Custody Caselaw Updates

Below are some custody caselaw updates since the passing of the new revised Child Custody Act:

1. T.E.B. v. C.A.B.: This was a case where mother did not inform the biological father that he was the father of her child, which was born during her marriage to another man. Biological father filed a Petition to Intervene in a custody action for this child, which was initially between mother and her husband. His petition to intervene was granted, because mother’s actions caused the delay in the filing of the petition to intervene, and the biological father was not accountable for the delay. 2013 PA Super. 211 (2013).

2. L.A.L. v. V.D.: Grandparents have standing in a custody action where the parents of the child never married. 2013 PA Super. 212 (2013).

3. S.J.S. v. M.J.S.: Request for primary physical custody and relocation denied where under the current circumstances, the children were happy and well-adjusted, they have a strong bond with both parents, and a relocation seven and a half hours away would result in father seeing the children less frequently. 2013 PA Super. 227 (2013).

Posted in Uncategorized | Leave a comment

Pennsylvaia Caselaw Update

1. Divorce: 90-day rule: Reece v.Reece, 2013 Pa. Super. 112 (May 10, 2013): Litigants are eligible to receive a divorce decree as soon as ninety days after service of the divorce complaint, not ninety one days. There is no extra waiting period for issuance of a divorce decree.

2. Child SupportSuzanne D. v. Stephen W., 2013 PA. Super. 92 (April 22, 2013): The Court did not abuse its discretion by considering monies paid by children’s grandparent to children’s father who owed support to be a gift,  even though a demand note was issued for the money and an alleged deduction from father’s inheritance was made. A substantial gift can be cause for deviation from the child support guidelines, and that is what happened in this case. The overriding concern is for the best interest of the children.

3. Child CustodyC.B. v. J.B., 2013 PA. Super. 92 (April 22, 2013): The New Child Custody Act requires that the Court address each factor contained in 23 Pa.C.S. Sec. 5328 before the deadline for filing an appeal to the decision has passed. Additionally, the Court should address these factors on or near the time the custody order is entered.

Posted in Uncategorized | Leave a comment

Unemployment Compensation – Common Misperceptions

Losing your job can be devastating. Often, you may feel there’s nothing you can do to get by financially besides finding another job. You may have heard about ‘Unemployment Compensation’ benefits, but often, until you suffer a job loss, you rarely know whether or not you would be eligible for benefits. There are common misperceptions about these types of benefits, and often, persons who are eligible don’t even try to collect this valuable resource. Below are some, but not all, important facts you need to know about Unemployment Compensation:

1. Even if you’re fired, you may still be able to collect Unemployment Compensation. A common misperception many have about Unemployment Compensation is that if you’re fired, you cannot collect it. This is not always true. For you, the ‘claimant’, to be ineligible for Unemployment Compensation, you need to have committed ‘willful misconduct’ leading to your termination. ‘Willful misconduct’ is typically defined as “an act of wanton or willful disregard of the employer’s interests”, to put it simply. Willful misconduct is not present if you performed your job duties to the best of your ability, and it simply wasn’t good enough for your employer. Additionally, willful misconduct is not present if you made an inadvertent mistake on the job, and that mistake led to your termination. However, willful misconduct generally has occurred if you were intoxicated on the job, or you deliberately violated your employer’s rules, for example.

2. Self-Employment and Unemployment Compensation don’t usually mix. With the rise of new businesses, it is important to know that starting your own business can affect your eligibility for Unemployment Compensation benefits. Generally, you cannot collect Unemployment Compensation benefits during the time you choose to start your own business, and thus become ‘self-employed’. It is also important to understand that ineligibility for Unemployment Compensation benefits doesn’t just begin when you open your doors for business. Rather, becoming self-employed, for purposes of Unemployment Compensation, begins when you commit an act geared toward establishing your business. This act can be as simple as acquiring a business tax identification number, installing a business telephone, or advertising your business.

However, there are usually exceptions to every rule. One exception to the self-employment bar on Unemployment Compensation occurs when you are involved in a ‘sideline business’. Sideline business are defined as businesses you, the ‘claimant’, were engaged in prior to your primary job loss, you continue to operate your ‘sideline business’ as you had before (e.g. you don’t substantially increase your business), you’re still available for a full-time job, and your ‘sideline business’ is not and continues to not be your primary source of income. In other words, let’s assume you sold Avon products for approximately 10 hours per week before you lost your full-time job. You continue to sell Avon products for 10 hours per week after losing your full-time job. In this case, you can still collect Unemployment Compensation benefits regardless of this ‘sideline’ business activity, so long as the circumstances surrounding the loss of your full-time job render you eligible for Unemployment Compensation benefits as well.

