The latest troubles started when Pilar was arrested and booked for assault last month concerning an altercation in the family home. That led to the wife and mother being banned form the residence for two months. Now Pilar is pursuing counter charges against Deion, alleging that he smashed a cellphone of her friend during the altercation. Further, she alleges that the cellphone contained important evidence against Deion for use in the pending divorce proceeding. She is pressing for him to be arrested on a purported criminal mischief charge for destroying evidence.
]]> On May 3, both Deion and his wife made an appearance in court for a hearing on mutual protective orders. While it remains to be seen how these issues will play out in Texas, they are suggestive of the sort of "he said, she said" marital disputes that sometimes find their way into Pennsylvania courtrooms. During the court proceedings, both husband and wife attempted to paint one another as unfit, perhaps in the hope that the allegations would help in any child custody determination. But the legal guardian for the couple's kids noted the children are doing poorly in school and need professional counseling, saying that the living arrangements were characterized as a war zone.Divorce is never easy, and a contested divorce often provokes the worst response in competing parties. But when children are involved, it is helpful to keep an eye on their emotional well-being as the litigation progresses. Sometimes winning a battle can mean losing the war, and hopefully the Sanders will be able to reach a settlement that protects their individual interests while placing the best interests of their children at the head of the list.
Source: myFOXdfw.com, "Divorce, drama continue for Sanders family," Alice Wolke, May 3, 2012
]]>By Cynthia Bashore, Esquire, Attorney, www.mbfamilylaw.com
In Goodemote v. Goodemote, 2012 Pa Super 24, the Court held, in divorce, that the increase in value of Husband's investment account, funded by his pre-marital deposits of his federal veteran's disability benefit payments, is marital property, subject to equitable distribution. Husband had never withdrawn any funds from his pre-marital investment account, and he never used those funds for his support and maintenance. As of the date of marriage, the value of the investment account was $74,374. Although no post-marital contributions were made to the account, when the parties separated 16 years later, the value was $158,932, an increase in value of $84,557.
In this case of first impression, the Court addressed the United States Supreme Court's decision in Porter v. Aetna Casualty & Surety Co., 370 U.S. 159 (1962). In that case, the guardian of an incompetent veteran deposited a portion of the veteran's disability payments into a savings and loan account, and a creditor thereafter sought to attach those funds to satisfy a judgment. The Supreme Court held that the veteran's disability payments retained their exempt status under 38 USCA ยง5301 even after being deposited into a federal savings and loan account. The Court reasoned that Congress intended that veterans, in the safekeeping of their benefits, should be able to utilize those "normal modes adopted by the community for that purpose," provided that the benefit funds (1) are readily available as needed for support and maintenance, (2) actually retain the qualities of moneys, and (3) have not been converted into permanent investments. To determine whether the benefits had been "converted into permanent investments," the Court applied a 3-prong test: (1) whether the funds were "of a speculative character"; (2) whether the veteran used the moneys from the savings and loan fund for his support and maintenance requirements; and (3) whether other funds were then available to him, his disability payments having been cut off.
In the instant case, the Court ruled that the increase in value of Husband's veteran's benefits were marital property subject to equitable distribution because Husband failed to meet the third prong of the Porter test, as he had converted the VA payments he deposited in the investment account into permanent investments. Moreover, Husband's VA payments were not his only means of support, he never withdrew any funds from the investment account, nor did he use the funds for his maintenance and support. Therefore, Husband's VA payments lost their exempt status when Husband converted the funds into permanent investments by placing them in his investment account.
If you have questions regarding this case or if you are experiencing a similar issue, please contact Cynthia Bashore, Esquire to discuss the details of your specific situation.
]]>Normally when people think of spying, they think of movies or politics. However, with the quick and easy availability of domestic spying devices, all one needs is a quick Internet search for a gadget, and the spying world becomes the suspicious spouse's oyster.
]]> These types of devices exist everywhere: teddy bears equipped with a camera or recorder, ink pens that double as tape recorders, button cameras or even a tiny GPS located underneath your car that can tell a suspicious spouse exactly where you are at any given time.One man who was a victim of spying filed a lawsuit against his ex-wife, accusing her of violating federal wiretap laws. The woman allegedly recorded several conversations with his attorneys, therapists and even those between members of his family. The lawsuit is ongoing and neither side chose to comment, although the man hopes to resolve the case outside of the courts.
Experts state that proving whether or not a tracking device or recording is criminal depends on a variety of factors and circumstances. Many agree though, that spying tends to go too far and can make people do things they normally wouldn't consider. One person who was the victim of spying was awarded damages of $10,000. In addition, six other plaintiffs were awarded the same amount, and the man's ex-wife was slapped with $75,000 in lawyer's fees and other costs.
