Adoptions in Pennsylvania require several steps including but not limited to Report of Intent to Adopt, Termination of Parental Rights and Petition for Adoption. An adoption can be sought by a single parent, a married couple, or an unmarried couple including gay and lesbian couples. There are many circumstances that can surround adoption proceedings, and it is important to have a family law attorney involved in cases of Stepparent Adoptions, Interstate Adoptions, International Adoptions, Same-sex Couple Adoptions, or any other Adoption proceeding.
One of the most common misconceptions by potential clients and clients in Pennsylvania’s family law is the concept of alimony. Is alimony, even an option in Pennsylvania? Yes, of course! However, each case is different and whether you are entitled to alimony is a question for the court. The Divorce Code at 23 Pa.C.S.A. § 3701 states that when a divorce decree (and equitable distribution has been finalized) has been entered, “the court may allow alimony, as it deems reasonable… only if it finds that alimony is necessary.” There are seventeen (17) factors that the court will look to in determining whether alimony is reasonable and necessary. They are as follows:
(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be consideredby the court in its determinations relative to alimony except that the court shall consider the abuse of one party by the other party.
(15) The Federal, State and local tax ramifications of the alimony award.
(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.
(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.
If the Court determines that alimony is reasonable and necessary, then the Court has the discretion to determine the length of time a person pays/receives alimony. The Court may base it upon the length of the marriage, the time it would take the recipient spouse to find appropriate employment, or an event (such as a child graduating from high school or the recipient spouse becoming eligible for social security or retirement).
The Court has lots of discretion when it comes to alimony, but the bottom line is that alimony exists in Pennsylvania.
Alimony Pendente Lite or APL
First off, ‘Pendente lite’ is a Latin term meaning, ‘pending the litigation’. So this is a support order that deals with payments prior to the final divorce decree. Generally, an APL order last until the divorce decree has been finalized and entered and equitable distribution of the assets and debts have been resolved. Under an APL order, the amount payable is calculated upon a percentage of the difference of total net incomes of the parties and after a consideration of additional support obligations. The Pennsylvania courts have decided that the overall purpose of the APL is to allow both spouses to have financial ability to proceed in a divorce action. Therefore, the obligor cannot raise potential entitlement defenses available in spousal support actions (see above). This means, that even if the spouse raising the APL claim, has committed adultery (for example), that spouse still may be entitled to APL.
There are potential issues with APL, first, for the spouse receiving APL, maybe that spouse wants to drag their feet because they are getting this support and attempt to stall the entry of the final divorce decree and equitable distribution. More often than not, the spouse required to pay those APL payments is generally trying to finalize the divorce and equitable distribution issues as soon as possible to limit the duration of APL payments.
An annulment is a court procedure that terminates a marriage. Unlike divorce, annulment dissolves the marriage and treats it as thought it never took place. Annulment is appropriate under certain circumstances such as misrepresentation, fraud, concealment, or refusal to consummate the marriage.
Calculation of Spousal Support, APL, or Alimony
The calculation of the three different types of support (Spousal, APL, and Alimony) payable to a spouse, the court must first be informed to whether the defendant in the support action has any obligation to pay child support and the amount owed on each and whether there is any prior orders of support from a previous spouse. After those issues have been hashed out, the spousal support and APL are generally based upon a fixed percentage of the difference of the net incomes or earning capacities of the spouses. If there is a child support order, the fixed percentage is 30% and if child support is not an issue, the fixed percentage is 40%. How the court determines the amount of alimony to be awarded, the fixed percentages of the differences of their respective net incomes or earning capacities are not used. Rather, the court considers the reasonable needs of the dependant spouse and the amount of money needed to supplement the dependant spouse’s income or earning capacity.
Child Abuse & Neglect
Child Abuse occurs where an act or failure to act by a parent or caregiver results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an imminent risk of serious harm.
Neglect of a child occurs where a parent or other person with responsibility for a child fails to provide food, shelter, clothing, medical care, or supervision to the degree that the child’s health, safety, and well-being are threatened with harm.
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent’s duty to care for the child. Custody issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.
Child Custody Mediation
When child custody issues are contentious and the parents are unable to cooperate, they are often required to attend court-mandated mediation. Mediation is usually required to try to filter cases out of the court system and prevent lengthy trials. Usually, mediation results in the successful resolution of many custody issues.
