the Commonwealth bears the burden of establishing a prima facia case that a crime has been committed and that the accused is probably the one who committed it. If the prosecution fails to prove a prima facie case, the defendant will be discharged. If the prosecution successfully meets its burden, the case will be transferred to the Montgomery County Court of Common Pleas and scheduled for trial.

After the preliminary hearing, a formal arraignment is scheduled. The defendant often waives the arraignment at the advice of counsel. After the arraignment, DUI lawyers will make a discovery request to the district attorney’s office. Upon receipt of the discovery, the DUI lawyer and client will discuss an appropriate resolution. Resolution of a DUI case may include ARD, plea, or trial.

Call (215) 646-3980 To Talk To Our DUI Attorney

When a case proceeds to trial, evidence is presented, including scientific tests, blood tests, and witness testimony. After the evidence is presented, the court will determine guilt or innocence. The Pennsylvania Rules of Criminal Procedure requires that trial for an offender who is incarcerated commence within 180 days from the filing of the criminal complaint. If the offender is not incarcerated, the Rules require that trial commence within 365 days from the filing of the criminal complaint.

PENNSYLVANIA DUI DEFENSES – GENERALLY

There are many issues and circumstances an experienced DUI lawyer will analyze in preparing a DUI defense for the client. Generally, the DUI lawyer will consider the following questions to determine how to best prepare a person’s case:

Was there a valid vehicle stop?

Was the accused in actual physical control of the vehicle?

Did the officer have probable cause to make the arrest?

Were the breath or chemical tests properly administered?

Were the breath or chemical testing equipment properly calibrated, tested, etc.?

DUI – REFUSAL TO SUBMIT TO CHEMICAL TESTING IN PA

All Pennsylvania licensed drivers are subject to the Implied Consent Law. The Implied Consent Law applies when a person receives a Pennsylvania drivers’ license. Receipt of a driver’s license establishes an agreement that any PA driver must submit to BAC testing if asked by law enforcement. If a person refuses to take a breath, blood or urine test, then the Pennsylvania Department of Transportation (PennDOT) will automatically suspend the driver’s operating privileges for one (1) year. This suspension is in addition to a suspension that may be imposed for a conviction or Accelerated Rehabilitative Disposition (ARD) caused by a DUI. Violation of the Implied Consent Law is an administrative issue, separate and apart from the DUI case, which is a criminal issue. As such, the outcome of a DUI case, even if a person is adjudged not guilty, will not impact PennDOT’s decision to suspend a license for violation of the Implied Consent Law.

ACCELERATED REHABILITATIVE DISPOSITION

The Accelerated Rehabilitative Disposition (ARD) Program is a special pretrial intervention program in Pennsylvania for nonviolent offenders including those persons who are charged with a first offense DUI. This is a unique program for individuals who have no prior criminal convictions or prior ARD dispositions within ten years prior to the arrest. The purpose of the ARD program is for the prompt disposition of charges without the need for court proceedings. If the applicant to the ARD program successfully completes the requirements established by the court, the judge in the case can, upon petition, expunge the record of the offense. Generally, the ARD program involves the following:

Attend Montgomery County Alcohol Highway Safety School (AHSS)

Drug and alcohol evaluation with the Court Reporting Network (CRN)

Probation supervised by the Montgomery County Probation Department

Reduced driver’s license suspension

Community Service

Payment of fines and costs

Call (215) 646-3980 To Talk To Our DUI Attorney

MONTGOMERY COUNTY, PA DRUG TREATMENT COURT

In Pennsylvania, another potential alternative for resolution of a DUI charge and to avoid conviction is the Montgomery County Drug Treatment Court. The Drug Treatment Court’s mission is to provide intensive treatment and education for individuals who may be suffering from drug and alcohol addiction. This option can result in reduced or no jail time and serves as a rehabilitative path towards recovery as an alternative to serious punishment.

PENNYSLVANIA DUI LAWYER – THE MARTIN LAW FIRM

The Martin Law Firm, P.C. is a DUI defense law firm located in Blue Bell, PA. We represent first time and multiple DUI offenders. Our goal is to analyze your case and advise you on a strategy that will result in the best possible outcome for you. All cases are different and that is why we strive to give your case the attention it needs. Please call us today for a free case evaluation at 215-646-3980.

The post All You Need To Know About DUI In Pennsylvania appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/dui-in-pennsylvania/

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jbmartinlaw1 · 4 years

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Pennsylvania Commercial Debt Collection Laws Explained

Companies and businesses with non-paying customers should take pro-active steps to compel payment. Reducing accounts receivables and eliminating payment defaults increases a company’s cash flow and overall financial health. Companies should hire a debt collection lawyer to assist with debt collections. Debt collection lawyers can advise companies on Pennsylvania commercial debt collection laws and implement a successful debt collection strategy.

PENNSYLVANIA COMMERCIAL DEBT COLLECTION LAWS

Pennsylvania commercial debt collection laws serve as the basis for court action. Breach of contract is the primary debt collection law that is alleged in most lawsuits against non-paying customers. Unjust enrichment is another cause of action that should be considered. The cause of action of unjust enrichment arises where one party has conferred a benefit on another party, the other party appreciated and accepted the benefit under the circumstances and retained the benefit without payment for value. Unjust enrichment is usually alleged when there is no contract between the parties.

There are other commercial debt collection laws that may apply depending on the industry. For example, The Pennsylvania Contractor and Subcontractor Payment Act is intended to give contractors and subcontractors in Pennsylvania additional remedies against individuals or companies who fail to pay for services rendered. The Pennsylvania Mechanic’s Lien Law is another Pennsylvania law that allows contractors or subcontractors to place a pre-judgment lien on real property for the value of services and costs related to improvements to the property.

Call (215) 646-3980 To Talk To A PA Debt Collection Attorney

PENNSYLVANIA STATUTE OF LIMITATIONS

In a Pennsylvania breach of contract action, the statute of limitations generally requires that a court action be commenced no later than four (4) years from the date of the alleged breach. Causes of action for unjust enrichment have the same four (4) year limitation period. Other causes of action, such as the Pennsylvania Mechanic’s Lien Law, have other restrictive time constraints, so a consultation with a debt collection lawyer early in the process is advised. In any event, businesses should consider legal action well before the end of a limitation period. Accounts that are 60 to 90 days past due should be given immediate legal attention.

PENNSYLVANIA BREACH OF CONTRACT ACTIONS

In Pennsylvania, when one party violates the terms of a contract, the other party can sue to enforce the contract. To prove a claim for breach of contract, the aggrieved party must 1) prove the existence of a valid, enforceable contract, 2) the other party breached a duty imposed by the contract, 3) the aggrieved party performed its duties under the contract, and 4) the aggrieved party suffered damages as a result of the other party’s breach. The purpose of a claim for damages for breach of contract is to put the aggrieved party in the position it would have been in but for the breach. In other words, damages can be awarded to compensate the plaintiff for loss suffered due to the breach.

For a contract to be valid and enforceable, there must be consideration. Consideration (quid pro quo) in the legal context means both sides must confer a legal right and obtain a benefit which the parties actually desire. If there is no consideration, then the agreement is not a valid and enforceable contract.

Generally, a contract can be oral or written. Some contracts are required to be in writing in order to be enforceable. For example, purchases of real estate must be in writing and a contract for the price of $500 or more for the sale of goods must also be in writing (there are certain exceptions to this rule as set forth in Title 13 of the Pennsylvania statutes).

OTHER COMMERCIAL DEBT COLLECTION LAWS

Attorney’s Fees and Costs. Pennsylvania law does not automatically allow for the recovery of attorney’s fees and court costs for a breach of contract or unjust enrichment claim. In other words, each party involved in litigation must pay its own attorney’s fees. This is known as the “American Rule”. There are exceptions to the American Rule. A contract can expressly specify that a party who breaches the contract must pay the other party’s attorney’s fees and costs if the party must sue to enforce the contract. For this reason, companies should use a comprehensive, written contract in its course of dealings with its customers that includes this language in order to recoup the expenses related to a debt collection activity.

Venue and Jurisdiction. State and Federal laws could impact where a lawsuit must be filed. If both parties to a contract are located in Pennsylvania, the decision is easy – the lawsuit is usually initiated in the county where the debtor is located. However, if the debtor is located outside of Pennsylvania, then the decision where to bring a civil action may be more difficult. In some instances, laws may force the company to initiate a lawsuit in the debtor’s home state. The company trying to collect the debt could be at a disadvantage in terms of costs, travel, judgment enforcement, etc. To avoid this dilemma, businesses should consider a forum selection clause in its contracts. A forum selection clause is an enforceable contract provision that governs venue and jurisdiction for future legal disputes. Simply put, a forum selection clause specifies the location in which a dispute will be resolved. If a company located in Philadelphia, PA contracts with a business in Texas who defaults on payment obligation, a forum selection clause in the contract might clearly provide that a lawsuit must be initiated in Philadelphia, PA which is the company’s home state.