Pennsylvania couples going through divorce should be wary of any type of activity that could be considered spying. While many believe that people emotionally involved may not listen to reason, the easy availability of spying gadget makes opportunities to spy difficult to pass up. While it may not be against the law, it could certainly be considered an egregious invasion of privacy.
Source: Houston Chronicle, "Spy gadgets infiltrate divorces as domestic snooping booms," Mike Tolson, April 29, 2012
]]>In SMC v. WPC, 2012 PA Super 92, Husband appealed the Trial Court's rulings that (1) Wife's post-separation affair is irrelevant to a spousal support entitlement; (2) Wife's vacation cruise with friends, over the objection of Husband, does not constitute "indignities" against Husband; and (3) Wife's decision to leave the marital residence as a result of Husband's verbal abuse did not constitute desertion. In determining spousal support entitlement, the Court must look at a party's conduct during the marriage to determine whether a fault grounds exists for divorce. Since a party cannot establish fault grounds based upon post-separation conduct, Wife's post-separation relationship was irrelevant to her entitlement to spousal support. The Court also found that leaving the marital residence as a result of Husband's verbal abuse, over Husband's objection does not constitute desertion. Wife did not leave maliciously or on a casual whim; rather, Husband was emotionally abusive. The Court also found a significant disparity in the incomes of the parties and ordered Husband to pay a portion of Wife's attorney's fees. Not a good day for Husband...
In MacDougall v. MacDougall 2012 Pa. Super 83, the Court decided the issue of whether post-separation cost of living adjustments to Husband's pension benefits are considered marital property subject to the terms of an equitable distribution order, where Wife was awarded a share of the marital portion of Husband's defined benefit pension plan. The Trial Court ruled that the marital component of Husband's pension did not include post separation cost of living increases. The Superior Court reversed, citing the general rule that post separation increases in pension benefits are marital as long as they are not the result of efforts attributable to the spouse. Therefore, the post-separation cost of living increases are considered marital property because the increases were not merit based nor due to post divorce efforts of Husband. Rather, they are considered "passive adjustments." The court concluded that post-separation cost of living increases in the benefit are marital and subject to equitable and proportionate distribution.
Notably, the Court also discussed the factors that must be proven for civil contempt: To sustain a finding of civil contempt, the complainant must prove, by a preponderance of the evidence, that: (1) the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) the act constituting the contemnor's violation was volitional; and (3) the contemnor acted with wrongful intent. The Superior Court reversed and remanded to determine whether Husband acted in contempt under these factors when he refused to provide Wife with her proportionate share of the cost of living increases.
In Reber v. Reiss, 2012 PA Super 86, Husband appealed a trial court's ruling that awarded Wife the parties' frozen pre-embryos created from Husband's sperm and Wife's eggs as part of an equitable distribution award in the parties' divorce. Affirming the Trial Court's ruling, the PA Superior Court concluded that although the party desiring to avoid procreation should ordinarily prevail, the Court balanced the facts unique to this case and found that Wife's inability to "achieve biological parenthood without the use of the pre-embryos" is a significant interest that outweighs Husband's desire to avoid procreation.
]]>The adoption tax credit may help many Pennsylvania residents with covering the costs of an adoption. In 2011, the tax credit was refundable up to an amount of $13,360 per child. This means that if a person's tax bill was less than the tax credit, then they were able to receive additional money from the U.S. government to cover the difference.
]]> In 2012, though, the adoption tax credit became merely a deduction, although that can still prove to be of substantial benefit. This deduction is allowable up to an amount of $12,650, and any amount that is unused may be applied to offset income taxes through 2017. Unfortunately, though, even this deduction is set to expire by the end of the year, leading many across the nation to try to hurry the adoption process along.Part of the reason behind the existence of the adoption tax credit is simply the huge cost associated with an adoption, running at $25,000 or even more. However, legislative action is pending to ensure that the tax credit is extended, although it cannot be said for certain that the action will be successful. Yet no matter what ultimately happens, Pennsylvania residents thinking about an adoption may benefit by becoming familiar with any tax laws and regulations that may be helpful as they pursue their dream of adding to their family.
Source: The Huffington Post, "With Adoption Tax Credit Due To Expire, Families Race To Adopt By Year's End," Amy Feldman, April 24, 2012
]]>In that vein, readers of this blog may be interested to hear that on April 10, a federal grand jury in Pennsylvania indicted a 49-year-old man for willful failure to pay a child support obligation. In 1998, the man was ordered by a county court to pay child support, and he continued to do so up until February 2008. At that time though, he stopped making the payments for unknown reasons.