3. Even if you quit your job, you may be able to collect Unemployment Compensation. Another misperception people have about Unemployment Compensation benefits is that if you quit your job, you are not eligible to receive Unemployment Compensation benefits without any exception. Although it is more difficult to prove you are entitled to these benefits if you quit, it is certainly not impossible. There are certain situations, if considered ‘necessitous and compelling’, where you can still receive these benefits. For example, if you become seriously ill and cannot perform your job duties specific to your current employment, you can still collect Unemployment Compensation provided you are able to prove your health prevents you from working at that job, your employer wouldn’t accommodate you, and you are still available for other employment. Another example would be if your employment drastically changed your job duties without your consent, by, for example, changing which shift you worked entirely or by dropping your health insurance benefits and drastically reducing your pay.

Given the above circumstances, it is always best to thoroughly consider filing for Unemployment Compensation after a job loss. Receiving these financial benefits when you need them the most can be vital to your economic survival.

This article is not intended to provide legal advice for any specific legal situation. 

Posted in Uncategorized | Leave a comment

Closing on Your House While Single or Divorcing – Common Pitfalls

Due to the housing crisis over the past decade, it’s much more difficult to obtain home ownership for the average American. This difficulty is compounded when a single, divorcing, or single-parent household is attempting to achieve this American Dream. If you are surviving on only one income, or expect to in the near future, financial stability and a good credit score is crucial, especially when you wish to pursue home ownership.

This can seem like an injustice – after all, rent can be high in the State College area, and often families are better off owning a home and paying a mortgage than making rent payments which can frequently match or exceed a monthly mortgage payment. However, tightened regulations are in place, and there’s little you or I can do about it.

The number of issues a single or divorcing individual can run into when trying to obtain mortgage financing are too numerous to mention in one article. However, I would like to highlight common issues these people face when trying to obtain home ownership:

Child Support: Can you use child support as income to qualify for a loan? The answer is yes – and no. Generally, if you are collecting child support, you will need to convince your bank that this is a source of stable income you have received for a considerable length of time, and that you will continue to receive it in the future.

If your children are ages 16 and 17, and you receive child support for them, there is a good chance you will not be able to use all, or even any, of your child support as income to qualify for a loan. This is because due to the ages of your children, child support will likely end soon.

If your child support amount continuously changes, due to the filing of petitions to modify by either party, it can be difficult for your bank to ascertain exactly how much child support should be counted as your income, since the amount never remains steady.

Job Security: Do you switch from job to job? This is another factor which can make it difficult to obtain a mortgage. Often, a parent may have stayed at home with young children before separating from his/her children’s other parent, and have only newly acquired employment. Or, as is often the case, a person going through a separation from their spouse must obtain higher-paying employment (if possible) or employment with a more flexible schedule, and thus switch their employment.

Banks want to be assured that you will be continuously tied to a reliable source of income, so there is less chance that you will default on your loan. Holding the same job for a couple of years can make the difference between qualifying for a loan or not. Bouts of unemployment here and there, even if you are still able to pay your bills on time, can be fatal to your loan process.

Credit Score: Maintaining a good credit score throughout your mortgage process is crucial. Not only will you need to have a good enough credit score to qualify for a loan, but you will also need to maintain good credit up until the day of closing. Banks can and will pull your credit report again immediately before you are scheduled to close on your loan. Here are a few tips to maintaining a good credit score:

Avoid purchasing any big-ticket items before you close on your house. If you, for example, purchase a washer and dryer on your credit card, even if you do so after you have a commitment letter from your bank, this major purchase will appear on your credit report as a much higher balance on your credit card. This will make your bank extremely wary, and could result in a delay or even a cancellation of your loan. It is always best to hold off on any major purchases before your close on your house, to be safe.

Avoid opening any new credit accounts, or having your credit report pulled, before closing on your house. Opening new credit or having a potential creditor pull your credit report will cause your bank concern. They will see this as an attempt to expand your debt, which could make it difficult for you to pay your mortgage. Waiting until after closing to have another creditor pull your credit, and waiting open any new credit accounts, is the wisest course of action.

Do not allow your credit card balance to become higher before closing on your house. In my opinion, it is always best to have balances on your credit cards stay under 30% of your total available balance. Under 16% is optimal.