Call (215) 646-3980 To Talk To A PA Debt Collection Attorney

PENNSYLVANIA MONEY JUDGMENT LAWS

Judgment Lien. In Pennsylvania, a judgment lien can be attached to the debtor’s real estate (house, land or condo). The lien is attached when the judgment is recorded within the Pennsylvania county court where the debtor owns the real estate. The judgment lien will remain on the property for five (5) years, but it can be extended with the filing of a Writ of Revival. Judgements can be transferred to another county or a judgment can be transferred from another state.

Writ of Execution. To satisfy a judgment, debt collection attorneys can file and serve a Writ of Execution. A Writ of Execution authorizes the sheriff’s office to take certain action to collect assets of the debtor to satisfy the judgment. These assets may include funds in the debtor’s bank accounts, real estate, and other tangible personal property.

Judgment Execution. Unless a debt is discharged by a bankruptcy court, execution upon a judgment may be issued against personal property with twenty (20) years of the entry of the judgment.

PENNSYLVANIA COLLECTION ATTORNEYS – THE MARTIN LAW FIRM, P.C.

Since 2001, The Martin Law Firm, P.C. has successfully obtained and enforced money judgments throughout the Commonwealth of Pennsylvania. We represent a large array of businesses for the collection of commercial debts. We handle matters on an hourly basis or contingency fee basis, depending on the situation. Call us today at 215-646-3980 to discuss your debt collection matter.

The post Pennsylvania Commercial Debt Collection Laws Explained appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/commercial-debt-collection-laws-pennsylvania/

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jbmartinlaw1 · 4 years

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What is Considered Marital Property in PA Divorce Laws?

In preparing for a divorce, one of the most significant financial – and often emotional – issues you will need to address is what happens to the marital property, and specifically which spouse will walk away with what property. Where possible, divorcing spouses should work with their attorneys to negotiate their own division of marital property in PA in order to find a mutually beneficial division, but they should do in light of the applicable divorce laws which dictate how a judge will divide marital property. By knowing how a judge will divide your marital property should you be unable to reach an agreement, you can negotiate a fair division or at least know what to expect should the decision be left to the judge.

Pennsylvania Equitable Division V. Common Law

Pennsylvania is not a 50/50 common law state. PA law requires divorcing couples to equitably divide the marital property. This means that the division of marital property should be based on fairness utilizing a set of enumerated factors in the PA Divorce Code. Where possible, divorcing spouses should work with their attorneys to negotiate their own agreement as to the division of marital property. To do this, divorce lawyers must counsel the client on the Pennsylvania marital property laws and how Judges will most likely apply the laws to a specific case. By knowing how a Judge will likely divide your marital property, you can negotiate a fair division or at least know what to expect should the decision be left to the Judge.

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What Is Considered Marital Property in PA and How It Differs From Nonmarital Property

In Pennsylvania, there is a distinction between marital property and nonmarital property. Marital property generally includes the property that either spouse earns during the marriage or acquires with funds earned during the marriage. Basically, if a piece of property – whether cash, savings, personal property, vehicles, real estate, or even a family business – owes its value to labor exerted by either party during the marriage, it is marital property subject to division. This is true regardless of who “earned” it or whose name is on the title.

In Pennsylvania, there is a distinction between marital property and nonmarital property and this is important because only marital property is subject to equitable division. Marital property generally includes the property that either spouse acquires during the marriage or acquires with funds earned during the marriage.

Marital property also includes the increase in value of non-marital property up to the date of separation. So, let’s say one spouse has a retirement account with a value of $100,000.00 on the day of the marriage. This is non-marital property since the value of the retirement account was acquired prior to the marriage. If the value of that account increases to $150,000.00 upon the parties’ separation, only $50,000.00 is considered marital property and subject to equitable division instead of the entire value of $150,000.00.

However, if one spouse starts a new job during the marriage and the retirement account goes from $0 to $150,000.00 at the time of separation, then upon the parties’ separation, the entire $150,000.00 is considered marital property since the entire portion was earned or acquired during the marriage. Property can include all real and personal property such as cash, personal property, vehicles, real estate, retirement accounts, or even a family business.

What is The Equitable Division Process in Pennsylvania

Nonmarital property goes with whatever spouse already owned the property after the divorce, while marital property will be subject to equitable distribution between the spouses. Unlike in some other states, equitable distribution in Pennsylvania does not necessarily mean a 50/50 split between the spouses, but rather that the court will distribute the property between the spouses as it deems fair.

In making this equitable distribution, courts in Pennsylvania do not consider so-called marital misconduct issues such as adultery, but courts will rely on a number of factors related to the contributions made by each spouse during the marriage and their financial circumstances. Such factors include:

The standard of living established during the marriage

The age, health, employ-ability, and job skills of each spouse

The economic circumstances of each spouse at the time of division

The sources of income available to each spouse, including wages, insurance, and retirement benefits

The contribution of each spouse to the education or increased earning power of the other spouse

The contributions of each spouse to the marriage, which can include earnings and homemaking contributions

Your divorce attorney will guide you through the equitable division process in Pennsylvania. The goal is to negotiate an amicable resolution of the issue with the other spouse. In order to make this happen, you and your attorney will have to assemble a list of all the assets and debts, how they were acquired, how they were titled at acquisition, how they are currently titled, their value at acquisition, and their current values. Attorneys can provide clients with a Form of Inventory and a Checklist of Marital Property. If necessary, the attorney can also obtain signed Authorizations for Release of Documents from you. These Authorizations will enable the attorney to seek information directly from the source, e.g. banks and financial institutions. And finally, your attorney can make a request from your spouse or your spouse’s attorney to produce documents.

Call (215) 646-3980 For a FREE Case Evaluation

If an agreement cannot be reached on the issue of equitable division of the marital property, then Pennsylvania law and local county rules require a series of formal steps to conclude the matter. Many counties require the matter to first proceed to a court appointed master who will issue informal and if necessary, formal recommendations. If the parties are unable to agree even after the master’s recommendations, the matter will proceed to a Judge who will hold a formal hearing with evidence and witness testimony.

How Do You Value Marital Property?

After a determination is made regarding the identification of marital v. non-marital property, it is necessary to value the marital property. Some property, like bank accounts and stocks can be easily valued simply by looking at the statements issued by the institutions for the relevant date. Real estate is valued using websites such as Zillow or through certified real estate appraisers. Small businesses can be valued by accountants or business valuation experts. When appraisers and other experts disagree on the value of a certain asset, this can sometimes lead to a dispute that must be resolved by a court appointed master or Judge.

Is Pennsylvania a Community Property State For Debt During Divorce?

As mentioned earlier, Pennsylvania is NOT a 50/50 common law state. Pennsylvania law requires divorcing couples to equitably divide the marital property and marital property also includes debts incurred by either spouse after the date of marriage and before the date of separation. Typically, marital debt includes mortgage loans, personal and business loans, credit card accounts, and tax obligations. Even if your spouse was the one who racked up a large amount of credit card debt during the marriage, the debt may still be considered marital debt. While this may not seem fair, it is the reality of how property is equitably divided during a divorce in Pennsylvania.

While rare, some creditors may allow the transfer of a debt from both spouses to one spouse. Creditors generally do not want to lower the number of potential debtors because creditors want to hold both spouses accountable in the event of a default. For mortgage loans, one option is for a spouse to refinance the mortgage. This allows for the removal of a spouse on the “old” loan and removes that spouse’s legal obligation to repay the loan. The spouse who refinanced the loan is solely responsible for the “new” loan. Even if a debt cannot be transferred to the name of one spouse, the debt is still part of the equitable distribution process. When marital debt is equitably divided by the Court, you and your spouse will be instructed to pay a certain portion of any debts and it is assumed that you both will do so. As with any other asset subject to the equitable division law, a Judge will look at the amount of the debt, how and when it was incurred, and applies a number of factors in determining each spouse’s financial responsibility.

Pennsylvania courts are frequently deciding divorce cases that involve substantial debts, whether it be mortgages on real estate or credit card debts incurred during the marriage. Because equitable distribution is somewhat of a subjective standard, every court decision is important for divorce attorneys. These decisions give attorneys insight into how courts are looking at debt and provide the attorneys with a level of confidence when making legal arguments or in settlement negotiations.

Credit Card Debt

As an example of how a Judge may equitably divide marital debt, suppose a married couple incurred $14,500.00 in credit card debt. The husband may try to argue that the majority of that debt was incurred by the wife; however, if the wife can show that the debt was used primarily for everyday items that were used by both spouses, the court will likely equitably divide the debt. While the Court may deem the debt as marital debt, it need not be divided equally between the parties. Typically, masters and courts will assume that any debt incurred during the marriage and prior to separation is marital debt, unless it can be shown otherwise.

Pennsylvania Property Distribution Percentages During Divorce

Even though Pennsylvania law does not mandate a 50/50 division of marital property, in practice, a 50/50 division is quite common. If the divorcing spouses have similar incomes from their jobs and the marital assets include a home and modest retirement accounts, the courts will often order a 50/50 division. For these cases, divorce attorneys are usually able to facilitate expedited divorce settlements since a resolution of the division of marital property is fairly straightforward.

