Family Law & Divorce - more info

Family Law
Family Law is the term for laws developed regarding family relationships. Family law rules define not only the relationships between members of a family, but also between a family and society as a whole. Family law reflects the values society shares regarding how people who are related should treat each other.

Family law attorneys assist people with the making and breaking of family relationships. Specific areas of representation usually involve marriage, pre-nuptials, post-nuptials, divorce, paternity, alimony, alimony pendente lite, child custody, child support and adoption. When you are faced with an important life decision regarding a family relationship, the advice and assistance of Mooney & Associates, experienced family law attorneys, often proves crucial to your understanding of the issues involved and your satisfaction with the ultimate outcome of your family-related matter. Our family law practice at Mooney & Associates, Attorneys at Law deals with the major life changes of our clients.

Marriage

Getting married is one of the most important things that a person will do in their lifetime. For every individual, it is a reflection of an emotional commitment, but it is also a legal status. Understanding your rights and obligations as a married person will help you fully appreciate the step you are about to take. Consulting with Mooney & Associates’ experienced family law attorneys may help you to decide if you need a pre-nuptial agreement.

The legal rights and obligations associated with marriage have evolved with out society, and today are generally equitable between both parties. Each state has its own rules about marriage, but there are some uniform principles. All states prohibit marriage to more than one person, marriage between the same sexes, and marriage between close family members. The remaining limitations and requirements vary by state, but some of the typical rules relate to age, medical exams, licensing, blood tests, and waiting periods. Each state prohibits marriage between brothers and sisters, parent and child, and marriage between an aunt or uncle or niece or nephew. Each state has a minimum age requirement, typically eighteen years old. Many states permit marriage at a younger age if parental consent is given. Most states require one or both parties to reside in the state for a specific period of time prior to the marriage. Some states require medical exams and a blood test be completed prior to issuing a marriage license. The blood test screens for venereal diseases, rubella, sickle cell anemia, AIDS, and other diseases. Lastly, some states require a formal ceremony of some kind with witnesses and a licensed public or religious official.

Marriage is more than a romantic relationship. Marriage is a legal relationship which affords the couple many federal and state rights and benefits that are unavailable to single people. Although state laws vary, most states give married couples the following rights, privileges, and benefits: 1 ) joint federal and state income tax returns may offer advantageous tax rates and/or credits, 2 ) the ability to create a family partnership under federal tax laws which allows you to divide business income among family members which may lower the total tax on income, 3 ) the ability to receive your spouse’s and dependents’ Social Security, disability, unemployment, veterans pensions and public assistance benefits, 4 ) inheritance rights under state intestate succession laws, 5 ) the ability to sue a third person for wrongful death of your spouse and/or loss of consortium, 6 ) the right to receive family rates on insurance, 7 ) the right to make medical decisions about your spouse in the event of a disability, 8 ) the legal protection by asserting the marital communications privilege to avoid testifying against your spouse in a court proceeding and, 9 ) the ability, in some states, to sue a third party for offenses that interfere with the success of your marriage such as alienation of affection and criminal conversation (these are limited circumstances).

Common Law Marriages

Couples who live together for a certain period of time may be entitled to the legal benefits and obligations of married couples if certain criteria is met. If they meet the common law marriage requirements, they must go through a formal divorce to end the relationship. A common law marriage is recognized when a heterosexual couple lives together for a “significant period of time.” No state defines the time period, but it is typically in the area of ten years. The couple must hold themselves out to the public as a married couple. Examples of this include sharing the same last name, filing joint tax returns, and referring to each other as husband or wife. Twelve states recognize common law marriage. These states include Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. In 2001, Pennsylvania ended the ability to have a common law marriage in Pennsylvania. Courts in Pennsylvania will not recognize that relationship as a marriage if it occurred after 2001.

The U.S. Supreme Court declared marriage to be one of the basic civil rights of man and part of the fundamental right of privacy in the United States Constitution. Yet, to date, homosexual couples are denied this right. A cohabitation agreement between two people will be recognized and enforced by a court regardless of the parties, given no other elements render it invalid. Without legal recognition as a married couple, gay partners do not receive the same benefits that heterosexual couples do.