Also be aware that the monthly payment you are obligated to make on your credit card, along with other monthly payments, is counted toward your ‘debt to income ratio’ – a ratio calculated by determining the amount of your total debt as compared to your total amount of income. Your debt to income ratio cannot exceed a certain percentage of your income in order to qualify for your loan. That percentage depends on the type of loan you are attempting to qualify for. Thus, if you are dangerously close to the highest possible ‘debt to income ratio’ you can have to qualify for your loan, and your monthly credit card payment increases from $15.00/month to $60.00/month before closing, this could greatly affect your ‘debt to income ratio’, and could prevent you from obtaining financing.

Outstanding Divorce Issues: Are you currently going through a divorce? Are you thinking about filing for divorce? Be careful. Banks can and will find out if a divorce has been filed, and can also find out if your divorce has been resolved or not.
If a divorce has been filed, but hasn’t been resolved, you may want to consider settling it if possible. With an outstanding divorce filed, banks cannot be sure whether or not you will be financially drained through a marital settlement or further litigation in your divorce. Having your divorce settled will ease their concerns that you will not, for example, be ordered to pay your spouse $750.00/month in alimony for the next ten years. Such an instance would clearly affect your ability to pay your mortgage.

Sometimes, a spouse will become separated from their partner but will wait to file for a divorce, perhaps for financially strategic reasons, or perhaps simply due to procrastination. Filing for divorce before closing on your loan could have a detrimental impact on your ability to obtain the loan. However, every person’s situation is unique, and running your particular situation by a qualified professional is probably necessary in this situation.

In conclusion, if you are single, separating, divorcing, or a single parent, and you are trying to own a home, be careful. Home ownership can be a dream come true, but can quickly turn into a nightmare if not done correctly.

This article is not intended to provide legal advice for any specific legal situation.

Posted in Uncategorized | Tagged , , , , | Leave a comment

Helpful Tips for Tenants

Entering into a lease can be a great opportunity for tenants in the Centre County and surrounding areas.  After all, students typically don’t stay in the area for more than a few years, and in today’s economy, it is not possible for many people to purchase a house. However, it is important that all tenants understand their lease before signing it, as once a lease is signed, the tenant is bound by its written terms.

Below, I would like to describe the ‘Top 5’ provisions of a written lease that I frequently see cause tenants the most trouble:

  1. ‘Joint and Several’ Leases – It is important to understand that leases are typically ‘Joint and Several’. This means that if there is more than one Tenant, any Tenant can be held liable for any type of damages or unpaid rent associated with the written lease. Thus, before entering into a lease agreement, it is important that the Tenant feels his or her co-Tenants are trustworthy. It can be very difficult for a Tenant to understand why he or she is being sued for unpaid rent, when it was the other Tenant who shirked his obligations under the lease.
  2. ‘Acceleration Clauses’ – In some written leases, there is a provision called an ‘acceleration clause’. An acceleration clause is basically a clause stating that if a Tenant moves out before the end of their lease term, the amount of rent due for the entire lease term is immediately due. For example, let’s say Tenant A signs a written lease where rent is $1,000.00 each month, and the lease is in effect from July 1, 2012 – July 1, 2013. Tenant A decides to go overseas for a semester and moves out December 31, 2012. Let’s also presume that Tenant A made timely rental payments. If Tenant A’s lease has an ‘acceleration clause’, then Tenant A will immediately owe the Landlord $6,000.00 after Tenant A moves out, because that is the remaining amount of rent due under Tenant A’s lease.
  3. ‘Co-signors’ on a Lease – Often, Landlords will ask that their Tenants have a ‘co-signor’ on the lease. A co-signor is someone who assumes equal liability for the lease, even though he is not named as a Tenant. For students at Penn State, the co-signor often ends up being a parent of the student.  The purpose of having a co-signor is to provide the Landlord a ‘guarantee’ that the rent, and any damages to the unit, will be paid by a financially responsible person. Co-signors need to be aware that by signing the lease, they bind themselves to the provisions of the lease as if they were a Tenant. This means the co-signor can be sued for damages as well as any unpaid rent or other fees for which the tenant is liable.
  4. ‘Damages’ at the end of the Lease – I have seen many tenants seek legal advice at the end of their lease term regarding ‘damages’ to the rental unit. Often, tenants are very surprised that, for example, all of their carpet has been replaced at their expense, or that the landlord claims the tenant damaged parts of the rental unit the tenant states were already damaged at move-in. One of the first questions I ask is – ‘Did you inspect the rental unit before moving in? Did your landlord provide you with any type of ‘move in’ report you could fill out and return to them, prior to moving in? Unfortunately, many tenants state they never filled anything out about the condition of the rental unit prior to moving in, even if that option was offered to them by the landlord. It is vital that tenants remember to inspect the rental unit before move-in, as it will be very difficult for the tenant to prove he or she didn’t cause the damages without it.
  5. Roommate disputes –Tenants will often decide to enter into a lease with another tenant he or she does not know very well. This holds especially true in a college town such as State College, where students are often from different cities or states. Unfortunately, mainly because of personality differences, these types of situations don’t always work out. Sometimes it becomes so unbearable for a tenant that the tenant moves out before the end of their lease term. This can cause a difficult situation for both the tenant who leaves and the remaining tenant. Since the lease is most likely ‘joint and several’, both tenants are still liable for the rent and any damages, even though one tenant has moved out. The remaining tenant may not be able to afford rent alone, and the tenant who left may not care to keep on paying the rent. Conversely, the tenant who left may want the remaining tenant to keep up on the rent so that he or she is not sued or suffers a negative consequence on their credit report, but the remaining tenant cannot afford the full amount of rent alone.