In many other cases, however, the distribution percentages are not so easy to assume. For example, (1) if one spouse has a substantially higher earning capacity then the other spouse, (2) one spouse has significant student loans, and (3) one spouse has significant non-marital property; the opinions as to the determination of distribution percentages can vary. For these cases, divorce lawyers will rely on their prior experiences in similar cases to counsel the client on what is and what is not “equitable”.

Other Complex Matters

Some unique equitable division matters that we have handled at The Martin Law Firm include the following:

Season tickets to sporting events

Social Security Benefits

Personal Injury Settlements

Payments of Joint Liabilities

Partnership Interests

Mineral Rights

Military Benefits

Inheritances

Stock Options

Pensions

Will Contest Proceeds

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Alimony & Equitable Division

Courts may award alimony after a divorce decree has been entered. The court will allow alimony, in a reasonable amount and duration, to either party if alimony is necessary. The court will use a set of factors for considering the appropriateness of alimony. Generally, the purpose of alimony is to ensure a spouse’s reasonable needs are met. Alimony is often viewed as a secondary remedy. Courts will first determine whether economic fairness can be achieved through an equitable distribution award.

Disposition of Property After Termination of Marriage

After a decree of divorce is entered by the court, the parties whose marriage is terminated have complete freedom of disposition as to their separate real and personal property. For this reason, a court will not issue the decree in divorce until after marital property division and distribution is complete. When the equitable division of marital property is unresolved, the court will often enter an order confirming the grounds for divorce, but will defer issuing the divorce decree until property matters are resolved.

The Martin Law Firm, P.C. – Equitable Division Guidance & Solutions

The Martin Law Firm is a family law firm located in Blue Bell, Pennsylvania that serves men and women in divorce and equitable division matters in Montgomery County, PA and in the surrounding counties. We are committed to serving your needs in a compassionate and efficient manner. Call us today for a free case evaluation at 215-646-3980.

The post What is Considered Marital Property in PA Divorce Laws? appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/marital-property-divided-pennsylvania/

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jbmartinlaw1 · 4 years

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How Do Separated PA Couples File Taxes While Awaiting Divorce?

Filing taxes while separated in PA is an often overlooked matter. People getting divorced are focused on the divorce process, their children, and what life will be like after the divorce. As a Pennsylvania divorce attorney, I have concluded that divorcing couples overlook the importance of tax considerations. Taxes are almost an afterthought.

However, there are some basic concepts that divorcing couples should know that could help them save money. It is always advisable to consult with your accountant since tax laws are complex and they often change.

Your Tax Filing Status (IRS Publication 504)

Your filing status is used to determine if you must file a tax return, the standard deduction, and the amount of tax you are required to pay. The filing status also impacts claims to other deductions and credits. When determining a filing status, you must first look at your marital status on the last day of your tax year. You are considered “unmarried” for the whole year if you have obtained a divorce decree by the last day of your tax year or:

You file a separate return,

You paid more than half of the cost of keeping up your home for the tax year,

Your spouse did not live in the home during the last 6 months of the tax year,

Your home was the main home for your child, stepchild, or foster child for at least 6 months of the tax year, and

You must be able to claim the child as a dependent.

The foregoing does not include living in separate homes due to military service, medical treatment, attendance at college or university, and other similar temporary circumstances.

Conversely, you are considered “married” for the whole year even if you are separated, but you have not obtained a divorce decree by the last day of your tax year.

call (215) 646-3980 to schedule a divorce consultation

You Cannot File as a Single Taxpayer While Separated in PA

After a separation, it can certainly feel like you are single and no longer married, especially when you and your spouse are living apart (and perhaps with new partners) and no longer sharing expenses. But in the eyes of the federal government, you are still married until the day a Pennsylvania Court judge makes your divorce final.

Thus, you cannot file as a single taxpayer while separated in PA, even if your divorce is pending. Your only options are “married filing jointly” and “married filing separately.”

Married Filing Jointly

A married couple has the option of filing a joint return. When you file a joint return, you and your spouse’s income is included in the return. You and your spouse sign the return and you are both liable (jointly and individually) for any tax, interest or penalties. This means that after divorce, you and your spouse continue to be liable for tax, interest or penalties due on a joint return for a tax year ending before your divorce. After the due date of your tax return, you and your spouse cannot file separate returns if you previously filed a joint return.

Married Filing Separated

A married couple also has the option of filing separate tax returns. Each spouse will report his or her income and deductions on a separate tax return. In this case, each spouse is solely liable for any tax, interest or penalties on his or her separate tax return. Filing separate tax returns is usually not advised, since you will often pay a combined higher tax. The IRS permits married couples who filed separately to change their filing status and refile with a joint return so long as certain conditions are met.

Single

If you are unmarried or considered unmarried, you must file an individual return, unless you qualify as filing as head of household or qualifying widower.

Single – Head of Household

Head of household is a filing status for unmarried taxpayers who keep up a home for a “Qualifying Person”. Qualifying Persons are typically relatives who must meet special requirements set forth by the IRS. There are unique advantages for filing as head of household:

You can claim the standard deduction even when your spouse files separately and itemize his or her deductions.

Your standard deduction is higher than when you file as single or married filing separately.

You may be able to claim certain credits (e.g. dependent care credit).

Income limits that reduce the child tax credit or retirement savings are higher than the income limits if you claim a filing status of married filing separately.

In order to file as head of household you must be:

Unmarried or “considered unmarried” on the last day of the year,

You paid more than half the cost of keeping up a home for the year, and

A “qualifying person” lived with you in the home for more than half the year, unless he or she is your dependent parent, in which case, the parent does not have to live with you.

call (215) 646-3980 to schedule a divorce consultation

You May Need To Work With Your Separated Spouse To File Taxes

The intricacies of the federal tax code are far beyond the scope of this article, but, for many couples, there are usually disadvantages when filing as “married filing separately” tax returns v. a “married filing jointly” tax return (although there are many cases in which this is not true as well). To give an example, one spouse might file a “married filing separately” return and get a $1,000 tax refund, while the other spouse would file a “married filing separately” return and end up paying $15,000 with the return. Together this is an additional $14,000 payment that would have to be made with the taxes. That same couple, however, had they filed together in a “married filing jointly” return might owe an additional $9,000 in taxes. That’s $5,000 less than they would have had to pay collectively with “married filing separately” returns.

These are just hypothetical numbers, but the point is that you and your separated spouse – even if you cannot agree on anything else – may be able to benefit one another by reaching an agreement, either in conjunction with a settlement agreement to work together on your taxes.

The Martin Law Firm is always looking at ways to help their clients save money and preserve their assets during and after divorce. Your taxes should never be an afterthought during your divorce. Never underestimate the importance of having qualified and experienced professionals (accountants and attorneys) assist you with your divorce. The Martin Law Firm, P.C. office is in Blue Bell, Pennsylvania.

The post How Do Separated PA Couples File Taxes While Awaiting Divorce? appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/separated-in-pa-taxes/

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jbmartinlaw1 · 4 years

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Can I File For Legal Separation in Pennsylvania?

Many married couples realize that they cannot continue living together so they decide to get a divorce. Divorce is unfortunately all too common these days. Some people realize that they want to live separate and apart from their spouse, but they do not want to proceed with a divorce. These people believe that they can get a legal separation through the court; however, in Pennsylvania this is simply not true.

The term “divorce” means a divorce from the bonds of matrimony. Simply put, a divorce is a legal end to the marriage when the Court issues a decree in divorce. On the other hand, a married couple can choose to live “separate and apart”. This means that there is an end to cohabitation, but the couple continues to be married to one another.

There is no legal “separation” in Pennsylvania, i.e. there is no formal process or court order required to be considered “separated” in Pennsylvania.

call (215) 646-3980 to schedule a divorce consultation

What is a Legal Separation?

Many states allow for a “legal separation.” This is a process, similar to divorce, but the parties remain married but separated. A legal separation does not end a marriage. Instead, the husband and wife live separate lives, but there is a court order in place that defines issues such as the division of debt or marital assets, child custody and visitation schedules, child support, spousal support, and other responsibilities of the parties. However, Pennsylvania is not one of these states.

What is a Divorce?

A divorce is the end to a marriage. The Court will enter a court order divorcing the husband and wife. During the divorce process, the parties also will obtain a court order that defines the same issues that the court ordered separation will govern, i.e. division of debts or assets, child custody and support. Pennsylvania does allow for divorce including fault and no-fault divorces.

What is the Difference Between a Legal Separation and Divorce?

There is only one major difference, when parties are legally separated they are still married but in a divorce, the husband and wife cease to be married.

What Does It Mean To Live Separate and Apart?