Premarital & Cohabitation Agreements

Although not romantic, premarital agreements, often called prenuptial or antenuptial agreements, are effective tools for defining the legal relationship between two people before marriage or even simply living together. The process of creating the agreement will clarify each person’s expectations and any assumptions or potential misunderstandings. Often, if the spouses enter the marriage with significant property, a prenuptial agreement can protect property from being considered marital property by the courts in the event of a divorce. The agreement creates a framework for handling money and property issues during the marriage and how to divide property if the relationship is eventually terminated.

Each state has its own laws about what can be included in a pre-marital agreement. Most states do not uphold agreements about child support and will not uphold an agreement which was created fraudulently, unfairly, or under duress. For example, some courts may consider requesting a spouse to sign the agreement five minutes prior to the wedding ceremony unfair.

Divorce

Divorce and issues surrounding divorce are a significant part of our family law practice. The divorce itself, whether it be settled or goes to trial, requires experience to spot and resolve issues as well as skillful negotiations. The attorneys at Mooney & Associates, Attorneys at Law, can assist in obtaining spousal support or alimony issues. We can also help determine when spousal maintenance is appropriate and the duration of the support.

Contemplating divorce is always difficult. Whether you are unsure you want to end your marriage or are still considering the options, it helps to learn the basics of divorce law and the process. Should you conclude that divorce is necessary, it is very important that you seek assistance of an experienced family law attorney. Involving Mooney & Associates, knowledgeable family law attorneys, as soon as possible in the divorce process is one of the best ways to preserve your own long-term financial and emotional health.

A divorce is a process of terminating a marriage contract between two individuals. A divorce will give each person the legal right to marry someone else, divide the couple’s assets and debts, and determine the future care and custody of their minor children. While each state has individual statutes which address these issues differently, the basic principles that the states follow when considering a request for divorce are relatively uniform.

In the majority of states there is at least one form of a “no fault” divorce. No fault divorce is a marital termination proceeding where the divorce is granted without either party being required to show fault. In no fault states, either party may obtain a divorce even if the other spouse does not consent to the divorce. Pennsylvania has a no fault divorce statute.

Other states require that you give a legal reason in order to get a divorce. These are called fault-based divorces. Each state will have a statute which specifically defines the different types of fault which must be proven in order to establish the requested marital termination.

In some states, such as Pennsylvania, both fault and no fault divorce grounds are available. An experienced attorney can help you determine if you should pursue a fault based or no fault based divorce. Typically a fault based divorce is pursued when a couple cannot reach a satisfactory division of their property, award of support or child custody agreement, and one party wants the court to consider the conduct of the other party when deciding the issue. Whatever the issue, the decision to pursue a fault based divorce should be based on legal rather than emotional reasons.

Before a divorce is granted there are usually five basic issues which must be resolved: 1) alimony or spousal support, 2) property division, and if there are children: 3) custody, 4) visitation, and 5) child support. If a couple agrees on all five of these issues in writing, they will be granted an uncontested divorce and avoid the controversial divorce litigation.

If there is a disagreement on any of the basic issues, a contested, divorce exists. When a divorce is contested, the couple may proceed through all phases of litigation including trial before a family court judge. The couple may also voluntarily seek alternative dispute resolution methods such as mediation. It is important to consult with an attorney before deciding which method is right for your situation.

The actual legal process for obtaining a divorce varies by state. However, most marital termination proceedings usually include some version of the following components:

• • A Petition (the filing of some form of petition document formally initiating a divorce proceeding).
• • A Summons & Response (a formal notice to your spouse about your intent to pursue the court action to obtain a legal divorce, and a response is the other parties’ acknowledgment that the divorce procedure has begun).
• • Motions (a formal request to the court for an order of some type of action before the trial and throughout the divorce process — including motions regarding protection against domestic abuse).
• • Discovery (the proceeding whereby each side gathers information to support their legal arguments through depositions and interrogatories).
• • Hearings and Temporary Orders.
• • Trial (which may include witnesses, friends, financial experts, and psychologists).
• • Judgment (the decision of the court which rules on the issues in questions such as custody, visitation, support, and property division).

