May 132016
 

On April 21, 2016, Pennsylvania Governor Tom Wolf signed into law House Bill No. 12 (2015 Session). This law provides a spouse, who is a victim of a personal injury crime committed by the other spouse, an easier route to obtain a divorce.

Under the existing provisions of the Pennsylvania Divorce Code, one spouse cannot obtain a no-fault divorce from his/her spouse unless both parties consent after a ninety (90) day waiting period or, if one spouse does not consent, following a two year separation. Under existing law, if a spouse physically abuses the other and does not wish to consent to a divorce, a victim spouse may be incapable of divorcing his/her aggressor spouse until two years passes. However, this new law provides a way of escape.

Under the new law, an aggressor spouse’s consent is “presumed where that party has been convicted of committing a personal injury crime against the other party.” (Rev. 23 Pa.C.S.A. § 3301(c)(2)). A personal injury crime may include assault or sexual offenses. The new law also forbids a Court from requiring a victim spouse to attend mandatory counseling when he/she has a protection from abuse order against his/her spouse or when said spouse is the victim of a personal injury crime.

This law becomes effective on June 11, 2016, and permits abused spouses who are victims of a personal injury crime, committed by their spouse, to obtain a divorce without the consent of the abusing spouse, or without having to await a two year separation.

If you are a victim of physical spousal abuse, you have the legal right to obtain protection. You should not only call the police, but you should also consult with an attorney.  The attorneys at Fries Law Office are experienced in family law and are ready to assist you in ceasing the marital ties between you and your abusive spouse. Protect yourself and contact us if you have questions concerning your rights as a victim spouse.

Jan 292014
 

If you are going through a divorce or contemplating a divorce, it is likely that you will receive information on the subject from well-meaning family members, friends, co-workers, or others. Just about everyone has been affected by a divorce, whether it be from one’s own divorce, one’s family members, or friends. Unfortunately, there are a number of legal “myths” or just plain misinformation that exists with respect to the subject of divorce.

One common misconception that we often hear is the belief that if you leave your spouse, you give up the right to claim your share of marital assets, or, on another variation, that you give up all rights if you move out and remain separated for more than thirty days. Another misconception regarding marital assets is that if one spouse is at fault (for example, if a spouse has engaged in an extra marital affair) that he or she gives up the right to share in the division of assets.

Pennsylvania law provides that all marital assets are to be divided upon divorce without regard to fault. The division of assets involves a two-step process. First, the Court must determine whether an asset is “marital property”. Generally, anything acquired during a marriage is “marital property”, regardless of whose name the asset is held. This includes jointly acquired assets, and  property held in the name of one spouse, such as pensions and other retirement benefits. Common exclusions to “marital property” include separate property acquired by a spouse through inheritance, or property that both spouses have agreed to exclude as marital property, as generally occurs when there is a pre-nuptial agreement.

The second step in the division of marital assets is the “equitable distribution” of marital property. This means that one spouse can be awarded more than 50% of marital assets depending upon a number of factors, such as the length of the marriage, the ages of the spouses, the contributions made by each spouse, and the relative incomes and separate assets of each spouse. For example, if one spouse is a highly paid executive and the other spouse has a modest income or no income at all with little prospects for future employment, an award of 55% of the marital assets or more in favor of the economically disadvantaged spouse is likely. On the other hand, if the economic positions of both spouses are relatively equal, equal division of marital assets is likely.

Another common misconception is that a divorce is automatically granted after a two year separation. This is incorrect. While it is true that the consent of the other spouse is not necessary after a two year separation, if either spouse has made a claim with the Court for the division of marital assets or for post-divorce alimony, these claims will have to be resolved before a divorce is granted, unless the Court agrees to “bifurcate” or separate the divorce from the economic issues.

One of the biggest and most costly misconceptions in a divorce is the mistaken belief that property matters or alimony matters can be addressed after a divorce is granted.  This is not the case! If you fail to make a formal claim with the Court for the division of marital assets or for alimony before a divorce decree is granted, you give up the right to make these claims. If you have any property issues with your spouse or any spousal support or alimony issues with your spouse, these must be addressed before the divorce is final. Unfortunately, we have found that many people fall into the trap of obtaining a no-fault divorce under the mistaken belief that they can address property and support issues later on. If you have not made a formal claim for the division of marital assets or for spousal support or alimony before a divorce is granted, it is too late.

If you or your spouse are considering a divorce, property matters and support matters must be addressed before your divorce is final. With over thirty six years of experience, we are here to provide you with experienced advice and representation. Please feel free to call our office to schedule a consultation to discuss these important issues so that your interests will be protected.

Jan 242014
 

Custody cases are inherently emotional. In my observation, parties are generally willing to negotiate their assets, but face turmoil when they have to decide who keeps the kids and when. Because of the bitterness and subjectivity evident in custody disputes, parties usually forget about the procedures entailed with such matters.

At the outset, it is necessary to identify the different custody rights a party may have. First, there is legal custody. Legal custody concerns a party’s ability to make decisions for their child. Obtaining school records, taking a child to the doctor, or signing them up for a sporting activity all involve legal custody. Generally, parties maintain shared legal custody of the child. Second, there is physical custody. Physical custody concerns where the child lives. There are several levels of physical custody which are determined by the amount of time a party has with his/her child: sole physical custody, primary physical custody, and shared physical custody. A party has sole physical custody when only he/she have the right to exercise physical control of the child. A party has primary physical custody when he/she have more time to exercise physical control of the child than the other party. Parties have shared physical custody when both parties have equal rights to maintain physical control of the child.

Lehigh County has a three-step process when it concerns Custody actions: (1) the Mediation, (2) the Custody Conference and (2) the Judge. Either party may elect to resolve their issues before a professional mediator, but it is not required. No attorneys or children are present for the mediation. It is an opportunity for both parties to air their differences and reach a compromise concerning who will  have the child and at what times. If a compromise can be reached, such an agreement becomes an Order of Court, which can be enforced by either party if the other party does not follow its terms.

The next level involves the Custody Conference, which is conducted by a Family Court Hearing Officer, or Master, within the Lehigh County Courthouse. Unlike a mediation, a Custody Conference usually involves the parties’ attorneys; but, the desired outcome remains the same: the attorneys discuss the issues before the Master in order to reach an agreement. If parties are not represented, then they would discuss their issues before the Master in hopes of reaching an agreement. If a custody agreement is not reached, the Master generates an Interim Order, usually maintaining the status quo, and makes its recommendations to the Court.

The Judge is the last step in attempting to establish custody rights between parties. If a party is represented by an attorney, the attorney prepares a Pre-Trial Statement in advance of a custody hearing, which lays out the reasons why their client deserves custody of the child. A hearing is scheduled by the Court, and the attorney (or party if they do not have an attorney) must present their case. The Judge decides the parties’ custody rights by determining what is in the best interest of the child. Once the Judge decides the matter, an Order of Court is issued where both parties must abide.

There are many twist and turns involved in a Custody suit, but you do not have to go it alone. Consider contacting our office for assistance and leave the stress of any Custody matter to us.