Under Section 3103 of the Pennsylvania Divorce Code, the term “separate and apart” means a cessation of cohabitation, whether living in the same residence or not. While it seems counter-intuitive that a married couple can live separate and apart in the same home, it is quite common. Often, one spouse is unable to get the courage to leave the home or to force the other spouse out of the home. Or, it may be financially difficult for each spouse to maintain separate households. Nevertheless, the couple may continue living separate and apart in the same home if it is established that they maintain separate bedrooms, meals are eaten apart from one another, entertaining as a couple is no longer occurring, and sexual relations have ended. This concept arose from a Pennsylvania Superior Court decision in 1984 in which the court held that “living in quarters separated physically and without sharing the incidence and attributes customarily attached to the marital relationship” are enough to constitute grounds for divorce.

No one factor is conclusive. What is important is the existence of “separate lives” and not “separate roofs”. If the parties engage in sexual relations, this does not by itself indicate that the parties resumed the marital relationship.

If a complaint in divorce is filed by one party, a presumption arises that the parties are living separate and apart not later than the date the complaint was served on the other party. This means that it shall be presumed that the parties are separated at least as of the date the complaint was filed and served.

What are the Advantages of a Legal Separation?

Oftentimes, couples do not want to proceed with a divorce because they believe that separating will give them time to reflect on the marriage. Many people believe that the time apart will allow them to decide if they really want to be with their spouse and to allow for a chance at reconciliation. Secondly, there may financial benefits too. For example, married but separated spouses are still married so they can retain the medical benefits that they have. There may be tax advantages and social security benefits too. Thirdly, some people may have religious beliefs that prohibit divorce. These people can start a new life with a legal separation, but they are not sacrificing their religious beliefs in order to do so. Finally, military spouses who remain married for 10 years can then receive military benefits.

Is Divorce the Only Option in Pennsylvania?

No. While there is no “legal separation” in Pennsylvania, a husband and wife can still live separate and apart without a court order. However, if husband and wife do choose to live separate and apart, they should enter into a separation agreement since the Court will not intervene.

Separation Agreements in PA

Even though there is no legal separation in Pennsylvania, a husband and wife who want to live separate and apart should consider a separation agreement. A separation agreement is a negotiated contract that can define with specificity the rights and responsibilities of each spouse while they are separated.

These agreements involve a lot of legal issues so separating spouses should retain a divorce lawyer to help them create a separation agreement. Often, these separation agreements can then serve as the basis for a final settlement agreement for the divorce. A Court can enforce a separation agreement just like any other contract, so it is binding on each party. The following is a few examples of what a good separation agreement will cover:

Division of Property: A big issue that often arises when a couple has decided to live separate and apart is whether they will live in a separate household. If the decision is made to live in a separate household, the couple should discuss how each of them will pay for their respective living situations. For example, if one spouse moves out of the marital home, will that spouse continue contributing to the mortgage, interest, and taxes on the marital home even though he or she will have their own living expenses? The parties must also determine who gets the personal property, i.e. household belongings, cars, etc. These are just some of the property issues that must be discussed and addressed in a separation agreement. Pennsylvania divorce lawyers are important in this regard because they can help their client understand the issues and the legal impact of decisions so the lawyer can then incorporate these decisions in the agreement.

Alimony, APL, and Spousal Support: In Pennsylvania, a spouse may be entitled to Alimony Pendente Lite if the parties have commenced the divorce process or spousal support if they have not commenced the divorce process. They cannot get both. There are some important distinctions between APL and spousal support and a divorce lawyer can help the client understand those distinctions. A divorce lawyer can also help the client determine an appropriate amount of APL or spousal support based on the incomes of the parties and other variables.

Child Custody and Visitation: Parties who get divorced and who have young children should determine who gets physical and legal custody of the children. Usually the parties to a divorce will create a schedule for custody and visitation. Parties who are separating should also consider having a similar agreement. The schedule for child custody and visitation can be incorporated into a separation agreement that can include holidays, birthdays, and vacations.

call (215) 646-3980 to schedule a divorce consultation

Is Separation Relevant To A Divorce Proceeding in PA?

In order to receive a decree in divorce from the Court, there must be “grounds for divorce”. Living separate and apart is a necessary element of a unilateral no fault divorce under Section 3301(d) of the Pennsylvania Divorce Code. In these cases, the spouse who wants the divorce must file a divorce complaint and he or she must allege an “irretrievable breakdown” of the marriage. When the spouse can prove that the parties have continuously lived separate and apart for at least one-year, the Court may grant the decree in divorce even without the consent of the other spouse.

Unilateral Divorce – Separate And Apart

If a spouse files a divorce complaint and alleges an irretrievable breakdown of the marriage under Pennsylvania law, that spouse can allege the parties have lived separate and apart since a specific date. If the other spouse does not believe that the marriage is irretrievably broken or if he or she does not believe the parties have lived separate and apart, then the spouse can file a counter-affidavit. When a counter-affidavit is filed, the matter will be decided by the Court after an evidentiary hearing. The spouses should each have an experienced divorce lawyer present their case.

Learn More About Divorce & Separation in PA

If you are married and you are considering a divorce or a separation in Pennsylvania, you should consult with a divorce lawyer before taking any steps. You must understand your legal rights so that you take the right steps. Please contact The Martin Law Firm, P.C. today for a free case evaluation. Our number is 215-646-3980.

The post Can I File For Legal Separation in Pennsylvania? appeared first on The Martin Law Firm.

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jbmartinlaw1 · 4 years

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How Long Does It Take To Get A Divorce In PA?

The short answer is that it depends. The time it takes to get a divorce in PA can be a few months, or the divorce can drag on for years. Unfortunately, for those remaining in a marriage that is about to end, the parties to the divorce must endure the divorce process regardless of the duration.

For many people going through the divorce process, they simply want it to be over with as soon as possible. Remaining in a marriage that has not worked out well can feel intolerable, and few are enthusiastic about the process of dealing with paperwork, sorting out financial issues, and dealing with their soon-to-be ex and attorneys. The duration of the divorce is mostly determined by two very important factors: 1) the ability of the spouses to resolve matters amicably and 2) the number of divorce – related matters such as child custody, property division, alimony and spousal support, and child support.

Therefore, the answer to the question of how long a divorce will take in Pennsylvania depends in large part on what type of issues need to be worked out between the spouses.

call (215) 646-3980 to schedule a divorce consultation

The Quickest Option: Uncontested Divorce – no children, no assets

The quickest divorce cases are those in which both parties will give their consent to the divorce and when there are no minor children or marital assets to divide up. In Pennsylvania, Section 3301(c) of the PA Divorce Code allows for a mutual consent divorce after 90 days following the filing and service of the divorce complaint. In these situations, the plaintiff-spouse will file a divorce complaint alleging that the marriage is “irretrievably broken”. He/she will serve the divorce complaint on the other spouse and then, after 90 passes, both spouses file Affidavits of Consent with the Court. The Affidavit of Consent is a document telling the Court that the spouse wants to get divorced. The Court will honor the wishes and grant a Divorce Decree soon thereafter.

The key factor here is that the spouses must both consent to the divorce and there are no delays caused by child custody disputes or disputes over the division of marital property.

Keep in mind, however, that filing errors, incomplete documentation, court delays and scheduling may mean that the process takes longer than 90 days, but by working with an experienced divorce attorney you can minimize such delays to the extent possible.

Uncontested Divorce – no minor children, some assets

If both spouses consent to the divorce and they have some marital assets, the divorce process may take a bit longer. The Court will not grant the divorce decree unless and until the marital assets are equitably divided. In these situations, the spouses are encouraged to try to reach an amicable resolution to the equitable division of the marital assets.

For example, if the parties have a marital home and some retirement savings, the parties can negotiate who keeps the home and how much of the retirement savings each spouse will receive. The division of marital assets can be a 50/50 split, a 60/40 split or some other combination. In the best-case scenario, the spouses will use the 90-day window to negotiate a settlement agreement for the marital assets. Then, when the 90 days passes, the parties can submit their Affidavits of Consent to the Court along with the written Marital Settlement Agreement and the Court will grant the Divorce Decree soon thereafter.

If, on the other hand, the spouses cannot agree on a division of the marital assets, the case is often referred to a court-appointed master. The master assumes the role of an arbitrator and makes a “recommendation” for the division of assets. If the parties do not accept the recommendation, then the case is passed on to a Judge and a hearing may be necessary. In these situations, Pennsylvania Courts will not issue the Divorce Decree until the matter is resolved.

Cases that go to the master often take a year or more. If the case gets referred to a Judge, then the case can take two years or more.

Uncontested Divorce – minor children, some assets

When children are involved, this adds another layer of complexity to the divorce process.

Again, during the 90 days, the parties are free to negotiate and resolve child custody matters along with matters involving the equitable division of marital property. The spouses are free to negotiate a custody schedule and other custody related provisions and incorporate them into a custody agreement. If the parties can finalize a written agreement for custody and for the division of marital assets during the 90 days, the parties can be divorced very soon thereafter.