Children’s rights are the human rights of children (younger than 18), especially their right to association with both biological parents, human identity as well as the basic needs for food, universal state-paid education, health care and criminal laws appropriate for the age and development of the child. Some interpretations of children’s rights include the right to be free from mental and emotional abuse and the right to care and nurturing.
Child protection, or child welfare, is a term used to describe a set of usually government-run services designed to protect children and young people who are underage and to encourage family stability. These services include foster care, adoption services, services aimed at supporting at-risk families so they can remain intact, and investigation of alleged child abuse.
A cohabitation agreement is a form of legal agreement between a couple who have chosen to live together outside of marriage (whether they are heterosexual or homosexual). Similar to the basic idea of a prenuptial agreement, a cohabitation agreement is a contract for a couple who want to live together in order to protect themselves from unnecessary costs and litigation should their cohabitation end. The couple can clearly establish their property rights and what arrangements might be made for mutual financial support, dealing with debt, caring for children, and other issues involving the breakdown of the relationship. The agreement also allows the parties to determine in advance what will happen to specific assets as well as assets that have been purchased jointly if they separate. This agreement is intended to bind both parties
Collaborative Family Law
Collaborative law, or collaborative practice/divorce/family law, allows couples who have decided to end a marriage or separate to work with their lawyers to settle out of court. This usually requires each party to sign a “participation agreement” which binds them to the process and disallows their attorneys to represent them in further family law matters in court. This usually allows for a less oppositional process.
Contract law cuts through every aspect of the law. Whether if you are a business owner or a family man, you probably have daily dealings with friends, partners, suppliers, vendors, and various other parties that will require you to enter a contractual relationship. A properly constructed contract can and will ensure all parties are aware and of their obligations. The contract can protect the parties in the unfortunate situation where one parties fails to meet the terms of the agreement. We can assist-clients in:
- Negotiating contract terms
- Drafting contracts
- Reviewing and revising contract terms
- Litigating contract disputes
- Contracts involving intellectual property, such as licensing agreements
- Lease agreements, including commercial leases
- Buy-sell agreements
- Partnership contracts
- Real estate contracts
- Sports and entertainment contracts
Correction and Rehabilitation
Correction and rehabilitation are very important when dealing with juvenile offenders, however, as long as the punishment is not retributive punishment. The statute is not punitive, but rather takes a corrective and protective approach that’s overall purpose is to make better citizens out of the offender. Thus, the juvenile court adjudicates status, rather than a conviction of crime with a societal stigma. The rehabilitation of the minor should be paramount as well as the best interests of the child.
Criminal Defense (Not really sure where to go here)
LaMonaca Law can and will represent you in criminal matters. Our practice includes representation of clients in trials and appeals in State and Federal courts throughout the Delaware Valley. We will begin our vigorous defense immediately. Our firm is prepared to handle cases involving a wide range of criminal charges, including:
- DUI/drunk driving
- Blood alcohol content
- Traffic violations/traffic tickets
- Juvenile offenses/delinquency
- Drug crimes
- Drug conspiracy
- Drug possession with intent to deliver
- Violent crimes
- Sex offenses/rape
- Indecent exposure
- Statutory rape
- Domestic violence
- Date rape
- Federal and white collar crime
- Mortgage fraud
- Insurance fraud
- Credit card fraud
- Money laundering
- Computer crimes/Internet crimes
A dependent child is a child, while less than 18 years old, for various reasons requires the protection and assistance of the court, through no clear fault of his parents. The dependent child may be a child who is without a proper parent, legal guardian, or legal custodian. The child will need to be appointed a proper guardian or custodian. The child may be one who need special medical, social, education services that his parents are not able to provide. Finally, it may be a situation where with good cause, the parents of the child, want to be relieved of guardianship and custody of the child.
A divorce is a legal procedure that terminates a marriage. In Pennsylvania, there is no-fault divorce. A divorce may be granted based on mutual consent or irretrievable breakdown of the marriage, even if neither spouse is at fault. There are fault grounds available in Pennsylvania if applicable.
A domestic partnership is a legal relationship between two people that are neither married nor joined by civil union. A domestic partnership allows two non-married individuals to enjoy certain benefits granted to married individuals.