]]> In this case, the indictment carried with it a charge of violating the Child Support Recovery Act. As a result, if he is convicted of the charge, he may be sentenced for up to two years in prison. He also faces a fine of up to $250,000. The total amount of the child support owed is allegedly more than $92,000.As the man was apprehended in California, this case also illustrates that authorities can reach across state lines to hold non-custodial parents accountable. Moreover, if convicted for the failure to pay child support, he may have his wages garnished and tax refunds intercepted. The money would then go directly to the custodial parent for the purposes of the child's best interest.
Source: US Department of Justice, "Former Lackawanna County Resident Indicted for Willful Failure to Pay Child Support," April 10, 2012
]]>Keeping good records can prove important in securing a favorable result in the divorce proceeding. That is, knowing not only what one owns but also what one owes can help with putting together a spending plan for during the divorce. This way, while the process remains ongoing, one can spend appropriately and thereby ensure that they are not left penniless.
]]> However, the financial stress of a divorce in Pennsylvania and elsewhere may continue long after the proceeding draws to a conclusion. Yet, by knowing one's finances, the risk of having debt problems can be greatly reduced. For example, one of the biggest issues in a divorce is who keeps the house. However, what also needs to be asked is: does it make sense to keep the house?In many cases, the answer may be "no." It may not be possible to continue paying one's own financial obligations in addition to the cost of maintaining the house. Then there are also mortgage payments and property taxes to take into account. By knowing one's finances beforehand, these problems can be avoided. It may also be helpful to collaborate with the other spouse during the divorce in order to come to a fair conclusion about not only who gets what, but also who can afford what.
Source: Pocono Record, "Divorce is also a financial stresser," Erin Baehr, April 1, 2012
]]>Gabor's daughter was in court on March 20 requesting that a guardian, sometimes known as a conservator, be appointed for her mother, who is in failing health. At the moment, Gabor's current husband is taking care of her and seeing to her affairs, but the daughter is claiming improper behavior. In particular, she claims that the husband is not only keeping her from seeing her mother, but is also acting in defiance of Gabor's estate planning documents.
]]> In those documents, the daughter claims that Gabor did not want her husband to be the only person in control of her affairs. Moreover, she is questioning whether her mother's finances are being spent appropriately. On the other hand, the husband says that he is simply trying to do what is best, and that Gabor's medical expenses amount to around $30,000 per month.If the court, based in California, does create a guardianship, then it could review Gabor's finances and ensure that the money is being spent appropriately. At the moment, a hearing has been scheduled for May 2 for both sides to present their case. Here in Pennsylvania, guardianships may be useful in managing the finances of the individual and with directing any medical treatment.
Source: New York Daily News, "Zsa Zsa Gabor's daughter files for conservatorship," March 20, 2012
]]>Conducted by the Evan B. Donaldson Adoption Institute, the study surveyed 100 adoption agencies and found that in 95 percent of infant adoptions, the birth parent and the adoptive parent had some degree of contact. Of the 14,000 to 18,000 infant adoptions each year, about 55 percent are completely open. This means that the birth parent may still have contact with their child.
]]> About 40 percent were so-called "mediated" adoptions. In these kinds of adoptions, the birth parent's contact with the child may be restricted to letters and pictures. Still, this allows the child to know who their parents are and to have an understanding about their biological relatives. For the birth parent, it provides them with an added sense of security knowing that their child is receiving good care.One issue that does arise in an open adoption is simply managing expectations. In the beginning, the birth parent may wish to have more contact with their child than the adoptive family is comfortable with. However, as time goes on, the situation flips as the adoptive family wants the child to have contact with their birth parent, but that parent may have moved on with their life. Nonetheless, for Pennsylvania families considering an adoption, an open adoption process may leave them feeling more satisfied and less stressed.
Source: Associated Press, "New report details increase in 'open' adoptions," David Crary, March 21, 2012
]]>Whatever the case may be, there are fortunately several options available to the custodial parent to protect the best interests of the child and obtain the necessary child support. When the non-custodial parent can be located, those options may include garnishment of wages, liens on property and interception of tax refunds. Yet even if the non-custodial parent cannot be located, there is one other option -- through the seizure of unclaimed property owned by that parent.
]]> According to the Office of the Pennsylvania Treasurer, there are roughly $1.8 billion in unclaimed property within the state. These funds can come from abandoned bank accounts, uncashed checks and from safe deposit boxes. Yet as with other forms of property, the state may be able to seize the unclaimed property of a non-paying, non-custodial parent for the benefit of the child in question.Since January 2010, the Pennsylvania treasury has been working in conjunction with the Department of Public Welfare to redirect unclaimed property to the custodial parent when the non-custodial parent who owns that property owes back-due child support. Since instituting the joint effort, over $110,000 has been seized and redirected. For the children who need that support, that may be good news indeed.