                It is important for a tenant to understand that in most circumstances, a landlord is not obligated to replace a roommate, or let one tenant out of a lease, simply because the two tenants do not get along. It is important to choose your co-tenant carefully and wisely, so that you do not end up in this type of situation.

                However, if you do end up in this type of situation, it is still important to discuss it with your landlord as soon as the situation arises. Sometimes a landlord will allow you to try and find a ‘replacement tenant’; basically, another tenant who is willing to take over your obligations under the lease, and therefore release you from further obligations under your lease, allowing you to move out.

Please note that the above list is not meant to be exhaustive of potential problems a tenant may face with their landlord/tenant situation. It is only meant to highlight common areas of dispute that I have seen during as a landlord/tenant attorney. 

Posted in Uncategorized | Leave a comment

Custody Agreements – Common Issues to Consider

After separation or divorce, it can be difficult for parents to come up with a child custody arrangement they both agree on. If you can manage to come to some sort of an agreement, consider yourself lucky – custody conferences and hearings can be emotionally trying for the parents, children, and other family members who are involved. If you are creating a custody Court Order with the help of your co-parent, with or without an attorney, here is a ‘top ten’ list of factors I think you should consider:

Physical Custody: Deciding physical custody answers the question of where your children will physically be residing. Do you prefer to have your children on certain days of the week over others? Will one parent have the majority of overnights with the children, or do you both prefer a 50/50 arrangement for overnights? Answering these questions will assist you in making a specific agreement of who your children will be residing with at certain days and times.

Summer Schedule: When your children are out of school, this could be a prime opportunity for a parent with less custody during the school year to have more time with their children. An example of this would be to share physical custody of the children during the summer. Or, you could even switch custody of the children during the summer, so that the children primarily reside with the parent typically out of physical custody, and the other parent has partial custody periods during this time.

Vacations and Holidays: Many families like to plan family vacations or reunions during specific times of the year. You can plan for those in your custody order, either by having physical custody of certain dates which are important to you, or by reserving for yourself the opportunity to have vacation time with your children. One of the common disagreements among parents can be whether or not the non-vacationing parent was given enough notice of the vacation, and whether or not the non-vacationing parent was given enough information about the vacation to feel comfortable with it. Dealing with these issues in an agreement can put both parents’ minds at ease.

It is also important to consider a holiday schedule for your children. Do you have a Christmas tradition that you would like to continue with your children after your separation? Is Halloween or Thanksgiving important to you? Do your children receive a Christmas Break or Spring Break from school? Consider these issues carefully when you enter into a custody agreement.

Supervised Partial Custody: Unfortunately, sometimes parents have a severe mental or physical handicap, alcohol or drug addiction, deplorable living conditions, or reside with someone that has a concerning criminal record. In those cases (and others too limitless to mention), it is possible to ask that a parent’s time with their children be supervised. If you both agree that a certain person can supervise visits, you can ask that a parent’s time is supervised by that individual. In some limited cases, it is also possible to have Centre County Children and Youth Services, or another agency, supervise visits between the parent and children. However, you routinely need a specific Order of Court allowing that type of supervision. Being as flexible as possible with supervision provisions can provide ease to a potentially bad situation.

Concerns over Certain Family Members: Do you have concerns over family members or friends of your co-parent? If so, you can always ask that those specific individuals not be permitted around your children while they are with the other parent. You can also ask that neither parent shall be under the influence of drugs or alcohol, nor shall he or she permit others in the children’s presence to be under the influence of drugs or alcohol.

