The best source to answer these questions is the Retirement Planner provided online by the Social Security administration. The Planner states that "if you are divorced, but your marriage lasted 10 years or longer, you can receive benefits on your ex-spouse's record if:
1. You are unmarried
2. You are age 62 or older
3. Your ex-spouse is entitled to Social Security retirement or disability benefits, and
4. The benefits you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouses work.
The Planner goes on to state that if you remarry, you generally cannot collect benefits on your former spouse's record unless your later marriage ends (whether by death, divorce or annulment).
What if your ex has not applied, but is eligible? You can receive benefits on his or her record if you have been divorced for at least two years.
Now, if Ms. Divorce' is eligible for retirement benefits on her own record, the Administration will pay the amount she is eligible first. However, if the benefit on her ex-spouse's record is a higher amount, she will get a combination of benefits that equals that higher amount. (reduced for age). If Ms. Divorce' has reached full retirement age and she is eligible for the ex spouse's benefits and her own benefits, she has a choice.
She can choose to just receive the ex spouse's benefit now and delay receiving her own benefits to a later date. So why delay? Because if benefits are delayed, a higher benefit may be received at a later date based on the effect of delayed retirement credits. That's right-the government will pay you more if you delay your payments.
]]>When the landowner whose airspace is being offended has sustained actual substantial damages, he may (1) resort to cutting the branches or (2) bring suit for damages or (3) maintain an action for abatement of the nuisance (i.e. the hanging branches) and file for injunctive relief which would require removal of the branches.
]]>As a Pittsburgh attorney, I can help you in following the necessary steps for the probate process:
1. Acknowledgement of a Personal Representative- in this part of the process the Executor or Administrator of the estate is determined.
2. Determining and Locating Assets- This is the initial stage in securing and valuing the decedent's assets.
3. Determining Creditors- Creditors with liens or claims should be paid before any other distributions except administrative expenses.
4. Ascertaining the Values of Assets at Death- This will ultimately determine the tax obligation
5. Publishing Notice- This is to allow any potential creditors to make a claim.
6. Pay Outstanding Bills- Generally, every estate has some outstanding bills at the decedent's death.
7. Filing the tax returns- Final income tax and inheritance tax returns must be filed.
8. Paying the Taxes- This is a priority before distribution to heirs.
9. Final Distribution- The final distribution of the remaining assets are distributed in accordance with the will.
]]>If you are older and you want to make sure that you determine who gets your assets after death, you must contact an attorney that does wills & estates to prepare a will or the state will allocate your assets after you die pursuant to a statute, regardless of your verbal wishes before death.
Dying without a will is known as dying "intestate". Pennsylvania has its own intestate statute which determines the after death distribution of assets.
It is really important that you have a will if you are a young parent because the will is generally used to determine the subsequent guardianship of your children. Without a will, the courts will decide who will be the guardians and it may not be what you would have chosen if you had a will.
Another important aspect of a will for young or older parents is the use of a trust. If you have young children, you certainly do not want them to have unfettered control over your estate, so you would form a trust within the will. In the trust, you get to describe who manages the trust (i.e., the "trustee") and, most importantly, how the assets will be distributed. For example, you might not want a child to receive a significant portion of the trust until they are thirty (30) years old or older. This can be outlined in the trust.
Even if you have older children, a trust might be helpful. Let's face it, with a 50% divorce rate, sometimes you might want to keep the assets away from your children's spouses. A trust is one way of accomplishing that goal as funds in trust are not part of the marital estate.
Believe me, there are numerous reasons to have a will and it does not take much time with the attorney to draft one. Feel free to call me, a Pittsburgh attorney, for a free initial consultation. It will be worth the peace of mind you will gain.
What is a Durable Power of Attorney?
A durable power of attorney (DPA) is a document, in the form of a power of attorney, by which an individual (the "principal") designates another person (the" agent") to exercise certain powers for the principal in the case the principal is disabled or incapacitated and cannot act on their own. The document generally states that said power given to the agent becomes effective at a specific future time or occurrence of a specific event. If should be noted that all acts performed by the agent under the DPA have the exact same affect as if performed by the principal.
Durable powers of attorney are generally used by elder children whose parents are in their golden ages. It is a great management tool for the family in case of illness.
Feel free to call for further discussion or for the need and uses of a durable power of attorney.
Living Will
A living will is a legal document by which individuals, who are patients of a health care provider, give advance medical directives to the health care providers as to medical procedures in case certain conditions occur (i.e., debilitating illness or incapacity) that would not allow the patient to make immediate decisions regarding his or her own care. The advance directive can be very general or very narrow. Many of the directives relate to whether or not you would want your family to continue life support machines or the administration of certain drugs.