Source: Pennsylvania Treasury, "PA Treasurer McCord Says Over $110,000 in Unclaimed Property Seized For Overdue Child Support via Partnership with Department of Public Welfare," March 6, 2012
]]>The two share a 7-year-old son and a 10-year-daughter, and even though Grammer remarried in February 2011, the child custody battle with his ex-wife only ended in late February of this year. Under the terms of the agreement, the children will live with their mother in Los Angeles. Grammer, who lives in Chicago, will have "meaningful" visitation rights.
]]> The exact details of those visitation rights were not available, but they may allow Grammer to continue seeing his children while allowing the children to have a stable home environment. With both parents living so far apart, working out a joint custody agreement may have been difficult. Moreover, the agreement may provide some security to the children as their future is now settled.Child custody agreements that allow one parent to have full custody while the other parent has "meaningful" visitation rights may be the most desirable outcome for the children in some cases. However, when parents are contesting who gets custody, a family law judge in Pennsylvania will typically take into account a number of factors, and weigh and balance those factors against one another. To tip the scales in one's favor, the assistance of an attorney may well prove to be invaluable.
Source: New York Daily News, "Kelsey & Camille Grammer settle custody battle," Nancy Dillon, Feb. 28, 2012
]]>In 1970, just 13 percent of adults between the ages of 46 and 64 were either divorced, separated or had never married to begin with. The comparable figure for 2010 is about a third. Moreover, in just the past 20 years, the divorce rate amongst this age group has increased by 50 percent.
]]> There may be several reasons behind the numbers beyond just changing social mores. For one, people are living longer, meaning that a couple that has already spent 20 years together in an unhappy marriage could face yet another 20 or even 30 years if they do not seek a divorce. Also, it is more common these days for both spouses to work. That leads to a greater feeling of economic freedom, and allows one the comfort of knowing that he or she will be able to provide for him or herself after a divorce.However, whatever the reason for the change, divorce at an older age poses unique challenges in Pennsylvania and elsewhere. Older couples tend to have more assets that they own jointly, and they also tend to have children who may have their own ideas about any child custody arrangement. But difficult though these problems may be, they are resolvable either through a divorce mediation or in a court proceeding.
Source: New York Times, "More Americans Rejecting Marriage in 50s and Beyond," Rachel L. Swarns, March 1, 2012
]]>Several years ago, the mother and the purported biological father of the boy had an extramarital affair, and the boy was subsequently born in 2006. Although the man believed to be the biological father has not taken a genetic test, the mother's estranged husband had one taken that ruled him out as the father. Nonetheless, the husband raised the child as his own for at least the first four years of the boy's life.
]]> That led to a lower court ruling that because the husband had treated the child as his own and that since the child was held out as the product of their marriage, the mother could not pursue child support against the biological father. However, the Pennsylvania Supreme Court reversed that ruling. The court emphasized that a court should first take into account the best interests of the child before making any determinations.In both child support and child custody cases, judges typically try to ascertain the best interests of the child by weighing and balancing a number of factors. These factors can include paternity and the child's relationship to the parent. Here, as the case now continues to move through the Pennsylvania court system, it will be certainly interesting to see how a judge ultimately decides the issue in question.
Source: York Daily Record, "Pennsylvania Supreme Court ruling alters standards for deciding paternity," Feb. 22, 2012
]]>While going through a divorce is certainly difficult, there is no reason for your soon-to-be ex-husband or -wife to spy on you. In fact, in many cases, it is illegal for a future ex to go tap into your person e-communications. While it may be rare for a Philadelphia resident to get into criminal trouble for using software or devices to transmit a spouse's private information, it is possible. More likely, however, is that any information a spouse may discover will not be admissible evidence in a divorce proceeding in court.
]]> Many family law professionals encourage a spouse to change their passwords so that exes can't access things like communications with attorneys. In some situations, the information that an invasive spouse finds will be thrown out of court and can't be used in the divorce proceedings. While it is certainly important to find information about a spouse's assets, much of the information can be discovered legally and with a court order.As family law evolves in Pennsylvania and across the United States, there will be greater clarity on how to deal with electronic communication and cyber-snooping. For now, it is important to talk to an experienced divorce attorney to discover how you can protect yourself and your information from a less-than-trustworthy spouse.
Source: WLTX, "In Divorce Wars, Cyber-Snoops Often Cross Legal Lines," Derry London, Feb. 23, 2012
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