Domestic Relations is a broad category that includes divorce, property settlements, alimony, spousal support, the establishment of paternity the establishment or termination of parental rights, child support, child custody, visitation, adoption, and the emancipation of minors.
In Pennsylvania and many other states, domestic tort litigation are a relatively new area of civil litigation. Domestic torts include such acts as:
- Intentional/negligent transmission of a Sexually Transmitted Disease
- False Imprisonment
- Intentional infliction of emotional distress
- Misrepresentation and fraud
- Malicious prosecution
- Abuse of process
- Tortious interference with custody/visitation
- Invasion of right of privacy
Domestic Violence and PFAs
Domestic Abuse or Domestic Violence is a series of behaviors or pattern of conduct that is used by an abuser to physically, emotionally, sexually, and/or psychological control a family member or relationship partner. Abuse can be physical, verbal, or sexual and often worsens over time.
Victims of Domestic Violence or Abuse can seek a Protection From Abuse (PFA) order from the Court. This is a civil order that provides the victim with protection from his or her abuser. PFA petitions can be filed where a victim is being abused by or is in fear of abuse by a family member, spouse, intimate partner, a former intimate partner, or someone the victim has a child with.
Employment Law encompasses issues such as wrongful termination, sexual harassment, discrimination, workers’ compensation, and job stress.
Estate Planning is essential for protecting one’s self and family in the event of incapacitation or death. In order for one’s spouse or other individual to take over one’s wealth and finances, there must be an estate plan in place or the court will need to be petitioned.
In most states, including Pennsylvania, spouses can sue one another for intentional or negligent injury to their property; however some states will not allow spouses to sue one another for intentional or negligent injury to a spouse’s person.
Minor children, in all states, are allowed to sue their parents for intentional or negligent injury to the child’s property and all states allow suit to be brought against parents by an emancipated child for personal injury to the child.
Equitable distribution is the division of property, assets, and liabilities between spouses in a divorce. Equitable distribution can be handled by an agreement, property settlement, or by court order. If a trail is required for equitable distribution, determining which property, assets, and liabilities were acquired, earned value, or lost value during the marriage can be a challenge. The goal of equitable distribution is to ensure that each party walks away with his or her fair share of marital property, assets, and liabilities. If a nuptial agreement is in effect (signed either before or after the marriage), same would play a large role in distributing property. Some other factors the court will take into consideration for equitable distribution are the age, health, occupation, earning capacities, sources of income, and skills of the parties. However, it is important to note that sometimes equitable distribution does not wind up being equal distribution. Sometimes, parties receive disproportionate portions of the marital estate based on the factors listed above.
Today, most potential employers, current employers, government agencies, insurance companies, and even banks will conduct criminal background checks on potential employees or even customers. If and when a background check is conducted, criminal charges that might appear on your record could influence your earning capacity and ability to get a job, a promotion, employment with government agencies, insurance, or housing.
Your arrest record could affect your future, do not let it change your course. In the state of Pennsylvania, a criminal charge may be expunged under the following circumstances:
- If the charges were withdrew by the Commonwealth;
- If the charges were dismissed by the Court prior to trial;
- If the accused was found ‘not guilty’;
- The arrest occurred when the offender was a juvenile and more than five years has elapsed;
- If you have successfully completed the Section 17 probation program;
- If you have successfully completed a county ARD program;
- If the offender is 70 years of age or older and has not been arrested in the last 10 years;
- Offender is deceased;
- Offense is a summary offense (after 5 years of no prior arrests from date of summary offense); and
- Offense is pardoned
If you and your family are having issues that cannot be resolved through the normal family process and you feel that maybe outside assistance could be helpful, then family arbitration could be the solution for you and your family. Let an experienced arbitrator come into the family situation and give a fair and accurate assessment. This might be appealing to you. If it is, trying this option will possibly avoid litigation. Arbitration is one of the most effective tools in resolving conflict.
Many families let their problems/issues go unresolved. These issues then boil-over into other problems that can cause a rift. Let’s try and avoid this situation and try to resolve you and your family’s issues through arbitration. However, family disputes are definitely never pleasant and family arbitration might not be a trip to the Caribbean, it is definitely worth trying this process to avoid potential litigation. This could be the best option for you and your family.
Family mediation is a tool used to offer assistance to families in dispute. Divorce mediation also falls into this category, but it used by couples in the process of divorcing. Mediation can either be collaborative, when both parties work together with one mediator, or individual, when each party has his or her own mediator. Mediation is often used in an attempt to afford the time and expense of court.