Most states use an equitable distribution system to divide the property of the divorcing spouses. Each state has its own rules and procedures for doing so. States that use an equitable distribution system attempt to divide the property fairly between the parties. That doesn’t mean that it will be a 50/50 split on all of the property. Rather the goal is to achieve an equitable or fair distribution of the property. The court will divide the couple’s assets in a way it deems fair for the particular circumstances of the case. Generally property will be classified as joint assets and separate property. Joint assets are those held or considered to be held by both parties. Separate property includes property each spouse had before the marriage or acquired during the marriage by gift or inheritance, including personal injury damage awards. In order to establish that something is separate property, it must have stayed within the exclusive ownership and control of one spouse which can be very difficult to prove. If separate property is combined with joint property, the court may conclude the property among the other property to be divided upon divorce.

There are several factors used by the courts to determine how to arrive at an equitable distribution of the property. They will look at the spouses monetary and non-monetary contribution to the marriage. The courts will value the contribution of a spouse who stayed at home to raise the children and the value of the spouse who works so that the other spouse can obtain a professional degree. They will look at the whole picture to arrive at a fair solution. The equitable distribution of property will usually become one of the most contentious issues in a divorce. In order to enter a divorce decree in Pennsylvania before resolving the economical issues requiring a bifurcation of the two issues, one party must prove a compelling reason for the bifurcation. In order to assure that your interests are being adequately protected you need the advise and assistance of an experienced family law attorney. The attorneys at Mooney & Associates, Attorneys at Law, can protect your interests in this regard.

Alimony or Alimony Pendente Lite

Alimony, also known as spousal support or maintenance, is a financial support paid by one spouse to another. Each state determines alimony differently. You should consult with an attorney to determine which factors will be considered when deciding if and how much and to whom alimony will be paid in your case.

There are essentially three types of alimony: permanent, restitutional, and rehabilitative. Alimony is an allowance for support and maintenance such as food, clothing, housing, and all necessities of a spouse. When a spouse requests permanent alimony they must establish that they have a need for support and that their spouse has sufficient means and abilities to provide for all of that need. Restitutional and rehabilitative alimony are paid for shorter periods of time. Rehabilitative alimony is to provide a means necessary to enable a spouse to refresh or enhance job skills necessary in order to become self-sufficient by providing financial support while the spouse is obtaining the necessary skills. Restitutional and rehabilitative alimony are usually paid for a shorter period of time. The types of factors the courts consider vary from state to state but may include the length of the marriage, the parties’ financial conditions after the property division, the parties’ ages, health, and physical conditions, the educational opportunities foregone by each party, the employment and foregone employment by each party, and the skills and time necessary for the dependent party to become self sufficient. Unfortunately alimony is a difficult issue to be successfully resolved in a divorce because it addresses the on-going lifestyles of both parties. Reaching the decision to end a marriage is enormously difficult, but once you make that decision it is in your best interest to approach the divorce process from a rational, business-like perspective. It is extraordinarily difficult, given the emotional issues which you must also resolve. It is important that you work with an attorney who is experienced in family law in order to ease your stress and get you through this stage in order to begin a new life.

Child Custody

The resolution of child custody and visitation disputes requires divorcing parents to act rationally in their child’s best interest at a time when they are facing the overwhelming stress of a divorce. Involvement by a family law attorney with knowledge and experience of your state’s child custody laws will help. Advice from Mooney & Associates‘ experienced family law attorneys will help you understand the options available to you in your particular situation and make a plan that will serve the best interest of you and your children.