When the parties cannot agree on child custody issues, many Pennsylvania counties implement a process for the case to be heard by a custody conciliator. The conciliator will serve as a mediator and the role of the conciliator is to try to get the parties to agree on a resolution of the dispute. If the conciliator cannot get the parties to agree, then the case is sent to a Judge and a custody trial may be necessary.

Custody cases can take a few years to proceed through the Pennsylvania court system. In addition, if a master is involved in the equitable division matter, that too can take significant time. In these situations, it is not uncommon for the divorce process to take 3-5 years or more.

How Long Will A Contested Divorce Take In PA

If a spouse does not consent to the divorce, then the PA Divorce Code requires the other spouse to allege and prove that the parties have been continuously separated for at least one (1) year. This is a divorce under Section 3301(d). The process is different from a 3301(c) in that instead of the 90-day delay, the delay is at least one (1) year. During this time, the plaintiff-spouse must live separately and apart from the other spouse. This must be continuous.

At the end of that period, the plaintiff-spouse will request from the Court that divorce grounds are established. The other spouse may object to this request and the case will continue to a hearing, if necessary. The court will also still need to address issues of property division, alimony, child custody, and any other matters.

If one spouse does not consent to the divorce, then it is unlikely he/she will agree to an amicable resolution of these other matters. As such, the contested divorce cases that involve minor children and marital property are cases that often take many years.

call (215) 646-3980 to schedule a divorce consultation

Get Professional Insight Into How Long Your PA Divorce Might Take

At The Martin Law Firm, our priority is to help facilitate a quicker, efficient divorce process for our clients. When an amicable resolution of divorce related matters is not possible, we have the experience to litigate contentious matters to achieve our clients’ desired outcomes. Call us today for a free case evaluation at 215-687-4053.

The post How Long Does It Take To Get A Divorce In PA? appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/long-divorce-take-pennsylvania/

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jbmartinlaw1 · 4 years

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A Detailed Overview of The Montgomery County Divorce Process

The Montgomery County divorce process can be confusing and tedious and even a bit overwhelming for individuals going through it for the first time. Men and women anticipating a divorce usually have increased stress when thinking about their soon to be ex, judges, lawyers, and a new life post-divorce. This article will help to explain common questions we get from concerned husbands and wives who want a divorce but have no idea how to start the process. We have represented men and women for over 20 years, so we know what our clients are thinking when they come to our office for the first time.

This article will review common questions we get from our clients who want a divorce but have no idea how to start the process.

Where To File The Divorce in Montgomery County

Before any legal documents are drafted or anything is filed with the Court, the first step in the Montgomery County divorce process is deciding the proper place for the divorce to be filed. So long as you or your spouse has lived in Pennsylvania for least six (6) consecutive months immediately prior to filing for divorce, a divorce can be filed in PA. Once this initial threshold is met, it must then be determined what county in PA the divorce should be filed in. If either you or your spouse lives in Montgomery County, PA or both of you agree on Montgomery County, PA as a proper place for your divorce, a divorce complaint can be filed in the Montgomery County Court of Common Pleas in Norristown, PA.

To initiate a divorce proceeding, either spouse must file a Complaint in Divorce in the Office of the Prothonotary at the courthouse in Norristown, PA. Divorce lawyers usually e-file the complaint online on behalf of their client.

What Is A Divorce Complaint?

A divorce Complaint is a written, legal document which sets forth the various legal matters or causes of actions that must be resolved by agreement of the parties or by the Court. The Plaintiff (the person preparing the Complaint) asserts facts that, if proven, can result in the Court awarding the type of relief requested by the Plaintiff. In a divorce action, causes of action usually include divorce (fault or no-fault), equitable division of marital assets, spousal support or alimony pendente lite (APL), alimony, child custody, and child support.

What Information Is Necessary For The Divorce Complaint?

In addition to the specific causes of action for divorce related matters and allegations in support of them, a Complaint for divorce should include the following:

the names of both spouses and their addresses

a statement that the either or both spouses have resided in Pennsylvania for the requisite time period

the date and place of the marriage

the grounds for the divorce

details of any prior action of divorce or for annulment of marriage

a statement that you were advised that counseling is available

a statement that you may have the right to request that the Court require the parties to participate in counseling

the specific requested relief (e.g. a Decree in Divorce)

How Do I Prepare The Divorce Complaint?

The Complaint should be drafted by an experienced divorce lawyer. The Complaint must include specific information necessary for each of the causes of action and include other information that is required under Pennsylvania law. Montgomery County, PA local Court rules require a Cover Sheet, Notice to Defend, a proper caption, numbered paragraphs, and a signed Verification.

What Are The Grounds For Divorce?

The Divorce Complaint must set forth the basis for the divorce. In Pennsylvania, a Plaintiff can allege fault-based grounds for divorce (e.g. abuse or adultery) or the Plaintiff can generally assert a no-fault divorce. A “no-fault” divorce means that the Plaintiff does not need to prove specific reasons for the divorce. All he or she needs to allege is an “irretrievable breakdown” of the marriage.

No Fault Divorce

Under the no-fault section of the Pennsylvania Divorce Code, when a Plaintiff alleges an irretrievable breakdown of the marriage, the other spouse (the Defendant) can agree to the divorce (mutual consent) or if the Defendant does not agree, then the Plaintiff must prove that the spouses have continuously lived separately and apart for one (1) year. If there is mutual consent, the spouses can be divorced after 90 days passes from the time the Divorce Complaint is filed and served.

Fault Based Divorce

Fault-Based Divorce is quite different, as the filing spouse must prove that he or she is innocent of wrongdoing and that the other spouse is at fault for adultery, endangerment, desertion, imprisonment for at least two years, or indignities to the other spouse. Fault-Based divorce in Montgomery County usually requires a hearing in front of a judge.

Filing The Divorce Complaint in Montgomery County, PA

Once the divorce complaint is complete, the divorce complaint is filed with the Montgomery County Court of Common Pleas in Norristown, PA. There is a fee for filing a divorce complaint and the fees in Montgomery County, PA are posted at http://www.montcopa.org/DocumentCenter/View/276.

If information is omitted, incorrectly stated, or the divorce complaint is in the improper format, not only may it be rejected by the Court, but your rights may be negatively affected, as well. Your divorce attorney should make sure the required information is properly included in the divorce complaint, and can advise you on what additional claims should be included, whether to file a Fault-Based or No-Fault divorce, and what your rights are as the filing spouse.

After The Divorce Complaint Is Filed, What Do I Do Next?

The Complaint must be “served” on the other spouse. Service is a term that has special legal meaning as described in the PA Rules of Civil Procedure. Usually, your spouse is served by either the sheriff or another adult either by hand, by leaving a copy with an adult at your spouse’s residence, or to a person in charge at your spouse’s office or place of business. Another common method is for service by sending the Divorce Complaint to your spouse’s last known address by both regular and certified U.S. mail. The rules permit other methods of service.

Should I Hire A Divorce Lawyer?

Divorce lawyers know the process and the law better than anyone. Divorce is a life altering event and people have one chance to do it right. Hiring a divorce lawyer will help ensure that you are making the right decisions about divorce related matters such as child custody, division of property, and other financial matters such as child support, spousal support and alimony. Divorce lawyers can help you with other common questions that may arise such as:

Can I force my spouse to leave the marital residence?

Should I leave the marital residence?

What if I want to relocate with my children?

How much spousal support am I entitled to?

How do we decide on how to divide the marital property?

What is physical custody and legal custody?

Contact The Martin Law Firm When Considering Divorce in Montgomery County

Getting started with the divorce process is only the beginning but a competent divorce lawyer can assist you from the beginning to the end. A divorce lawyer can advise you on decisions and help you negotiate an amicable resolution to all matters. If necessary, the lawyer can present your case to a Court appointed Master or Judge, in the event of an unresolved dispute. The Martin Law Firm, P.C., located in Blue Bell, PA routinely handles divorce and related matters. Contact us today for a free case evaluation at 215-687-4053.

The post A Detailed Overview of The Montgomery County Divorce Process appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/divorce-in-montgomery-county-pa/

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jbmartinlaw1 · 4 years

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What Is The Divorce Waiting Period in Pennsylvania?

Although deciding to end a marriage is a decision that should not be taken lightly, once that decision is made, most people want to get the process over with as quickly as possible in order to regain their single status and be free of the marriage so Pennsylvania’s divorce waiting period is usually one of the first things a divorce seeker wants to know.

Pennsylvania’s No Fault Divorce Waiting Period is One Year

If a couple is seeking a no fault divorce, then Pennsylvania law imposes a one-year waiting period from the time of separation before either spouse can file for divorce.

Separation means that at least one party to the marriage has decided to no longer continue with the marriage. The court will want to see evidence that this has occurred. The most direct way to show this is that the spouses have not been living at the same address for at least a year, but a couple can be separated even if they live together, so long as they are not engaged in the ongoing activities of a marriage such as sharing expenses and having sexual relations.

It is important to note that this does not mean that a party seeking a no-fault divorce needs to wait a year before contacting a family law attorney. A family law attorney can provide you with ongoing advice and counsel during this period and can also prepare the paperwork necessary to file for divorce as soon as the waiting period is up.