Long-Distance Parents: Sometimes it is not possible for parents to live in the same county, or even in the same state, as each other. In this type of situation, one parent has to have primary physical custody of the children while the non-custodial parent has partial custody rights. Depending on the age of the children, it’s possible to have one parent enjoy custody of the children during most of the child’s summer and vacations, while the other parent enjoys custody of the children during the children’s school year. Another possibility for parents who live within a few hours’ drive of each other is to have the ‘partial custody’ parent enjoy extended weekends with the children, such as when the children have in-service days from school or other days off from school resulting from scheduled ‘snow days’ which were never used.

Telephone Contact: It is frustrating for a parent without physical custody of their children to call their kids and never be able to speak to them on the phone. If this is an issue for you, it is possible to have your custody Order cover this issue, such as by specifically designating dates and times for phone calls with the children.  In addition, with the invention of Skype, it can be possible for a parent to have a ‘video chat’ with their children, which is an excellent way to keep in touch, especially for long-distance parents. Another idea would be to buy a child his or her own cell phone so that the child has direct and immediate access to phone contact with the out-of-custody parent.

Transportation: In my experience, both parents typically share transportation in some form. Sometimes, parents meet halfway between their residences, and sometimes the parent out of custody is responsible for their own leg of transportation. However, if one parent doesn’t have regular access to transportation, or has an unreliable vehicle, making alternative arrangements in your order can be helpful. One idea is to ask that the parent providing all of the transportation be reimbursed gas mileage. Another idea would be to ask that one parent provide all of the transportation for six months, while the other parent contributes to the transportation in whatever way possible after that time. This may allow the parent with less reliable transportation to obtain access to transportation without the worry of never being able to pick up their children for custodial periods.

Child Care: Do both parents agree on child care arrangements for their children? Does one parent want to have the right to watch their children if the other parent is unavailable? Sometimes, parents will insert a ‘right of first refusal’ clause into their custody agreements, so that if one parent is unavailable, as an example, for a period exceeding three hours, he or she must call the other parent to ask if they are available for child care. It also may be helpful to have the child care agreed upon by the parents written into their agreement, so that both parents are on the same page regarding child care.

Flexibility: It is always important to remember that just because you have a Court Order stating specific custodial periods for each parent, this does not need to strictly be adhered to. This is because if both parents want to make other arrangements for their children, they can. The best custody arrangements, in my experience, seem to be the ones where parents can be flexible with custody to meet the needs of themselves, the other parent, and their children.

This article is not intended to provide legal advice for any specific legal problem. 

Posted in Uncategorized | Leave a comment

The Do-It-Yourself Divorce: Common Issues

Nearly anyone facing a Divorce considers the financial implications of such a move. For example, “how much will the Divorce cost”, “how much property will I lose” are common questions future divorcees ask. Therefore, it’s understandable that advertisements claiming you can be divorced for as little as $400.00, or even $150, are appealing. Sometimes, even the Courthouse will offer do-it-yourself Divorce documents that are easily understandable to the average layperson.

However, although these types of divorces may be cheap, they can cost you in the long run if you’re not careful. As an example, before rushing into the ‘Do-It-Yourself Divorce’, make sure you ask yourself these questions:

  1. MARITAL PROPERTY: Do you know what the definition of marital property is? Do you have marital assets that need to be distributed? If there’s money or property at stake, you may want to seek advice from a qualified professional. You need to know and understand tax and other economic implications of neglecting to adequately cover these issues in your divorce. If you fail to take into account marital property before your Divorce is finalized, you may end up losing important assets.
    1. Additionally, don’t forget about marital debt. For example, just because credit card debt is in only one spouse’s name doesn’t mean it’s not marital debt. Be careful and make sure you get a fair settlement on all marital debt.
    2. CHILDREN: Are you attempting to resolve custody issues in your Divorce action? Make sure you anticipate things such as holidays, birthdays, vacations, summers, and other holidays that are important to you. If you do not cover these issues and a disagreement arises between you and your child’s other parent, this can be difficult, and costly, to correct.
    3. NEGOTIATION: Is your future ex-spouse a manipulative, abusive, or unfair person? If so, you may get the short end of the stick if you decide to ‘go it alone’ and do your own divorce. Once you give up rights, you could lose significant assets, and potentially custodial rights to your children, once you are divorced.

Although the above questions are important, they are not exhaustive of the legal issues divorcing spouses face. Make sure you take into account all of your issues when you are going through a Divorce.

This article is not intended to provide legal advice for any specific legal problem.

Posted in Uncategorized | Leave a comment