The recently amended custody law in Pennsylvania requires that custody determinations be made without regard for the gender of the parent seeking custody. This means that any concern that a court may favor a Mother simply because she is a child’s mother is no longer valid. Fathers are encouraged to seek custody and visitation rights and to seek primary custody where it is in the best interest of the children to do so.
Gay and Lesbian Family Law
While Pennsylvania has not yet legalized gay marriage, there are areas of family law that can be utilized to create legal protections between gay and lesbian couples. A family law attorney is imperative in the context of gay and lesbian adoption, asset or property protection, or any other domestic issue that may arise.
Gay and Lesbian Couples • Unmarried Heterosexual Couples • Grandparents
The attorneys at the Law Firm of Gregory P. LaMonaca, P.C., are aware that the ‘nuclear family’ has changed over the past 20 years. Currently, a ‘Modern Family’ may parallel the popular ABC show by the same name. The familial household may be a traditional heterosexual family, a same-sex couple, two unmarried people with children living together, and even grandparents raising children.
Our firm is dedicated to helping diverse and non-traditional families in Pennsylvania work through various legal issues and ensures that they have their rights protected.
Our attorneys provide legal representation for all types of non-traditional families, including:
- Homosexual couples (Gay & Lesbian);
- Unmarried heterosexual couples;
- Families where grandparents serve as the primary caregivers;
- Siblings who live together and raise their children in the same home.
Undoubtedly, you have noticed that Pennsylvania laws are not evolving as quickly as the ‘Modern Family.’ This means that same sex couples have not been granted the same rights that traditional married couples enjoy. Currently in Pennsylvania, gay couples and lesbian couples can have children together via assisted reproduction and second parent adoption, but same-sex couples marriage’s are not recognized in Pennsylvania. We can also advise New Jersey couples who were granted a civil union in that state or entered a marriage or civil union in another state that is not recognized now that they have moved to Pennsylvania.
A grandparent can seek custody of a child under certain circumstances. Those circumstances include: where a parent of the minor child is deceased, where the parents have been separated for at least six months or commenced and continued a proceeding to dissolve their marriage, or where the child has resided with the grandparent for a period of 12 months or more and is removed from the home by the child’s parent.
International Family Law
With the increasing globalization of the world economy, many families no longer hold to traditional living situations. Many families do not have a permanent residence and might even own property and businesses in different states and different countries. As a result, interstate and international marriages and relationships are becoming more and more the status quo. The ‘Modern Family,’ and not the television show, are becoming with the economy more globalized, the family laws around the world remain interwoven with local influences.
This can make decisions about which state or country’s laws apply to an interstate or an international divorce, custody dispute, or support matter can be complex and also significantly impact the outcome of any litigation. Our firm can and will represent you in interstate and international family law matters.
The different laws that could affect interstate or international family law matters include:
- Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
- The UCCJEA governs both interstate and international child custody. It determines which state or country will have jurisdiction in a child custody proceeding. The Court must consider the factors set forth in the UCCJEA in deciding whether it, or another state, or country has jurisdiction.
- Uniform Interstate Family Support Act (UIFSA)
- The UIFSA provides an easy way to enforce and collect both child and spousal support (alimony) across state and international borders. While enforcing and collecting support is made easier by the UIFSA, there are various issues that often arise in the context of an interstate or international family law proceeding that command a specialized knowledge of the UIFSA.
- Parental Kidnapping Prevention Act (PKPA)
- The PKPA is a Federal law that has requirements for how different states must enforce interstate child custody orders. It proscribes a state from taking jurisdiction of a child custody proceeding that was commenced while another child custody proceeding involving the same children and parents is pending in another state.
- Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention)
- The Hague Convention is an international treaty that United States has entered into with several other countries. If a family is involved in an international child custody dispute, the Hague Convention will apply, if the United States and the other country have both signed the treaty. The Hague Convention’s purpose is to protect children from being wrongfully removed across international borders by providing an international procedure for the children’s prompt return to their country of “habitual residence.”
- The Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (Hague Adoption Convention)
- The Hague Adoption Convention is an international treaty that applies to all adoptions between the United States and other countries that have joined this agreement.