Using the Shortened 90-Day Waiting Period for Uncontested Divorces in PA

When there are no contested issues in the divorce for a court to decide, the couple may avoid the one-year waiting period and instead opt for a shorter 90-day waiting period before filing. To do so, the couple must agree on all issues such as child support, spousal support, division of their property, and child custody.

Pennsylvania Has No Waiting Period for Fault-Based Divorces

If one party can establish fault in the divorce, then there is no waiting period to start the divorce process. “Fault” in Pennsylvania divorce law refers to specific grounds as set out by state law, which must be proved by a showing of evidence in court. Such fault grounds include:

Bigamy: the other spouse is married to another person

Desertion: the other spouse has abandoned the filing spouse for a continuous period of at least one year

Adultery: the other spouse committed adultery

Cruelty: the other spouse has inflicted “cruel and barbarous treatment” on the other spouse, which endangers his or her life or health

Imprisonment: the other spouse has been sentenced to two or more years in prison

Indignities: the other spouse has made life “intolerable” and “burdensome” for the filing spouse

Learn More About PA Divorce Waiting Periods

At The Martin Law Firm, P.C., our family law team works with men and women across Southeastern Pennsylvania in family law matters – including property distribution, alimony, child custody, and visitation – and we are committed to serving your needs in a compassionate and efficient manner. Call us today for a no-hassle consultation regarding any questions you have about divorce in Pennsylvania.

The post What Is The Divorce Waiting Period in Pennsylvania? appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/divorce-waiting-period-pa/

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jbmartinlaw1 · 4 years

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Should You File a Fault or No-Fault Divorce in PA?

Is Pennsylvania a no fault divorce state?

Yes, Individuals who want to file for divorce may have the option of filing “fault” or “no-fault” divorce in PA.

Fault Divorce in PA

As the name suggests, fault divorces are available to those married individuals who can prove very specific reasons why they should be divorced. These reasons relate to the other spouse’s conduct that is considered so bad that the Court will grant the “innocent and injured spouse” a divorce. This type of conduct includes the following:

Desertion for one (1) year or more

Adultery

Cruel treatment that endangers the life or health of the other spouse

Bigamy

Imprisonment for more than 2 years

Other actions making life intolerable for the innocent spouse

No-Fault Divorce in PA

A no-fault divorce allows couples to achieve a divorce without alleging that either spouse is specifically at fault for the breakdown of the marriage. Usually, a no-fault divorce is a divorce by mutual consent, meaning both spouses agree that the marriage is irretrievably broken. This type of divorce requires a 90-day waiting period before the Pennsylvania Courts will grant the divorce. Otherwise, when a party does not consent, Courts will grant a no-fault divorce if the spouses continuously live separately and apart for at least one (1) year.

Proving Fault Divorce Grounds

If a spouse wants to consider a fault divorce, there are things he or she should consider. For starters, an individual must determine whether the other spouse’s conduct rises to the level warranting a fault divorce.

Desertion. Pennsylvania Courts recognize both actual desertion and constructive desertion. An actual abandonment of marital cohabitation, willfully persisting for at least one year may give rise to a divorce. For example, if one spouse moves to Florida and refuses to return to Pennsylvania, the other spouse may have a case for desertion. However, the Court may not grant the divorce if it is determined that there is a voluntary separation or a mere absence. Courts will weigh the evidence carefully. Also, if there is a temporary cohabitation during the one year time period, it may defeat the duration requirement. In one case, the Court held that a husband’s separation from his wife under a Protection From Abuse Order that barred husband from the marital home for one year, was enough to establish a willful and malicious desertion.

Adultery. Adultery is voluntary sexual intercourse by a married person with someone other than his or her spouse. Direct proof is not required, but the innocent spouse must prove, by clear and convincing evidence, the other spouse’s “opportunity and inclination”. Acts of adultery cannot be established solely by confession of the guilty spouse. The innocent spouse must also have corroborating evidence.

Cruel and Barbarous Treatment. The innocent spouse need only prove one single act of threatened violence or harm. This single act, however, must be a serious threat, it must be intentional, and it cannot be the product of provocation. Case law has established that “cruel and barbarous” treatment implies a merciless and savage disposition leading to conduct amounting to actual personal violence or creating a reasonable apprehension thereof, thus rendering further cohabitation dangerous to one’s physical safety.

Bigamy. If a spouse intentionally enters into a second marriage during an already existing marriage, and the other spouse is unaware of this other marriage, the innocent spouse may prevail on fault grounds.

Conviction of Crime/Imprisonment of 2 years. This seems pretty straightforward; however, there are defenses to this fault ground. For example, a court held that where a wife who knew of husband’s criminal activities, permitted him to hide stolen money in their home, wrapped stolen money into rolls, and helped spend the money, was not an “innocent and injured spouse” and therefore could not proceed with a divorce on fault grounds.

Indignities. This is the most frequently alleged fault grounds. It is a catch-all category used by spouses who are in intolerable marriages. A spouse must generally prove that the other spouse’s conduct constitutes a course of behavior which is humiliating and degrading, inconsistent with the injured individual’s position as husband or wife, making that condition intolerable and life a burden to him or her. If a spouse commits one single act of an indignity, it will not be enough. The injured or innocent spouse must prove a continuing course of behavior. Such behavior may include vulgarity, unmerited reproach, manifest disdain, abusive language, malignant ridicule, etc. Alcohol abuse alone is not considered an indignity. Petty quarrels and nagging also do not constitute indignities.

Even though a spouse may be able to prove fault grounds for divorce, a no-fault divorce should always be considered. This may seem confusing, but there are practical and strategic reasons why divorce lawyers sometimes recommend pursuing a no-fault divorce even if fault-based grounds exist.

Benefits of No Fault Divorce in PA

Pennsylvania divorce lawyers will agree that fault divorces in PA are generally harder and more expensive. Fault divorces are contentious, acrimonious, and lengthier than no-fault divorces since fault must be proven, meaning that hearings must be held before a Judge and evidence must be submitted. To the contrary, the legal process for no-fault divorces is easy and quick to complete, typically involving minimal court hearings and can be primarily achieved through basic court filings. Furthermore, Pennsylvania law does not consider fault-based reasons when distributing marital property. For example, the fact that your spouse cheated on you makes no difference in the eyes of the law when property is equitably distributed as part of the divorce. Finally, while your spouse may have committed fault-based reasons for the divorce, pursuing a fault divorce requires that you both relive these events through court filings and hearings. This whole process may be emotional and humiliating for both of you, a process that may easily be avoided.

Benefits of A Fault Divorce In PA

There are still times when fault-based divorces may be the right choice. There are no waiting periods for fault divorce, as opposed to no-fault divorces which require at least a 90 day waiting period for a mutual consent divorce and a one (1) year period where both spouses are living apart if there is an irretrievable breakdown of the marriage (potentially with additional waiting periods for reconciliation). The lack of a waiting period is imperative if there are issues dealing with domestic violence or physical abuse. Additionally, fault-based grounds for divorce are taken into consideration by the Court in awarding, or not awarding, spousal support, APL or Alimony, as well as when determining child custody and visitation schedules.

THE MARTIN LAW FIRM, P.C. – Montgomery County, PA Divorce Lawyers

Any divorce situation requires the expertise and advice of an experienced Pennsylvania divorce lawyer. Even if a no-fault divorce sounds like the easier option, a fault-based divorce may be the better route for you. There are still significant legal steps that must be taken to properly file the divorce complaint in fault and no-fault divorces alike, as well as important topics which must be discussed, e.g. child custody and property rights. Contact a divorce lawyer at The Martin Law Firm, P.C. at 215-687-4053.

The post Should You File a Fault or No-Fault Divorce in PA? appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/fault-vs-no-fault-divorce-in-pa/

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jbmartinlaw1 · 4 years

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Is There Alimony in Pennsylvania Law? How Is It Calculated?

Pennsylvania courts award “reasonable” alimony when the court determines that alimony is “necessary”. Unfortunately, all too often what you may think is reasonable and necessary and what the court thinks is reasonable and necessary are often two very different things. So how does a court determine when alimony is necessary and what amount of alimony is reasonable? Since there is no specific formula or calculation used to calculate alimony in Pennsylvania, you may have to rely on the experience and expertise of a alimony lawyer for guidance.

Purpose of Alimony

The purpose of alimony is not to reward a spouse or punish the other spouse. It is also not to be used solely when one spouse makes substantially more money than the other spouse. Instead, alimony is used to ensure that a spouse’s reasonable needs are met. Spousal support is considered a secondary remedy, which means it is often used when the reasonable needs of a person cannot be met by way of an appropriate division of the marital property or if the spouse does not have an employable skill. In other words, PA alimony laws are in place to provide one spouse with added income where the property received in equitable distribution is insufficient to achieve economic equality between the spouses.