The living will is a great planning tool for adults of any age. Feel free to contact me with any questions.
]]>Pennsylvania family law, treats the giving of an engagement ring as a conditional gift. A conditional gift is one that is given in contemplation of an event - marriage in this case. Conditional gifts only become the absolute property of the person receiving the gift if the event takes place. The mere acceptance of the marriage proposal is not the implied condition of the gift; so, if the individual accepts the ring, the person giving the gift is entitled to the return of the ring or its equal monetary value if the marriage does not take place. This is true even if the person giving the ring breaks the engagement. So, I told the young man to go ahead and buy the ring, to get down on his knee, and propose (preferably in front of as many people as possible.)
]]>The divorce lawyer must also look at the other side of the balance sheet to determine the marital liabilities. These are liabilities that the parties incur during the marriage and increases in liabilities for those debts brought into the marriage, but before separation.
The first task a Pennsylvania divorcee faces is to determine what assets make up the estate. This is done by interviewing the potential client to determine some very important dates and other information. First, what date were the couples married and what assets and their respective values did each individual bring into the marriage and what assets and respective values were acquired during the marriage? The divorce attorney must then answer the same questions regarding the divorcing couple's liabilities.
Once the marital assets and liabilities are determined the, the attorney will look at the total net assets and determine how the marital estate should be allocated. The problem with Pennsylvania divorce law is that there is no set formula as to how to divide the assets. Instead, Pennsylvania family law allows the Court in its discretion to divide the assets as it sees "equitable". The following factors are looked at by the Court in making their decision.
· The length of the marriage.
· Any prior marriage of either party.
· The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
· The contribution by one party to the education, training or increased earning power of the other party.
· The opportunity of each party for future acquisitions of capital assets and income.
· The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
· The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
· The value of the property set apart to each party.
· The standard of living of the parties established during the marriage.
· The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
· Whether the party will be serving as the custodian of any dependent minor children.
The Court's truly evaluate these factors in each individual case.
]]>So what was the problem? Well, three months after the separation, the Wife decided to quit paying the mortgage. That's right-zippo! Not one penny of the $3200 a month mortgage was paid. And, get this-she made $100,000 a year in income. She then proceeded to make every move possible to delay the foreclosure process. She procrastinated and successfully delayed the process for over three (3) full years-$115,200 of mortgage payments- never paid. How about this-the bank still has not foreclosed. Sounds pretty good for her, huh-well no! The Wife's day of reckoning finally came at the equitable distribution trial.
My attorney friend said that the Wife was quite cavalier about the whole thing at trial. She acted offended when asked what her "end game was", I mean, what she was going to do when the bank finally foreclosed. When asked by the Judge what the Husband should receive, if anything, as she lived in the marital residence virtually free for three years, ruining the Husband's credit and eliminating any chance of there being equity in the house-she said "He shouldn't get anything."
The problem with the Wife's reasoning is this... in Pennsylvania, a credit may be allowed for the fair rental value to the spouse who does not have the use and occupancy of the real estate during the separation. Of course, credits can also be given for payment of the mortgage-thus offsetting each credit, but she did not pay a dime! In reviewing the totality of the situation, the Court concluded that it would be inequitable to allow the Wife to live in the residence for three years without paying the mortgage and not give the Husband a credit for ½ of the rental value of the residence. She now owes the Husband over $70, 000. In this particular situation, the Pennsylvania equitable distribution process was, just that, equitable!
]]>So the question is-although we might not keep the man out of hell-can I keep him out of jail? Can a Pennsylvania Driver with a high blood alcohol level avoid being put behind bars? The answer is -possibly yes. If Mr. Stevens has not yet used his ability to obtain Advanced Rehabilitative Disposition , otherwise known as ARD, he might not have to go to jail.
The Pennsylvania Code relating to drunk driving specifically outlines the procedural framework for utilization of the ARD program. As the Code states:
"The program is intended to encourage offenders to make a fresh start after participation in a rehabilitative
program and offers them the possibility of a clean record if they successfully complete the program"
That's right! Not only can you stay out of Jail, but you can avoid the one year suspension of license, avoid a criminal conviction and expunge your record after successfully completing the ARD program.
First, you must qualify. Although there are various criteria that are readily attainable by most people, the foremost criterion is that you have not utilized the ARD program in the last ten years. You must take certain classes, pay a fine and have your license suspended for a period of time. The length of suspension is dependent upon your blood alcohol reading. By the way, Mr. Stevens is in for a long one. I am sure it will feel like hell.