- The Hague Adoption Convention is an international treaty that applies to all adoptions between the United States and other countries that have joined this agreement.
International Child Abductions
An international child abduction takes place where a parent engages in parental kidnapping to another country. When a child is removed from the United States by a parent against the other parent’s wishes, or not returned from another country at the appropriate time, there are federal and international laws that can assist in bringing the child home. The Hague Convention is an international treaty that is used to facilitate the return of abducted children to their home country.
When a divorced is finalized, sometimes a parent will take a child(ren) to live out of the state where the divorce took place. Questions will undoubtedly arise about potential support modification and enforcement of court orders for child support or alimony. The fifty different states, U.S. territories, and with foreign countries added to the potential situations, these support questions require uniformity for resolution.
The Uniform Interstate Family Support Act (“UIFSA”) was adopted by many states to provide that uniformity. The UIFSA has many different formats in the United States. Currently, 24 states rely upon the 1996 version of UIFSA, 18 states have adopted the 2001 version and 9 states have adopted the 2008 version.
Although the UIFSA has been amended several times, it still has specific uniform provisions. We can inform you about the version in force where you currently reside and how it will affect you and your support action.
It is worth noting that if the parent and the child do not live in the state that issued the original support order, it does not necessarily follow, that issuing state loses its jurisdiction over the support order. Most likely, that state will retain the exclusive jurisdiction to modify or terminate its order. Different states will not be permitted to modify or terminate an order.
UIFSA also may apply to enforcement of support orders of foreign countries that recognize and enforce support orders from the United States.
UIFSA applies only to the enforcement of support of a child or spouse of the support obligor. It will not apply to proceedings for any other type of support. The UIFSA does not allow for the modification of a child support order that has been sent to the enforcing state.
The UIFSA does not allow child custody issues to be raised in the support proceedings. It has a limited specific purpose.
When suit is brought under the UIFSA, the procedures and law of the state or country where the suit is brought applies. Depending on the particular circumstances this could be a beneficial situation or completely the opposite.
If you have concerns about enforcing a support order from another state against your ex-spouse, your first course of action, is to obtain “certified” copy of the support order from domestic relations or the clerk of the court that entered the original order. Bring that copy to our office. We will “register” the foreign support order in the jurisdiction where the obligor lives. We will prepare the necessary papers including a sworn statement for registration and send the necessary paperwork to the appropriate clerk for filing. Registration is not a complicated procedure, however it is better to let an experienced attorney help you through the process.
UIFSA allows you to file your enforcement proceeding directly in the court of the state where you want the order enforced, probably where your ex-spouse currently resides. You do not have to go through the state court that created or issued the order as a prerequisite. UIFSA specifically authorizes the use of a private attorney to enforce the support obligation. You do not have to rely on the state to enforce the order for you. The act allows for recovery of expenses and attorney’s fees. Once registered in the appropriate state, the foreign order is enforceable in the same manner as a support order issued by the state where it was registered. This includes orders for income withholding. Remember, the enforcing state shall recognize and enforce but may not be able to modify the support order.
When courts from two different states have a common order. The UIFSA will guide the court in making its determination. Generally, the law of the issuing state governs: the nature, extent, amount, and duration of current payments under a registered support order; the computation and payment of arrearages and accrual of interest on arrearages under the support order; and the existence and satisfaction of other obligations under the support order.
Whether the enforcement of the order is barred by the statute of limitations is answered by using the longer of each state’s statute of limitations.
The court that enforces the order shall apply the procedures and remedies of the responding state to enforce the collection of arrearages and interest. This is important because not all states allow the same types of remedies to collect support. For example, some sources of income, such as retirement plans, IRAs, and other state-exempt property, may not be subject to collection for unpaid support obligations in the enforcing state.
Juvenile Criminal Defense
In recent years, juvenile court cases have greatly increased in number and importance most likely to the unprecedented increase in juvenile delinquency and crime throughout the country. The public has spoken out about these issues and their concern is deep. There has a been a great change in the overall attitude and treatment by the state toward the juvenile’s delinquency and crime. Criminal law has come a long way from not differentiating between the adult and the minor who reached the age of adulthood and criminal responsibility. In some states, a seven-year-old could be held to the same standard of culpability as an adult. Thankfully, today, the trend has shifted from retribution towards reformation, and throughout the country rehabilitation of its troubled youth is paramount.