Divorcing parents need to learn the child custody and visitation options which are available to them and the legal standards applied to the difference options. They need to balance their knowledge against an unflinching assessment of their ability to work with the former spouse to make a fully informed decision about their children’s future. Couples face increasing pressure from society and the courts to work together to solve custody issues during a time when they are at their deepest emotional distance. Some divorcing couples are ultimately able to agree on custody and visitation issues without the need for a court order. Knowledgeable advice and representation for an experienced family law attorney often makes the difference in reaching a fair, mutually satisfactory agreement. When an agreement cannot be reached, success at trial may depend on the early involvement of a family law attorney with an established track record in contested custody matters.

Legally, the set of parental responsibilities regarding day-to-day care of a child, as well as the rights to direct the child’s activities and make decisions regarding the child’s upbringing have been split into two separate categories: physical custody and legal custody. Physical custody means the actual living arrangement of the child and the rights and responsibility associated with daily childcare. Legal custody means the responsibility associated with the raising of the child and includes such questions as religious upbringing, school choice, medical care and issues such as discipline, driving age and whether or not to attend special activities. There are numerous options regarding the division of these rights and responsibilities between divorcing parents. Some options are available as part of an agreement and some options may be required by court order.

Sole physical custody is awarded or agreed upon when one parent has the exclusive, primary right to have the child live with him or her. That parent is then known as the custodial parent and the other parent is known as the non-custodial parent. Sole physical and legal custody generally only occurs when there is a history of abuse or neglect. In such instances the non-custodial parent may be limited to restricted or supervised visitation. Currently, the most common type of sole custody is sole physical custody with joint legal custody including the grant of generous visitation for the non-custodial parent.

In Joint Custody, parents share responsibility for decision making and for physical control and custody of the children. Couples may agree upon joint custody, or the court may order it. Couples with joint physical custody usually share legal custody, but joint legal custody does not necessarily mean joint physical custody.

Split Custody, a less popular resolution, is when each parent takes custody of a different child. Another option, which is less popular, is called “nesting” or “bird nesting”. In this option, the children remain in the pre-divorce home and the parents rotate residence in the home.

Shared Parenting is a relatively new concept in child custody where shared parenting standards replace previously used custody and visitation rules using a plan of cooperative parenting as a framework. Shared parenting involves both legal and physical custody. Children spend equal time with both parents, though no pre-set formula as to how parents share the responsibility is in place. Parents jointly plan budgets for the children’s expenses and pay equitable shares for those expenses.

Questions of custody usually arise when a divorcing couple with children decide to separate. While some couples immediately reach an agreement for either short or long term situations, others require court intervention for immediate and final decisions. Custody is addressed throughout the divorce process in the following procedures: Temporary Hearing, Custody Evaluations, and Custody Trials.

Once custody has been established, either through an agreement or court order, parents may request to modify the established agreement if they cannot agree to a change. In order to support a request for a change, the parent seeking the modification must show a substantial change in circumstances. Some states will only consider a request for modification within two years of the original custody determination unless there is a showing that the child is endangered by the original custody arrangement. States that follow the Uniform Child Custody Jurisdiction Act only consider requests for modifications if they occur in the state where the child has an established custody order or an established residence in order to prevent “forum shopping” and custody motivated child removals. Court modification requests motivated by the relocation of one parent require special consideration.

Conclusion

The resolution of child custody and visitation disputes requires each divorcing parent to ac rationally and in their child’s best interest at a time when they are facing the overwhelming stress of a divorce and separation from their children. Involvement by a competent family law attorney with knowledge and experience in Pennsylvania child custody laws will ease the stress at this time immeasurably. Advice from the experienced family law attorneys of Mooney & Associates, Attorneys at Law, will help you understand the options available to you in your particular situation and outline a plan that will serve your best interest as well as the best interest of your children.

Child Support

In our country there are more than 13 million divorced parents with children under the age of 21. Typically one of the parents has physical custody and relies on child support paid by the other parent. Statistics show that when all child support is paid as agreed to in the divorce decree, both parents remain involved with their children, and the children usually have an acceptable standard of living. Conversely, when child support is not paid, custodial parents and their children are at risk for financial turmoil. Unfortunately, a disproportionate number of divorced single parents and their children do not receive child support and live below established poverty levels.