Alimony Factors in PA

Unlike child support and Alimony Pendente Lite (APL), there is no alimony calculator to determine an exact amount of alimony. Pennsylvania courts do not use strict formulas for calculating alimony payments and duration of the payments. Instead, judges are given discretion in not only determining whether spousal support should be paid, but in how much should be paid and for how long. That said, Pennsylvania alimony law does provide a list of seventeen (17) factors for judges to consider. These factors include, among many others, the duration of the marriage, the actual earnings and earning capacity of each spouse, the standard of living enjoyed by each spouse during the marriage, and so on. Arriving at reasonable and necessary spousal support requires a careful analysis of a situation and each and every alimony factor. Judges are given discretion to give greater or lesser significance to one or more of the factors.

Actual Earnings – Sources of Income

Gross income for alimony purposes is broadly defined to include “income from any source”. This means that Judges will look not only to the income from a person’s job or occupation, but the Judge will also consider other sources of income. For example, the Judge will look at retirement benefits including pension income, company benefits, and income from real estate. A spouse’s inheritance actually received may also be closely considered by a Judge.

How Marital Misconduct Affects Spousal Support Judgements

Marital misconduct during the marriage may be considered by the court. If a party commits adultery, then a Judge may be more inclined to give deference to the injured and innocent spouse when determining an award of alimony in PA.

How Long Do You Have To Pay Alimony in PA

Using the relevant factors, courts must determine both the amount of alimony and the duration of alimony. The duration may be for a set amount of time (e.g. 12 months) or an indefinite period of time. Generally, Pennsylvania courts will likely award alimony and for a longer duration when there was a longer marriage. If the marriage is three (3) years or less, spousal support would be unlikely unless there was a compelling situation. For example, if a spouse contributed to the other spouse’s education during this time, the court may consider an award of alimony for the contributing spouse. Conversely, if a marriage lasted 10, 20 or 30 years, then an award of alimony is common in Pennsylvania.

Modification of Alimony

After a Judge enters an award of alimony, the payor or payee spouse can later ask for a modification of the award. This should only be done if the spouse can prove that there is a “substantial” change in circumstances that is continuing. The Judge may then modify, suspend, terminate or reinstate alimony.

Tax Considerations of Alimony in Pennsylvania

Until recently, alimony payments could be deducted by the payer spouse for federal income tax purposes. The recipient spouse would then have to claim the alimony as income. Now, a recent tax law changed this. Under current law, for any alimony payments under a divorce or separation agreement entered after December 31, 2018, alimony will no longer have to be included in the recipient’s income. The payer spouse can no longer claim the payments as a deduction.

Pennsylvania Alimony Agreements

It is not necessary for spouses to argue all the above factors before a judge, as the divorcing spouses are free to reach their own agreement as they see fit on the issue of alimony. Many divorcing spouses choose to reach a settlement agreement on alimony (as well as on property distribution, child custody, and any other issues in the divorce) outside of court and then submit that agreement to the Judge for approval without argument. A divorce attorney can facilitate this process of negotiating a settlement on your behalf and confirming that settlement in a written agreement, signed by both parties.

When an agreement cannot be reached, the court will analyze the factors and the facts of the case to render a decision. In preparing an alimony case, experienced lawyers will perform an analysis of the alimony factors to make a convincing and compelling case on behalf of their client.

How Much Alimony Will I Have To Pay

At the Martin Law Firm, P.C., our family law team works with individuals in divorce and related matters including alimony. We are committed to serving your needs in a compassionate and efficient manner. Call us today for a free case evaluation at 215-687-4053.

The post Is There Alimony in Pennsylvania Law? How Is It Calculated? appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/alimony-in-pa-factors/

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jbmartinlaw1 · 4 years

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Is Inheritance Marital Property in PA?

In Pennsylvania, marital assets must be equitably divided before the divorce can become final. The term “equitably” does not mean “equal”. It generally means “fair”. To determine how to equitably divide the assets, the first step is to determine which assets are marital and which assets are non-marital. Divorce attorneys will often assemble a list of the client’s assets and debts, how they were acquired, how they are titled, when they were acquired, the value of the assets when acquired and the current value. One very common question that arises is if inheritance is marital property in PA, and just how much your spouse if entitled to (if anything at all).

Is An Inheritance Considered A Marital Asset in PA?

Generally speaking, if an inheritance is left to you (and you alone), it is not considered to be marital property subject to division. This is true whether you received the inheritance prior to or during your marriage. However, if the inheritance is at any time co-mingled with joint funds or used for the common benefit of both spouses, then it may be considered marital property. Therefore, if one spouse is thinking about divorce, and receives an inheritance, the spouse should keep that inheritance separate and apart from any joint accounts and the inheritance should not be used for marital expenses, such as paying the mortgage. The inheritance should be kept in a bank account or brokerage account in the name of the recipient spouse.

Is My Spouse Entitled To My Inheritance in Pennsylvania?

Even if an inheritance is kept completely separate from marital funds, if it appreciates in value during the length of your marriage, the appreciated value may be considered a marital asset, subject to equitable distribution. If your spouse contributes to paying any inheritance tax on such assets or you pay the tax with marital funds, the inheritance may be viewed as marital property in Pennsylvania and be subject to equitable distribution. While it may seem relatively simple to keep inheritance money in a separate account and not use it for the common benefit of the marriage, there is more to it than that. Aside from having the awkward conversation with your spouse as to why you are keeping it separate and not using it to benefit the marriage, what if the inheritance is not cash, but real property? How can this be held separately? These are the types of questions and issues that experienced divorce lawyers can advise you on.

What If My Inheritance Consists of Real Estate?

If you inherit a house, farm, or condominium, then there are other things you must consider in order to keep it separate from the marital assets. First, you should make sure that your spouse’s name is not added to the deed. Much like a cash inheritance, if your spouse contributes to the upkeep and increase in value of the real property or you do the same using joint funds, the inherited property may be considered marital property in PA subject to equitable distribution. Each year property taxes must be paid on property left to you, as well as any homeowner association fees, homeowner’s insurance, etc. If your spouse contributes to paying these fees or taxes or you pay for them with marital funds, the property may be considered marital property and your spouse may be entitled to some equity.

In An Inheritance Considered Income?

Pennsylvania Courts have held that a spouse’s inheritance is not income because it does not fit within the statutory definition of income. However, when an inheritance generates investment income, then that income will be added to that spouse’s net income for support or alimony purposes. The added income could also affect how the Court decides to equitably divide the marital property.

What If A Spouse Uses Inheritance Money To Invest In Jointly Owned Property?

Generally, when a spouse places an inheritance in joint names or uses an inheritance to buy jointly owned property such as real estate, the Court will consider it to be marital property. This is considered a gift to the marriage, absent clear and convincing evidence to the contrary. The spouse would have to present clear and convincing evidence that investing the inheritance in the jointly owned real estate was not a gift to the marriage. Sometimes, a Master or a Court will apply the “vanishing credit doctrine”. The vanishing credit doctrine focuses on the length of time that the contributed property is held jointly and not solely based on the length of the marriage. A short marriage of under one year could result in the spouse retaining all of the contributed property as her own. A marriage of over 20 years would result in all of the contributed property as marital. When the marriage is between 1 and 20 years, the Master or Court could apply a ratio of to determine the amount to be considered marital.

THE MARTIN LAW FIRM,P.C. – PENNSYLVANIA DIVORCE LAWYERS

Call the Martin Law Firm, P.C. today for a free case evaluation at 215-687-4053. We can discuss your particular situation and determine how we can help you.

The post Is Inheritance Marital Property in PA? appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/is-inheritance-marital-property-in-pa/

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jbmartinlaw1 · 4 years

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Basics of Annulment in Pennsylvania: Some Important Considerations

There are distinct differences between a divorce and an annulment. An annulment refers to a Court Order declaring that a marriage is void. In other words, an annulment is a declaration that the marriage never legally existed. A divorce, on the other hand, is a Court Order or Decree declaring that the parties are no longer bound by an otherwise valid marriage. One way to think about the difference is a marriage annulment in PA can only occur under very specific, limited circumstances that are set forth in the Pennsylvania Divorce Code. Conversely, a divorce may be available to all married individuals, so long as they comply with the Pennsylvania laws applicable to divorce.

There are other distinctions that include, for example, a spouse’s property rights following an annulment as compared to a divorce. To determine whether an annulment is an option, an individual should contact an experienced family law attorney. Since Pennsylvania law provides very specific requirements or qualifications for annulment, an attorney can make sure the individual makes the right decisions. The following are important considerations:

1. Residence and Domicile of the Spouses Must Be in Pennsylvania

In order to proceed with an annulment in Pennsylvania, one or both spouses must be a “bona fide” resident of Pennsylvania for at least six (6) month immediately prior to commencement of the annulment action. The action must be brought in a Pennsylvania County Court of Common Pleas, subject to specific rules regarding the selection of the right County. A lawyer can determine the proper County in which to initiate an annulment proceeding.

