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Feb 17

The Difference Between Equitable and Community Property Division

Equitable and Community Property Division Rules Are Not the Same

More than 700,000 Pennsylvania residents are divorced. This state operates under equitable property division guidelines in divorce proceedings. A spouse who assumes that he or she will automatically walk away with a 50/50 split of marital property is mistaken.

Property Division Rules Vary by State

Divorce laws vary by state. There are currently 41 states that operate under equitable property division guidelines and nine states that use community property rules. In every state, marital property and marital debt refer to assets or liabilities spouses have acquired or incurred during the marriage.

A family court judge overseeing property division proceedings will determine how marital property and marital debt should be split between spouses to settle a divorce. A divorce lawyer can help a concerned spouse protect his or her financial interests in court. Certain divorce-related topics can make property division more complex, such as if spouses have children together and must determine whether they will continue to live in the marital household and, if so, who will live with them as well as who will pay for maintenance and upkeep of the home.

How Equitable Property Division Differs From Community Property Rules

Business partners typically possess shared ownership interests in the assets of their company. If they dissolve their partnership, it is common to divide assets and liabilities between them. It is similar in divorce, meaning that neither spouse has an exclusive right or responsibility to any asset or debt accrued during the marriage. In states where community property division rules apply, all marital assets and debts are equally split, 50/50, between spouses in a divorce. In Pennsylvania and other equitable property states, the division of marital property must be fair but not necessarily equal.

A judge ruling on property division issues in an equitable property state determines how assets and debts should be split so that each spouse receives a fair portion of the overall value of the total assets and the amount of debt to be paid.

Establishing Separate Property Ownership

If spouses signed a prenuptial agreement before their wedding day, it is possible that certain assets or debt have legally been assigned separate ownership or liability to one spouse or the other. Certain issues, such as an inheritance that is designated for one spouse only, may also not be subject to property division in a divorce. Intended spouses can use a prenuptial contract to protect assets or avoid a liability, such as a future spouse’s college loan debt, in case a divorce takes place at some point; this is true whether the state in question has equitable or community property rules.

Equitable Property Rules Enable Asset Trading

In order for a Pennsylvania family court judge to determine a fair division of assets, spouses must fully disclose every asset or property they own. In some cases, it’s possible for spouses to agree to trade assets, meaning they agree to exchange the value of one asset for another. For instance, a car cannot be physically split in two; however, spouses might agree to exchange the value of a car for the value of another asset. Another example might be if a spouse wants to keep the marital home and is willing to exchange his or her value portion of a vacation property or other assets in order to do so. A divorce lawyer can make recommendations to a client regarding specific asset value issues.

Seek Clarification of State Laws Before Heading to Court

Divorce isn’t easy, but it’s often possible achieve a fair settlement and move on with life even if some issues are more complex and challenging to resolve than others. Regarding equitable property division versus community property division rules, it’s critical to understand the difference and to know which laws apply in a specific set of circumstances. If a person lacks knowledge about equitable division guidelines and heads to court assuming that he or she will automatically get an equal portion of assets in a divorce, discovering that this is not necessarily true may have a significant impact on his or her settlement and post-divorce financial status.

It’s always best to act alongside experienced legal representation in court because a family law attorney can protect a client’s rights and financial interests, especially during property division proceedings. If you’re concerned about property issues as you prepare for a Pennsylvania divorce, reach out to a Jenkintown divorce lawyer by calling (215) 886-1266.

Jan 23

Here’s Why Married Couples Delay Divorce Until the New Year

Reasons to Put Off Divorce Until New Year Rolls Around

Divorce agreement sales from March to June 2020 rose 34% from the same three-month period in 2019. The American Family Survey, a national survey held in part by Brigham Young University, found that 34% of married people said the COVID-19 pandemic increased stress in their marriages. Despite these alarming statistics, early state reports indicate that year-to-year divorce rates are down — are couples waiting for 2021 to file for divorce?

Keeping Children in Mind

Children look forward to Christmas as the most magical time of year. One poll found that 48% of respondents under the age of 18 consider Christmas their favorite holiday. Although it might feel like kids don’t value Christmas for the right reasons, children should never be robbed of a great Christmastime experience.