Therefore, enforcing the obligation to pay child support is a national priority. Federal legislation and uniform state laws exist to make enforcement and collection of child support easier. Each state has different guidelines for establishing child support, and there are various methods in the law that exist to recover the support owed. If you are ending a marriage, already divorced or are trying to make your child’s other parent legally responsible, it is important to consult with a competent family law attorney. The attorneys at Mooney & Associates, Attorneys at Law have experience in the area of child support, and will help you understand Pennsylvania laws for child support collection and enforcement which apply to your particular situation.

Each child’s biological parents have a legal obligation to financially support the child. That obligation lasts until the child reaches the age of maturity (depending on state law, 18 or 21), marries, joins the military, or becomes self-supporting. When parents live together, the level of financial support provided is generally not questioned. When parents divorce or are unmarried, the parent who does not live with the child is normally obligated to pay child support. Support is owed whether the child lives with their other parent or a third party and whether or not the person with whom the child lives can afford to support the child on their own. Support may be owed even if parents share custody.

Each state has adopted a set of guidelines for determining child support. Family courts use those guidelines to establish the amount of support a parent pays. Some states allow courts to make adjustments to the amounts the state guidelines indicate. Most courts, however, tend to closely follow the amounts the guidelines establish, unless something in the case indicates the need for a change. Support guidelines generally fall into one of three categories. Each uses a difference approach in order to establish the amount of support though they all consider the needs of the child. Provisions for medical costs and insurance are generally added to the basic amount suggested by the state guidelines. The attorneys at Mooney & Associates, Attorneys at Law, can show you the method used by Pennsylvania courts to establish your support obligation.

Whatever approach is used, the court looks at a variety of sources to determine the paying parents income and ability to pay. Income may include wages and investments (stocks and pensions), government payments, and benefits (disability, social security, veteran unemployment payments), goods and services that come with a job or are given by family members, friends or new spouses, gifts and inheritances, income from rental property and overtime, seasonal or part-time second jobs.

People who receive welfare payments or who are unemployed without wages will usually be ordered to make a small monthly payment. The court may assign an income different than the one the paying parent appears to have if the court believes that the paying parent is capable of higher earnings.

Support payments generally begin when a family court enters an order requiring payment of support. In divorce, child support will be set on a temporary basis at an early hearing following the initial request for divorce. The parties may agree on the amount of the temporary and permanent support. Otherwise, the amount of support will be determined as part of its overall decision in the divorce and a permanent order for child support will be binding.

When parents have never married, the custodial parent may petition for support from the non-custodial parent. As part of that proceeding, DNA tests may be ordered to establish paternity if paternity is contested.

Support payments are due at specific times each month. In most states the paying parent must make their payments to a child support registry. The registry then forwards the payment to the custodial parent and keeps track of payments that are made.

When child support payments are owed but not paid, a variety of measures exist to collect past due amounts and protect against future non-payment. Most states have laws that allow a family court judge to suspend professional or business licenses, take away driver and recreational licenses, require payments of future owed sums in advance or place non-paying parents in jail. All states have created offices of Child Support Enforcement. These state agencies are regulated by the federal government and have the power and tools to locate responsible parents for enforcement of support orders. Additionally, when the amount of support owed exceeds a certain level and the responsible party resides in a different state, the federal government has the right to bring criminal charges against the parent under the federal Child Support Recovery Act.

Some states have rules that require a regular review of ongoing child support awards. Either parent may ask the court to recalculate the amount of support if the parent can show a substantial change in circumstances. Parents receiving child support may be able to increase the support they receive when the paying parent’s income goes up, especially if the current arranged support ordered is not sufficient to meet their child’s needs. Support may also be increased on a basis of a child’s specific needs for things such as tutoring, medical treatment or therapy.