A juvenile delinquent has many socially negative connotations in today’s society. A juvenile delinquent in Pennsylvania, is a minor child under 18 years of age, who violated any ordinance or law of the state, or who committed an act that would be considered a crime if committed by an adult.
The main goal of the juvenile court is to resolve cases involving delinquent and dependent juveniles within their proper jurisdiction (usually a county), and determine what punishment would be best to help that particular youth, as well as society as a whole. In other words, the juvenile court should 1) determine in what manner the jurisdiction, if found to exist, should be exercised over the child; and 2) find from the evidence, whether the facts alleged in the complaint are true and sufficient to bring the juvenile with the jurisdiction of the juvenile court.
Landlord–tenant law deals with the rights and duties of landlords and tenants. It includes elements of property law and contract law. Landlord-tenant law governs the rights and obligations landlords and tenants owe to each other. For example, landlords have the right to be paid rent and tenants have the right to acceptable living conditions.
Marital agreements, or postnuptial agreements, are written contracts which are signed after a couple gets married or enters a civil union. A postnup is usually used to arrange for the division of the couple’s assets in the event the couple decides to divorce or one of the spouses dies. This is very similar to the purpose of a prenuptial agreement, except postnuptial agreements are signed after the couple is married. Postnuptial agreements are subject to the statute of frauds.
Under the Statute of Frauds, a prenuptial agreement is only valid if it is completed prior to marriage. After a couple is married, they may draw up a post-nuptial agreement.
Postnuptial agreements must have all the elements of all contracts:
In the United States, as with prenuptial agreements, five additional elements are typically required for a valid postnuptial agreement:
agreement must be in writing (oral promises of this kind are always prohibited)
must be executed voluntarily
full and/or fair disclosure at the time of execution
the agreement cannot be unconscionable
it must be executed by both parties (not their attorneys) “in the manner required for a deed to be recorded”, known as an acknowledgment, before a notary public
Marital Property Distribution
Marital property is anything that was acquired during the marriage, or anything that increased or decreased in value during the marriage even if the property was acquired before marriage. For example, if one party’s pension plan was started before marriage, but increased in value during the marriage, the other party is entitled to a share of the increase in value of that pension. Usually marital property is distributed during the equitable distribution process, either by agreement or by court order.
Matrimonial Law, also known as family law, deals with a broad range of issues including, but not limited to, marriages, civil unions, domestic partnerships, spousal or child abuse, adoption, surrogacy, child abduction, child custody or visitation, divorce, annulment, property settlement, alimony, spousal or child support, and paternity, among other issues.
Medical malpractice refers to the negligence and sub-par practice of a health care provider which causes injury to, or death of, the patient.
Because of laws currently in place protecting military members from being served with legal documents while in service, military divorces can be complicated. For example, there are laws set up to protect active duty military members from failing to respond to a divorce action. These laws protect active military members from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Pennsylvania court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (especially when the active member is serving in a war). A military member can waive the right to having the divorce proceedings postponed if he or she wants the divorce.
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A name change can be obtained by filing a petition with the Court. In cases where an individual is seeking to change the name of a minor without the consent of both parents, a hearing is necessary to determine whether changing the name of the minor is in that child’s best interest.
Orphan’s Court Practice
A division of the Court of Common Pleas in Pennsylvania, the Orphans’ Court oversees the administration of decedents’ estates, the administration and distribution of inter-vivos and testamentary trusts, the actions of Agents operating under Power of Attorneys, it handles matters relating to custodianship and property of minor children, and the supervision of the estates of incapacitated persons. Generally, attorneys have to petition the Orphans’ Court to resolve disputes between fiduciaries (i.e., trustee) and beneficiaries.
Palimony is a concept created by journalists, it is not a legal concept, and it describes the division of property or alimony-like support paid to one partner in an unmarried situation. Individuals in an unmarried committed relationship situation are not legally entitled to such payments unless they have a written agreement (or a court finds there was an oral or implied agreement). A written agreement stating that both partners will remain financially independent is the best defense against a claim for palimony.
Parental Kidnapping is the taking, concealment, or retention of a child by his or her parent in violation of the other parent’s custodial rights. Parental Kidnapping is a criminal act, but is often addressed through the civil courts. Parental Kidnapping can be localized, interstate, or international.