Source:TribLive Article dated 2/4/2012 by Paul Pierce "Herminie Man who Hit Church was DUI"
]]>Alimony Pendente Lite (APL), or alimony "pending litigation", is a form of spousal support that is payable while the divorce is pending. The purpose of APL is to provide the dependant spouse with income to prosecute and defend the action. APL is temporary in nature in that it terminates upon the granting of the divorce decree. APL is available irrespective of marital fault.
The Pennsylvania Divorce also authorizes post divorce alimony if the party seeking the award lacks sufficient funds and property to meet his or her needs and is unable to be self-supporting through employment or other means. The statute states that the purpose of alimony is to effect economic justice; however, the statute also states that alimony is a secondary remedy that should only be awarded if "economic justice" can not be achieved through the equitable distribution process.
In determining whether to grant alimony and how much, the Courts look at seventeen factors:
(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 considered by 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.
After determining whether or not alimony is reasonable and necessary, the Court will determine the amount and duration.
]]>First of all, you have two people who presumably once loved one another, who now really do not like each other. Hate might be a strong word, but the truth of the matter is that most of time the ex spouses truly hate each other. And, we all know that nothing good comes from hate.
Divorces destroy the family unit. Children are inextricably affected by the process, regardless of the age of the children. Custody fights, entailing custody hearing after custody hearing, do nothing more than further the divide between the ex spouses and possibly alienate the children from one of the spouses.
If couple can not come to a custody agreement, the Court will ultimately decide how much time a child spends with each parent. Although, the Courts attempt very hard to be fair, the Court telling you how much time you will spend with your child in a given week can sometimes be very hard to accept.
Secondly, the household generally goes from being a combined two income family unit from which the single monthly living expenses are paid, to two separate family units, each now having ½ the income and double the living expenses with each spouse having their own household. This economic dynamic usually presents a tremendous financial burden for both sides resulting in more pressure and tension between the parties.
I just read recently that a study has found that divorce couples do not live as long because of health issues that come about because of the divorce. Such illnesses as hyper tension, high blood pressure and depression are just a few of the afflictions that are customarily a result of a heated divorce.
No-divorces are no fun, but if you are going through a divorce or are contemplating a divorce, I can only leave you with a quote from Mr. Miyagi, in the movie-"The Next Karate Kid"-
"Fighting not good. But, if must fight, win."
]]>Let's start with this-success, in anything, is a function of one's expectations. For example, if you are the Pittsburgh Steelers, no season is a success unless you win the Super Bowl because their expectations and their fans' expectations start so high. The same can be said about the New York Yankees. Other teams, who have had a horrible history of success, would be ecstatic to even reach the Super Bowl or the Worlds Series. The Steelers and Yankees, on the other hand, had a horrible season if they do not win it all.
Success, or "winning" in a divorce case, much like sports, is based on your client's expectations. Accordingly, as an experienced Pennsylvania divorce attorney, one of the very first things I do is lay out the realistic parameters of success in each case. Some cases reek of opportunity. The stay at home spouse has been given about $200 dollars a month throughout the 30 year marriage and the CEO husband told her that she'll get "nothing" in the divorce. She comes into me and her expectations are woefully low. In these cases, even the most conservative evaluation nets more than she ever expected. But, in the case of the client that comes in and says "I just want 80% of the assets, all of his pension and alimony until I die", well, this client is going to be disappointed. The Courts do really try to be "equitable" in equitable distribution. Accordingly, their decisions, generally, are never just one sided-benefitting one individual more than another-even though it might feel that way.
As a practical matter, you want a Pittsburgh divorce attorney that is going be truthful to you from the very beginning of the process. Winning is a relative concept in divorces. With the right mind frame-an otherwise intolerable decision, might just be acceptable-which allows you to move peaceably on with your life.
]]>The first thing I do in child support, Pennsylvania divorce, alimony or custody cases is determine the relative strengths and weaknesses of the case. This will determine my leverage. Leverage is always a function of the overall facts and how Pennsylvania divorce laws apply to those facts. I also look at the venue I am in - for example, am I in Allegheny County, or Westmorland County, Armstrong County or Washington County. These facts definitely play a part in my decision making.
After assessing my chances of "winning" the case, I will outline the cost benefit analysis to my clients - this is our chance of winning and this is what it will cost to litigate. In the case of equitable distribution, child support, alimony or alimony pendent elite, this cost-benefit analysis is highly quantifiable. Of course, in the case of child custody, the benefit is less quantifiable, so the "chance of winning" or attaining what you desire plays a huge role in the ultimate determination.
As regards to going to Court hurting your chances of settlement, I do not totally agree. Granted, going to Court is the ultimate risk, but opposing counsel knows that too. So, sometimes, the threat of going to Court, and going to Court, can actually aid in the negotiating process.