It’s true that children in split families can look forward to two sets of presents. After a divorce, parents typically need months to get settled into their new lives. Initiating divorce proceedings before the new year can ruin the magic of Christmas for children. This is arguably the No. 1 reason why waiting for the new year is the best time to get a divorce.

Holidays Are Filled With Emotions

As you already know, kids love Christmas. Many adults look forward to the holidays, too. Thanksgiving, Christmas, and New Year’s Eve offer back-to-back-to-back opportunities to take time off from work, visit family members, and enjoy countless home-cooked dishes.

Starting in early to mid-November, society collectively gears up for the holidays. City governments put up Thanksgiving and Christmas decorations around town. Advertisers run ads that mention the holidays. Social media fills up with mentions and pictures of fun, family-friendly holiday activities.

Even if you personally don’t celebrate these holidays, there’s arguably no way to avoid festivities. The holidays are typically associated with happiness, joy, and cheer, and breakups and divorces during Christmastime can evoke particularly negative emotions.

By agreeing to postpone divorce until the new year, you set yourself up for a much less stressful holiday season.

End-of-Year Divorces Can Lead to Unexpected Expenditures

The holidays are inextricably tied to consumer spending. Since you like making family members, friends, and co-workers feel special, you want to buy them nice gifts. Although you might not spend too much on each gift, the costs eventually add up.

According to the National Retail Federation’s annual holiday spending survey, the average American shopper plans to spend $998 on gifts and other holiday-related items.

Well over half of all married couples use the same bank account. It’s easy to unexpectedly spend more money than you initially planned during the holidays. During a divorce, however, soon-to-be ex-spouses may go on spending sprees just to spite their partners.

If you’re contemplating when to get a divorce, saving money is likely one of your greatest concerns. Avoiding a divorce around Christmas is a surefire way to save money.

Splitting Year-End Bonuses

Many workers receive year-end bonuses as a means of incentivizing high performance. Typically, employers need end-of-year sales data to determine whether employees receive bonuses or not.

If you receive your bonus before getting divorced, your spouse will likely be entitled to half of it. In most cases, after you formally file for divorce, you don’t have to share your earnings with your partner. If you’re expecting a big bonus, that’s yet another reason to delay your divorce until January.

Let a Divorce Lawyer Help You Through Your Divorce

Divorce is usually a difficult process. Fortunately, waiting for the new year can make divorce a little bit easier. Keep these benefits of delaying divorce in mind while assessing your own situation.

If you’re currently considering divorce or have recently been asked for one, we’d love to speak with you. Here at the Law Office of Joanne Kleiner, we focus on family law and divorce proceedings. Although divorce is notorious for being a long, difficult process, it doesn’t have to be. Our goal is to make the divorce process as seamless as possible.

The Law Office of Joanne Kleiner is located in Jenkintown, Pennsylvania. To schedule a confidential consultation with divorce lawyer Joanne Kleiner, give us a call at (215) 886-1266 today. You can also fill out our secure online intake form to get started.

Jan 19

Co-Parent Relocation With Your Child After a Pennsylvania Divorce

Judges Approve Relocations That Benefit Children

Anthropologist Dr. Helen Fisher, Ph.D., reports that divorce within eight years of getting married results from disappointment, unmet expectations, financial problems, substance abuse, or even physical or emotional abuse. Divorce impacts your children psychologically, physically, academically, and behaviorally. Your children need a strong family, support system, and home where they are loved and can express their emotions.

Moving With Your Child After Divorce

Relocation under Pennsylvania law is open to interpretation, and it means you must modify or renegotiate child custody, time-sharing plans, and how and when you and your partner will each be with your children. Pennsylvania law defines relocation as “a change in the residence of the child, which significantly impairs the ability of a non-relocating party to exercise custodial rights.” Our family divorce lawyer can help you to mediate a cost-effective way to change your child custody agreement.