In legal terms, paternity refers to the legal acknowledgement of a man to his child. When a child is born during a marriage, the mother’s husband has the complete rights, duties, and obligations to the child under the presumption of legitimacy (essentially, when a married couple have a child, it is assumed that the husband is also the father). However, the presumption of legitimacy can be lifted with proof that the husband is not the father. Usually this is accomplished by a paternity test. If a child is born to an unwed mother, paternity can be established in several ways. For example, the father can come forward to accept paternity or the mother can petition the court for a determination of paternity.
Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. The term is most commonly used to refer to a type of tort lawsuit alleging that the plaintiff’s injury has been caused by the negligence of another.
Typically, personal injury claims result from traffic accidents, assault, product defects, accidents at work, tripping, or accidents in the home. Personal injury can also include medical and dental accidents, asbestos, mesothelioma, and other diseases.
If it can be proved that the opposing party was negligent, the injured party may be entitled to compensation from the negligent party.
Post Divorce Modification
It is rare in people’s lives to remain the status quo for long. Change is evitable. People’s circumstances change after a divorce decree. In order to have these changes, the terms of a divorce agreement might need to be modified. For example, child custody might be modified on the ‘best interests’ of the children. Child support is also subject to modification based on ‘substantial change’ in circumstances, such as an increase or decrease of income for one or both parties. Even spousal support and APL are subject to modification up until the final divorce decree. However, once the final decree is entered, alimony is usually not subject to modification.
Property Settlement Agreements
Property Settlement Agreements are agreements entered into by the parties in a divorce action with a plan for dividing property, assets, and liabilities between them. Property Settlement Agreements usually address bank accounts, debts, vehicles, and other property so that once the parties are divorced, there is a clear plan for how the parties’ property will be distributed.
The Pennsylvania legislature enacted 23 Pa.C.S. § 3106 in 2004. The requirements of § 3106 provide, that a party seeking to invalidate a premarital agreement has to prove that the party either did not execute the agreement voluntarily, or that prior to execution of the agreement, the party was not provided (i) a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) did not have an adequate knowledge of the property or financial obligations of the other party. 23 Pa.C.S. § 3106.
In other words, if the claimant wants to invalidate a prenuptial agreement, then that party must show that they signed the agreement (1) against their will or (2) they signed it without knowing their future spouse’s full financial situation, (3) that they did not waive their right to the disclosure of their future spouse’s financial situation, (4) or that their future spouse left out important financial elements from the disclosure they did make.
The statute wants the disclosure of information between the parties, but it also refers to the “voluntariness” of the agreement. Typically, a factual analysis as to whether a prenuptial agreement was entered into voluntarily by a party involves references to the proximity of the wedding to the execution of the agreement, ultimatums for signing the agreement from one party to the other, or some other circumstance that the signing party could construe as placing a heightened degree of pressure on them and, thereby, making their execution of the agreement seem less than “voluntary.”
It is extremely difficult, if not impossible to overturn a prenuptial agreement. However, important steps need to be followed in order to ensure that an agreement can withstand a potential trial. It is worth the parties’ time to begin to consider prenuptial agreements at the earliest possible moment. The courts will not step in to be a parent to prevent people from contracting poorly, being absent-minded or otherwise using poor judgment. To make the deal a ‘fair deal’ the parties should agree to consult their separate attorneys as early as possible, they should make full and fair disclosures of their financial positions, and get what can be undoubtedly an uncomfortable part of the marriage process finished as soon as possible. If a person is committed in a loving way to another it can be hoped that he or she would be prepared to make a full disclosure of his/her financial position, and afford the intended spouse the time and resources to have an experienced attorney advise them of the merits of the proposed agreement. If you are engaged to someone who is having second thoughts with making a financial disclosure, or having a review of the agreement by an experienced attorney, you should be weary about the situation. A prenuptial agreement is binding throughout the marriage. The value of the legal rights involved in such an agreement is priceless.
A Qualified Domestic Relations Order, or QDRO, is a legal order following a divorce that splits and changes ownership of a retirement plan to properly divide the parties’ share of the asset or pension plan. QDROs may grant ownership in the participant’s (employee’s) pension plan to an alternate payee, who must be a spouse, former spouse, child or other dependent of the participant. QDROs apply only to employee benefit or pension plans subject to ERISA (the Employee Retirement Income Security Act), the law governing private sector pensions. Comparable types of orders are available to divide military retirement pay and Federal civil service retirement plans, and for State, county and municipal retirement plans in most States. QDROs must first be entered by the State domestic relations court and then reviewed by the plan administrator for compliance with ERISA or other applicable law and the terms of the plan.