In essence, each case has to be individually evaluated. The probability of success has to be assessed (I use my old Carnegie Mellon business school background here) and then the cost benefit analysis has to be determined. Sounds easy-right? Well-then you have to get your client to take the emotion out of it. Believe it or not, when you objectively lay out your analysis to your client-most go along with your professional recommendation.
Source Huffington Post.com, "WHAT DO DIVORCE LAWYERS DO IN THEIR OWN DIVORCES", J. Richard Kulerski and Kari Cornelison, February 6, 2012.
]]>But attorneys are also noticing other social media behaviors that may have an impact on family law proceedings. Namely, angry individuals are getting themselves into trouble for publicly badmouthing their estranged or ex-spouse on Facebook.
]]> In one recent case from Ohio, a man angrily posted his opinions about his estranged wife and details about their divorce and child custody situation that he considered to be unfair. She had previously been granted a civil protective order that required him to stay away from her.He posted that this was a plot to keep him from seeing their young son, and he accused his wife of being a "vindictive woman who wants to ruin [her] husband's life."
The woman learned of the Facebook posting and felt that it violated certain terms of the protective order. A judge agreed and held the husband in contempt of court. The judge then issued an ultimatum: he could either spend 60 days in jail, or pay his wife's lawyers' fees and back child support as well as post an apology on Facebook that must stay up for 30 days.
He chose the apology.
This controversial ruling has raised serious concerns among members of the legal community and civil-rights advocacy groups. An attorney and free-speech expert commented on the case, saying: "The idea that a court can say, 'I order you not to post something or to post something' seems to me to be a First Amendment issue."
The internet and social media have given the average person a much wider platform to express their personal opinions. But is badmouthing an estranged or ex-spouse on Facebook fundamentally different than doing so verbally to friends and family?
Should courts be allowed to limit free speech during potentially volatile family law cases? These are difficult questions which may be debated - legally and morally - for years to come.
Source: USA Today, "Ex-husband gets choice of jail or a Facebook apology," Kimball Perry, Feb. 23, 2012
]]>One issue that it is important to be in communication about is what responsibilities and routines your teenager has in each household. For example, let's say that one household insists that the teen completes all homework before being allowed out with friends and one household allows him or her to complete homework whenever it is convenient.
]]> Neither of these policies is necessarily right or wrong. However, if the reasons for these policies are not communicated to both parents and the teen, conflict and confusion over expectations can arise.Another potential source of conflict which can be greatly diffused by communication involves transportation. Teen drivers are at a higher risk of vehicle accidents due to their inexperience. Thus, it is very important for both parents to communicate their expectations for the "what, when, who, where" questions regarding teen transportation.
It is not necessary for parents to agree on everything or for both houses to function in the same ways. What is important is that the teen knows what to expect and that tension and conflict between parents is kept to a minimum for everyone's benefit.
It is critical that parents not bribe or otherwise unfairly influence their teens in the hopes that they will stay with them more often or take their "side" against the other parent. When it comes to issues of routine, self-expression, transportation, etc., the goals should be the best interest of the teen and the peaceful functioning of both households. It should go without saying, but sometimes it bears repeating: co-parenting a teenager is not a popularity contest.
Source: Huffington Post, "7 Tips For Co-parenting Teens," Tara Fass, Feb. 21, 2012
]]>Regardless of what your child custody and visitation arrangements look like, it is extremely beneficial to make sure that you and your teen's other parent are on the same page regarding several issues. This proactive communication will allow more consistency and (hopefully) more peace for all members of both households, your teen included.
]]> First, it is important to understand that teens have a very particular kind of attachment to their possessions. They often derive senses of security, comfort and even identity from certain objects. Communication and media devices such as cell phones, iPods and laptops may be particularly important to teens, who tend to crave both social outlets and forms of expression. Articles of clothing may also bear special significance.As a result, it is important that teens be allowed to transfer these kinds of personal items back and forth between houses, or keep them in a particular place, as they see fit. This policy will allow your teen to maintain a sense of security, ownership and control over his or her belongings. If you must address the other parent regarding an issue involving a personal item, do it out of your teen's earshot.
Next, consider and proactively communicate about policies regarding your child's potential desires for piercings, tattoos, hair coloring, etc. Teens often want to express themselves in unique ways. It is important to make sure that both parents are on the same page regarding these issues, in order to avoid conflict overall.
Check back in later this week, as we discuss more proactive solutions for co-parenting your teenager.
Source: Huffington Post, "7 Tips For Co-parenting Teens," Tara Fass, Feb. 21, 2012
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