Notification of Interested Parties

Changing your child’s home address requires the signed approval of all who have access to the child under your existing court order or a judge’s approval. The relocating parent must formally notify all parties at least 60 days prior to the move. Co-parents must agree and negotiate a parenting plan that’s in the best interest of both you and your children.

Modification of Your Child Custody Order

The non-relocating parent is obligated to agree with the petitioner and negotiate new co-parenting or visitation arrangements or object to the proposed move by stating objections. If the co-parent or a biological parent objects to the change, the judge schedules a hearing. You should never simply move with your child because you can be held in contempt of court and ordered to return the child to your co-parent.

Relocation Hearing

The judge considers alcohol or substance abuse, DUI convictions, spousal or child abuse, and the contribution of each parent to the financial support of the child. Generally, it’s important to maintain a relationship with your child to be considered for visitation or joint custody, but an absent parent may be granted visitation or custody if the petitioning parent is not a good choice.

The judge will approve changes that benefit your child financially, emotionally, or educationally. For example, your child may benefit when you take on a higher-paying job. The judge may decide moving closer to family and friends increases your children’s support network and approve your move.

Mediation of Child Custody Issues

Our family divorce lawyer with more than 30 years’ worth of experience can help you to mediate a cost-effective solution to the modification of your child custody order. Agreeing on child custody issues and creating an amicable relationship between co-parents is best for your children. If you intend to appear in court with a lawyer, you’ll have to pay legal fees. A judge will consider the physical availability of the child to the non-relocating parent, including time-sharing, the distance between the homes, how the child will travel from one house to the other, and who will pay for the trip.

Competing Presumptions

Relocation with a child after divorce opens up the issue of child custody for all parties who are interested in each child. Competing presumptions allow a biological parent to seize the opportunity to gain joint custody or visitation that they, otherwise, did not enjoy. A DNA test determines who is a child’s biological father, but the judge has the right to decide that another man is your child’s legal father. A biological father can file for custody of his child if his wife is the co-parent attempting to relocate. If your child is a teenager, the judge will ask your child where he or she wants to live.

Law Office of Joanne Kleiner

Call our family divorce lawyer at (215) 886-1266 today to schedule a confidential consultation in our conveniently located Jenkintown office. You can meet with us before you change your residence or respond to a petition from a co-parent who hopes to relocate with your child. Our family lawyer may be able to help you if you are a child’s biological parent who hopes to gain joint custody or visitation rights with your children.

Dec 23

What’s the Difference Between Physical and Legal Custody?

Understanding How the Different Custody Types Work

If you are one of the 13.4 million families where the parents do not live together, it is important to have a clear custody arrangement. The right agreement ensures your child has the care they need. When discussing custody arrangements, it is important to keep in mind that physical and legal custody are actually two very different things.

What Is Physical Custody?

Physical custody is about who the child actually lives with. If a parent has physical custody, they have the right to have their child live with them at least some of the time. Physical custody can be divided in any manner of ways. Some parents split physical custody 50/50 while others may just have custody on weekends or at holidays. It is also possible for one parent to have sole physical custody. In these cases, the child lives entirely with one parent. However, the parent without physical custody may still have parenting time rights with their child.

What Is Legal Custody?

When talking to your divorce lawyer about custody, keep in mind that legal custody also exists. This is a type of custody that lets you have input in your child’s upbringings. Legal custody allows you to make decisions about things like:

  • Where your child goes to school
  • What medical care your child receives
  • What religion your child learns about
  • Whether your child goes to therapy

Legal custody is typically shared 50/50 or awarded to just one parent. However, in some cases of joint legal custody, a judge may decide one parent is the “tie breaker” who gets to make the decision when both parties do not agree. Typically, the tie-breaking parent is the one who is the main caregiver of the child.

Which Type of Custody Should You Seek?

Now that you know a bit about legal vs. physical custody, it’s helpful to learn a little about how these forms of custody are awarded in a divorce or separation. Who gets custody is determined based on the best interest of the child. When both parents are responsible, loving parents, the court usually prefers that both legal and physical custody are split. However, any separation can get complicated, so sharing physical and legal custody is not always an option.