2. Grounds For Annulment of Void Marriages

So long as there has been no cohabitation by the spouses following the removal of specific impediments, Pennsylvania law deems an alleged marriage void in the following situations:

Bigamy. When one spouse already had an existing spouse and there was no annulment, divorce, or death of the former spouse. This is referred to as bigamy which is defined as the simultaneous marriages of a spouse to another spouse or spouses. Bigamy is illegal in Pennsylvania.

Consanguinity. When the married couple is too close in relation to one another, Pennsylvania law prohibits the marriage. Pennsylvania law prohibits marriages between certain blood relatives such as a parent and child, brother and sister, first cousins, and other combinations of blood relatives. This is referred to as “consanguinity”.

Insanity/Mental Disorder. When one spouse is incapable of consenting to the marriage or lacks capacity to consent or did not intend to consent to the marriage. These cases are usually more difficult to prove and often require medical records and physician opinions.

Common Law Marriage. When either spouse to a common law marriage was under 18 years of age. Since 2005, Pennsylvania stopped recognizing common law marriages so this situation is unlikely.

3. Grounds For Annulment of Voidable Marriages

A marriage is deemed voidable and subject to annulment in Pennsylvania in the following situations:

Under 16 Years Old. If one of the individuals to the marriage was under the age of 16 at the time of the marriage.

16 to 17 Years Old. If one of the individuals was 16 or 17 years of age at the time of the marriage and does not have consent from a parent/guardian or authorization from a court. In these situations, an action for annulment must be commenced within 60 days after the marriage ceremony. If the individual later ratifies the marriage after reaching the age of 18, the marriage is no longer voidable.

Intoxication. If an individual was intoxicated by alcohol or drugs when he or she got married and an action for annulment is commenced within 60 days after the marriage ceremony. These cases are difficult to prove and require a careful examination of the facts. These cases often require witness testimony from individuals other than the spouses.

Impotence. If an individual was at the time of the marriage and still is naturally and incurably impotent unless the condition was known to the other spouse prior to the marriage.

Fraud. When one party to the marriage was induced to enter the marriage by fraud, duress, coercion or force from the other spouse. Despite these events, if there was a subsequent, voluntary cohabitation after knowledge of the fraud or release from the effects of fraud, duress, coercion or force, then the marriage is not voidable. Again, these cases require careful analysis of the facts and circumstances.

4. Pennsylvania Annulment Process and Procedure

The process for requesting and obtaining an annulment of marriage in Pennsylvania may vary from county to county. It is always advisable to retain a lawyer for annulment cases. An experienced lawyer can:

analyze the facts and circumstances of a particular situation and determine whether they rise to the level of a void or voidable marriage,

determine what County to commence the action in,

determine the chances of a successful outcome,

prepare the case for any defenses that may be asserted by the other spouse,

comply with all procedural steps including service and pleading requirements,

consult with the client and help the client understand the process and probably outcomes, and

prepare for court appearances, hearings, and meetings with opposing counsel and the Judge.

When it’s impossible to get a marriage annulled, then an individual may consider whether a divorce is a viable option. Experienced lawyers should always discuss the divorce option from the outset since the divorce process may ultimately be easier and with a more certain outcome.

THE MARTIN LAW FIRM, P.C. – PENNSYLVANIA ANNULMENT LAWYERS

If you believe your marriage is void or voidable, you must act quickly to preserve your annulment rights. Contact The Martin Law Firm, P.C. today to discuss your case. We offer a free case evaluation to determine whether we can help you. Located in Blue Bell, Pennsylvania, we handle annulment, divorce and related cases in Montgomery County, Bucks County, Chester County, Delaware County and Philadelphia County.

The post Basics of Annulment in Pennsylvania: Some Important Considerations appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/annulment-in-pennsylvania/

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jbmartinlaw1 · 4 years

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The Pros and Cons of an Uncontested Divorce in Pennsylvania

Many individuals facing a divorce view it as a one-two punch. First, there are the rather deep emotional challenges of breaking up with your spouse and starting a whole new life for yourself and all of the uncertainties that go along with that. Second, there are the legal challenges that include lawyers and the judicial system that you may be facing for the first time in your life. Fortunately, if the other spouse agrees to an uncontested divorce in Pennsylvania, the legal challenges of the divorce process can be reduced significantly.

In the Pennsylvania Divorce Code, couples have the option of pursuing a “no-fault” divorce. This means that one spouse does not have to prove that the other spouse committed adultery or abuse, for example, for a court to award a divorce decree. Instead, under the no-fault statute, a spouse only needs to allege an “irretrievable breakdown” of the marriage. The other spouse then has the choice of contesting the divorce, meaning he/she does not want to agree to a divorce. Or, the other spouse can consent to the divorce.

PRO: Uncontested Divorce Can Be Cheaper, Faster & Easier

With a no contest divorce, you and your spouse are basically saying that you agree that the marriage is irretrievably broken. Procedurally, this allows the parties to request a divorce decree as soon as 90 days after the divorce complaint is filed and served on the other spouse. In a contested divorce, the plaintiff-spouse must prove that the parties have continuously lived separately and apart from one another for one full year before the court can award a divorce decree.

PRO: Relationship After A No Contest Divorce

When parties proceed with an uncontested divorce, and they are able to amicably resolve the other matters, the parties are often able to better manage their post-divorce relationship. Usually divorced couples do not maintain any relationship; however, when minor children are involved, divorced couples still have to co-parent. This requires constant and almost daily communication between the parents. When spouses have avoided a bitter and acrimonious divorce process, they are often better suited to work together as parents for the best interests of the children.

PRO: Other Divorce Related Matters and Settlements

In an no contest divorce in PA, the parties still have to negotiate important matters such as alimony or spousal support, property division (e.g. savings accounts, retirement funds, and real estate), child support, and child custody.

However, when both parties do consent to the divorce, the parties are more likely able to amicably resolve these other matters. In order to do this, the parties must understand their rights and obligations in each of these areas under Pennsylvania law before coming to an agreement. The parties should each retain an experienced divorce lawyer to assist them. These decisions can be complex and sometimes the decisions require negotiations. Divorce lawyers can help their clients understand the issues, provide clients with guidance, and help facilitate the discussions and negotiations that can lead to an agreement. For the most part, spouses who are willing to give and take with one another can find a way to reach an amicable agreement and obtain the benefits of an uncontested divorce.

After both spouses reach an agreement on divorce related matters, a Pennsylvania divorce lawyer can help with the drafting of a marital settlement agreement. The agreement can provide specific provisions for child custody schedules, amount of alimony, length and duration of alimony payments, identification of all the marital assets, and how the parties want to divide those assets. Even though the parties must engage lawyers to assist with this agreement, this process is much cheaper than having a court appointed master or a judge resolve any disputes.

CON: Intimidation

Uncontested divorce and amicable agreements between the spouses can be a bad idea if one spouse is intimidated by the other spouse. Divorce attorneys can find themselves in situations where their clients choose decisions, not based on what is best for the client, but based on a desire to move to rapidly through the process. These situations usually arise when one spouse is intimidated or was abused by the other spouse during the marriage. Individuals facing a divorce must be careful not to give up their rights because they feel frightened or because they want to appease the other spouse to avoid further hostility. Good divorce lawyers will see this and take necessary steps with their client to make sure that their clients do not make decisions based on fear of retribution.

CON: Even No Contest Divorces Have Fighting Sometimes

Sometimes, no matter how bad the parties want to reach an amicable uncontested divorce with a property settlement agreement, it is just not possible. Emotions can run high through an uncontested divorce process and a spouse who is angry may find it difficult to “give and take” during negotiations. Divorce lawyers can be invaluable in these situations because they can add a level of pragmatic thought for decisions, removing any emotions from the choices that the client has to make. The client can hopefully take the cues from the unemotional lawyer in order to make the best decisions.

CON: No Lawyer

Many people believe that removing lawyers from the equation will save money and time. In my experience, as a divorce lawyer, I have found that it is much easier negotiating important issues such as child custody and property division when the other spouse has a lawyer too. Since lawyers can help facilitate discussions and remove any emotional reactions, lawyers can help their clients make the tough decisions. Spouses should only make important decisions if properly guided by lawyers who know the law and their client’s rights under the law. There is no tougher situation than an individual who “thinks” they know the law because they are getting incorrect advice from the internet, a friend, family member or work-colleague. In these situations, agreements are almost impossible to make if one spouse is asserting a position that is contrary to the law. If both sides to a divorce are getting legal advice and guidance from their lawyers that is consistent with Pennsylvania law, then the parties should be able to reach an agreement.

The Martin Law Firm, P.C. Uncontested PA Divorce

The Martin Law Firm, P.C. is a divorce and family law firm located in Blue Bell, PA. We take pride in our ability to earn our clients’ trust and to help our clients with an uncontested divorce process. Call us today for a free case evaluation at 215-687-4053.

The post The Pros and Cons of an Uncontested Divorce in Pennsylvania appeared first on The Martin Law Firm.

source https://jbmartinlaw.com/uncontested-divorce-in-pa/

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