Paying parents may be able to decrease the amount of future support payments if they lose their job, have a reduction in income or when the custodial parent’s income increases. Federal laws limit states from forgiving past due child support payments. Courts are reluctant to reduce child support awards, and paying parents may have an earning capacity imputed to them, whether or not their actual earnings reflect that amount. The attorneys of Mooney & Associates, Attorneys at Law, have vast experience in the area of child support and custody, and will assist a parent in obtaining an order for the appropriate amount of child support and assist in making sure that the order is enforced. We represent either parent in a support modification proceeding or in a proceeding to establish or disprove paternity. Because the well-being of children is at stake, child support issues are the paramount concern, and the assistance of Mooney & Associates, Attorneys at Law, experienced family law attorneys is essential to the process.

Adoption

Adoption is a legal process by which a new parent-child relationship is formed. The laws of adoption vary widely from state to state, and procedures for adopting internationally vary from country to country, based on the country of the child’s birth. Whatever type of adoption you are interested in, you need to hire an adoption attorney as soon as possible to help guide you through this process.

Through adoption, a parent other than the birth parent becomes legally responsible for a child’s physical, materia, and emotional well-being. Adoption has changed dramatically over the past ten years. It has become a positive way to form a family and no longer kept a secret. Adoption law is a state law. All 50 states have statutory laws which govern adoption. Each state’s laws on adoption apply in particular to adoptions that occur within its boundaries.

Adoption attorneys can help adoptive parents find a birth mother, arrange for the adoption process to begin and finalize the adoption with the court. Adoption attorneys are experts in understanding complex adoption laws. Your attorney will explain the rights and responsibilities associated with adoption, review finances with you so as to make the most of the adoption assistance available as well as review adoption agency contracts for validity and fairness. We, the attorneys at Mooney & Associates, will advocate on your behalf at every stage of the adoption process from the initial inquiries to the final court approval.

There are many types of adoption. The most common distinction in types of adoptions is between domestic and international. Domestic adoptions are adoptions by United States citizens of U.S. born children. International adoptions are adoptions by United States citizens of children born in another country. Within these categories are a number of other distinctions. The domestic adoption of an infant is usually accomplished by the pairing of birth parents with adoptive parents. The adoption attorneys work with both parents and adoptive parents to help facilitate such a match. Adoption of older children usually takes place through the state or county foster care system. These children are placed in foster care because they have been orphaned or because their parent’s parental rights have been terminated after a finding of abuse or neglect. Most international adoptions are closed, meaning that the birth parents have no contact with the adopted child or his or her adoptive parents after the adoption takes place. The trend in domestic adoptions is towards open adoptions, where the birth parents retain some level of contact with the adoptive family.

Stepchild adoptions are unlike traditional adoptions in that the parent and child have already become matched by other circumstances. A person who marries into a family with children may choose to retain the stepparent-stepchild relationship, or may want to take the step towards adopting their spouse’s biological children. Sometimes a grandparent, aunt, or uncle will adopt a child whose biological mother or father can no longer raise the child.

Many people opt to adopt independently without the use of an agency but with the help of an adoption attorney. Close to half of the domestic adoptions in the United States are independent adoptions through attorneys. An advantage to an adoption attorney is that you have more input into the process. By the process of an independent adoption, your attorney searches for a birth mother and screens prospective birth mothers for you. The attorney also facilitates all of the legal procedures necessary to complete your adoption. Whichever type of adoption you are interested in, you will need an attorney who is experienced in all aspects of adoption.

In addition to an adoption attorney, you will also need a social worker to prepare a “home study” for you. Adoption laws require that the adoptive parents undergo a basic investigation. The social worker will investigate criminal history, ask the parents to have medical examinations done, visit the home to make sure that it is equipped for the child, require adoptive parent training and counseling, and review the parents finances to assure that they can financially handle a new member of their family. Adoptive parents must be at least 18 years old,and generally not over 50 years old, although that age limit is often relevant only in other countries. Single people may adopt. People with relatively moderate incomes may adopt as long as they can show that they are financially fit to raise the child. Steady employment is required. Some foreign countries require adoptive parents to be in good health. Adoptive parents must not have serious criminal records or a history of drug or alcohol abuse. Some private agencies have requirements regarding religion, fertility status, or educational backgrounds. The attorneys at Mooney & Associates, Attorneys at Law, can give you guidance in determining your qualifications to become an adoptive parent.