A restraining order requires a party to do, or to refrain from doing, certain acts. A party that refuses to comply with an order faces criminal or civil penalties and may have to pay damages or accept sanctions. Breaches of restraining orders can be considered serious criminal offenses that could lead to arrest and possible prison sentences. The term is most commonly used in reference to domestic violence, harassment, stalking or sexual assault. In Pennsylvania, restraining orders like these are known as Protection from Abuse Orders (PFAs). When the person the PFA is filed against breaks the order in any way, the protected party (or parties) can ask the police, the court, or both to enforce the order.
Legal separation is a legal process by which a married couple may formalize separation while remaining legally married. This can be accomplished by the arrangement of a separation agreement. A legal separation is granted in the form of a court order, which usually makes arrangements for the care, custody, and financial support of any children of the marriage during the separation. If the couple decides to reconcile, nothing needs to be done to continue the marriage. However, if a couple who is legally separated does decide to divorce, they must file a divorce action. Because a legal separation does not automatically lead to a divorce, it is sometimes used by couples as an alternative to divorce. Pennsylvania does not recognize legal separation documents.
Slip & Fall
Slip and fall, a category of personal injury, is a claim or case based on a person slipping (or tripping) and falling. It is a tort based on a claim that the property owner was negligent in allowing some dangerous condition to exist that caused the slip or trip. Often, these claims are defended by the property owner claiming he was not negligent or by claiming that the injured party did not take any steps to reduce their injuries (for example, avoiding a slippery floor if it was clearly wet).
Before the final divorce decree is entered, the amount of support paid to a spouse is called spousal support. It is generally not available when both spouses live in the same home unless it can be shown that one spouse is not contributing to regular household expenses. In Pennsylvania, spousal support is calculated by using a percentage of the difference of net incomes or earning capacities of the parties after consideration of other support obligations. According to Pennsylvania law, if the spouse who receives spousal support (a.k.a. the payee) has committed fault-based grounds for divorce, i.e. adultery, the court has the power to decline an award for spousal support. The person paying support’s (a.k.a. the obligor) right to raise the fault grounds is called an entitlement defense to paying the spousal support. In Pennsylvania, there are no time limits for how long that spousal support is payable. Having said that, if the couple has been married for a short period of time prior to the split, the court could limit amount of time of any spousal support (or APL) payments as well as the total monthly payment
Tax Aspects of Pennsylvania Support Orders
Under I.R.C. (the Federal tax code) § 61, it states that if a spouse receives any spousal support, APL, or alimony, that money is treated as income to the recipient. That money paid by the obligor is allowed to be a deduction from income. In addition to the amount for support, if the obligor spouse pays any additional amounts for payment on the mortgage, health insurance, or unreimbursed medical expenses, those payments could also be considered as payments for alimony under federal tax laws. If an individual is paying or receiving support in an unallocated order, it is best to consult with a tax advisor.
The Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA)
The UCCJEA is an act that has been adopted by 49 states and serves to vest jurisdiction of custody matters in a child’s home state in the event that the child is abducted into another state. If a parental kidnapping takes place, and the child is taken out of his or her home state, the UCCJEA is used as a tool to return that child to their home state.
Third Party Custody
Where a third party (a non-parent) has acted in loco parentis of a child, meaning they have assumed the obligations associated with the role of a parent, they may challenge custody of a parent in court.
An uncontested divorce is the term used to describe a divorce in which the parties are able to come to an agreement about the terms of their divorce, including division of property, custody of the children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, the divorce process runs much more smoothly through the court system.
Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them.
In family law, visitation is one of the general terms describing the level of contact a parent or other significant person in a child’s life can have with that child. Visitation is a part of the many rights and privileges which a parent may have in relation to any child of the family.
Workers’ Compensation laws provide compensation and benefits to individuals who are injured as a result of an accident, occupational hazard, or disease while at work. These laws exist to protect workers from losses and injuries sustained as a result of their work environment. These laws also benefit employers, as the employee receives compensation and benefits in exchange for waiving their right to sue the employer.
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