Law Office
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Elizabeth Plasser Kelly
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Family Law

Family law issues including divorce, custody, spousal or child support generally involve much stress, uncertainty, and emotion. All of these become even more heightened when children are involved. While each individual situation is different, which can greatly affect the advice you will be given, we have tried to post some information and answers to questions you may have. It is strongly recommended that you use this information as a general guide only, and that you allow it to help you frame the questions that you may have, and also to assist you in putting together all of the information that you will need to gain effective legal counsel.

The mother always gets custody of the kids, if they are between about 3 and 10 years, right?

Not always, but there exists something referred to as the “tender years” doctrine, which suggests that the mother have preferential custody during the child’s early years, as this is an important bonding time period—for the mother and the child.  The focus, during these years, as well as others, is “what is in the best interest of the child.”  Therefore, the court, and/or the hearing master will likely look to the totality of the circumstances when deciding custody issues.

What is the difference between legal custody and physical custody?

Legal custody is the legal right to make certain decisions for the child (e.g., medical and schooling issues), while physical custody is where (i.e., with which parent, guardian, or other person) the child resides.  Each of these types of custody may be in one parent, or shared between both parents; and in some cases a third party may have one or both of these forms of custody of a child.

How much will I have to pay/receive in support payments?

There exists a formula that the courts use to calculate this amount, however, various factors and situations must be taken into account.  For example, extraordinary housing costs, special needs, loss of, or lack of a job, among other things, may be figured into the analysis.  Some of these deviations may be temporary, or they may be permanent, and therefore they must be evaluated on a case-by-case basis.

I stay home and take care of the kids, so I put my career “on-hold,” so that means I will get more support, right?

Long term or short term deviations are sometimes granted, and may be based upon many factors, including the actual earnings during the last year of employment, or the court may impute an earnings capacity based upon prior work experience, education, etc.

My mortgage payment is very high, so that means I will get more support, right?

A mortgage deviation may be granted under certain circumstances. The court will evaluate many factors in deciding whether to grant a deviation, and the amount; the factors will likely include: the net income of both parties, monthly payment amount (including any home equity lines of credit), real estate taxes, and insurance.

My child is eighteen years old, so I do not have to pay support anymore, right?

In general, child support payments are not required or enforced beyond the age of 18, but there are factors other than age.  For example, whether the child is still in high school, whether there are special needs, etc.

My child’s other parent has had no contact with him/her for over six months, so I can terminate their parental rights, correct?

The lack of contact for six months is but one of the many factors involved; additionally, the reason for the lack of contact (e.g., overseas military service, incarceration, etc.) will be taken into consideration.  As is the test in custody cases, the best interest of the child is the measuring factor.

I get half of everything that we have, right?

That is actually seldom the case.  Pennsylvania strives to “equitably distribute” all “marital property.”  Equitable Distribution takes many things into account, including what each spouse did specifically and also what each spouse did indirectly to accumulate certain assets.  For example, a homemaker or stay-at-home parent has contributed indirectly to the accumulation of marital property, and this will factor into the analysis for distribution.  Additionally, a parent who “gave up” a promising career to raise the children, may get a disproportionate share of the assets.  This leads to the question of exactly what is “marital property”?  Which is easier defined in the negative; that is, Marital Property does not include property that belonged to each spouse prior to the marriage, nor does it include gifts or inheritances received by the spouse during marriage.  However, once married, or once received, as the case may be, the increase in value of such assets will be included in Marital Property.  This is a very convoluted area of law, and is subject to change, and therefore needs to be evaluated on a case-by-case basis.

My house has been in my family for many years, so I will not lose half of it, will I?

As previously discussed, the house itself may be included as Marital Property if it was bought by both spouses, or with commingled money of each spouse following the marriage, but most likely not included if it was inherited.  However, real estate is subject to rapid appreciation, as well as depreciation, and the property may have seen rapid appreciation, leaving a spouse with a large share of increase in value that may need to paid to the other spouse.  This can lead to the need for careful financing and property settlement agreement negotiations and drafting.


This is for informational purposes only, and not Legal Advice. You should contact an attorney, prior to make any decisions regarding situations of this type.

 

 

Law Office of Elizabeth Plasser Kelly
600 Eagleview Boulevard
Suite 300
Exton, PA 19341

610-738-0779
info@chestercountylaw.com

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