Most parents instinctively want to seek sole physical custody because they want to spend as much time with their children as they can. Sole physical custody can provide a child with more stability and ensure they remain with their primary caregiver. It is often a good idea if the other parent is too busy for child care or does not adequately meet a child’s needs. However, joint custody can also be a good idea. If you and your co-parent both have good relationships with your child, spending time with both parents can meet your child’s emotional and social needs.

In most cases, courts prefer to maintain joint legal custody whenever possible. This allows both parents the opportunity to participate in their child’s upbringing. However, you will need sole legal custody if the other parent is abusive. It might also be a good idea to try for sole legal custody if the other parent is neglectful or does not spend time in the child’s day-to-day life. In some cases, legal custody is a matter of convenience. If a parent lives far away and does not communicate promptly, you might need sole custody to ensure your child’s needs are met promptly.

Finding your ideal division of physical and legal custody can take some time. Since the subject is so complex, it’s a good idea to get help from an experienced divorce lawyer. The Law Office of Joanne Kleiner has been assisting families in Montgomery, Bucks, and Philadelphia counties for over 25 years. We can mediate for an amicable separation, or our team is happy to fight for you in a contested custody case. Email us or call (215) 886-1266 in Jenkintown to set up your consultation.

Dec 19

Is It Worth It to Fight for the Family Home?

What to Do With the Family Home in a Divorce

Pennsylvania homes have appreciated by nearly 4% in the past year, creating some tough decisions for divorcing couples. Specifically, people are faced with the choice to fight for the family home or leave it. Generally, you have three options: try to fight to keep the home; let your ex-spouse stay, and be paid for your share; or sell the home, and divide the proceeds.

Will the Court Allow You to Stay?

The first thing to think about is whether the court will actually allow a person to stay in the home. Usually, a judge will want to ensure that there is as little upheaval as possible for the children. If they are accustomed to living in the home, the court will not want to make them move. That would not be in the best interests of the children. Accordingly, the parent who has physical custody of the children will have the best chance of keeping the family home.

Can You Afford It?

Moreover, both ex-spouses need to think very hard about whether they can afford the family home on their own after the divorce is final. There is a major difference between affording the mortgage on one income rather than two. It may still be a stretch even if you are receiving child support. The last thing that you would want is to become “house poor,” spending a majority of your income on housing with little to spare for anything else. These days, the ability to refinance your home at a lower interest rate could help with being able to afford the home.

When you are getting divorced, you are also balancing your short-term financial needs and your long-term plan. Things like retirement planning often take a short-term break while you get your financial feet under you after the divorce. However, you should factor in things like whether and when you will be able to retire. If keeping the home comes at the expense of your financial future, you should think hard about whether it is what you want.

Decisions About the Home Can Get Contentious

In addition, fighting to keep the family home would necessarily involve the word “fight.” This means that your divorce can end up in a hostile place. If you have children and need to co-parent, this could pose a long-term complication to a relationship that you need to preserve. While this is not to say that you should automatically surrender to what your ex-spouse wants in the name of harmony, you should recognize that it will come at a cost.

Finally, you need to weigh the factors of wanting to maintain continuity versus being better off with a fresh start. Some people may benefit from moving somewhere else, especially if staying in the same place will consume them with unpleasant memories. However, others may want to stay where they are because there would be too many changes for them to process.

In your particular case, you need to decide what is best for your specific situation. The one unchanging factor is that you need to be honest with yourself and realistic, both in terms of what you can afford and whether you can agree with your ex-spouse. You have multiple options that you need to consider while working together with your divorce attorney. Deciding to fight to keep the house can be stressful if that is your preferred course of action.

Although it may require some maneuvering, there is a way that both individuals can keep the home together, even after the divorce, in a collaborative manner. Before you decide on one course of action, consult with your divorce lawyer about the strength of your claim and whether there are any other possible solutions. Keeping or giving up the home may not necessarily be an either/or proposition.

To learn more about this and other issues affecting your legal case, contact a Jenkintown, PA, divorce lawyer at the Law Office of Joanne Kleiner at (215) 886-1266.