FAQs

After your divorce, you might find it necessary or desirable to modify one or more of the stipulations in your divorce decree, property settlement, or custody and support arrangements. You must follow proper procedure if you want that modification or set of modifications to be valid. An experienced family law attorney can work with you to ensure your desired changes are valid, and to negotiate a great outcome with the other side.

Pennsylvania law follows the concept of Equitable Distribution of the Marital Assets. This means that the court will divide Marital Property in such percentages and in such a manner as the court deems fair after considering all of the following, relevant factors:

(1)  The length of the marriage.

(2)  Any prior marriage of either party.

(3)  The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

(4)  The contribution by one party to the education, training or increased earning power of the other party.

(5)  The opportunity of each party for future acquisitions of capital assets and income.

(6)  The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

(7)  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.

(8)  The value of the property set apart to each party.

(9)  The standard of living of the parties established during the marriage.

(10)  The economic circumstances of each party at the time the division of property is to become effective.

(10.1)  The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.

(10.2)  The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.

(11)  Whether the party will be serving as the custodian of any dependent minor children.

With certain specific exceptions, Marital Property is generally defined as all property acquired by either party during the marriage and the increase in value of any nonmarital property acquired prior to the marriage. This means that nearly all property that two spouses obtain from the time they are married to the time they are separated is considered Marital Property, and therefore subject to Equitable Distribution.

Though the law sets forth specific factors for Equitable Distribution, the factors are not so specific that every case gets a cookie-cutter result. In fact, the law gives courts great discretion to divide the Marital Assets in a fair manner, so long as the above factors are considered. An experienced family law attorney can assist you in navigating these muddy waters and putting the best arguments forward.

As well, sometimes letting an attorney handle the negotiations with the opposing party can help things to go more smoothly. While you might find it impossible to have a reasonable discussion with your ex about who gets the family dog, family law attorneys engage in these sorts of discussions all the time. Hiring a family law attorney means that you can take the backseat on these emotionally-taxing discussions. While the judge often gets the final call, you can rest assured knowing that your attorney will work their hardest toward your desired outcome. Count on Thomas A. Will & Associates to be your champion in these difficult battles.

If a person is behind on alimony or child support obligations, they may be subject to garnishment of their wages. Garnishment means that Pennsylvania will automatically take a portion of the paycheck of the person who owes alimony or child support, before they even receive their paycheck. You are then paid by the state in installments for what you are owed. However, the percentage of a person’s wages that can be garnished depends on the extent to which they are already supporting the child, and the amount of time that they have failed to remain current on their payment obligations.

As well, in certain circumstances you can petition for the court to find the delinquent payor in contempt. However, this is oftentimes not the favored method for judges who prefer that opposing parties make their best efforts to get along and settle matters amicably. Many judges are lenient regarding contempt, and will find contempt primarily in circumstances where the obligated party has repeatedly shown zero effort to make good on the owed amount. The logic follows that a person who is put in jail for failure to pay arrears has no ability to be out in the world earning the money needed to pay those arrears. “What’s good for the goose is good for the gander,” or in other words, keeping the payor out of jail is good for both the payor and the payee.

The law is complex with regard to payment of owed alimony or child support, and in many circumstances the procedure is more complex. Count on the experience of Thomas A. Will & Associates to assist you in getting the money that you are owed.

Sometimes! If both parties agree with the change to be made to a child support order, then getting the order modified could be fairly simple. However, in the more common scenario where the parties do not agree that child support should be modified, you may need to bring a Petition to Modify.

Petitions to Modify are often brought for one of two reasons: a paying party wants to pay less, or a paid party wants to receive more. However, the law says that modification must be based on some “material and substantial change in circumstances.” In other words, the law sets forth that simply wanting to change the amount of child support is not enough reason to bring a Modification. A good example of a material and substantial change in circumstances is if the party paying the child support lost his or her job, and his or her new job does not pay as much income as before. In this example, a Petition to Modify could be brought to ask the court to reduce the amount of child support owed. However, if someone purposefully loses their job so they don’t have to pay as much, the judge might order them to pay just as much as before, or more.

If you are the paying party, filing a Petition to Modify presents some risks. If the court finds that there is a change in circumstances, the court then looks to the respective net income of the parties, the child support guidelines, existing law, and the amount of time that the child spends with either party. As well, if the original support order was entered prior to January 1, 2019, different laws may also apply. This is all to say that, while the court has the ability to reduce the amount that you owe, the court can also increase the amount owed – and oftentimes this is the result.

If you are the party to be paid child support, bringing a Petition to Modify also presents its risks. The court could ultimately decide that less money is owed, instead of more. As well, if the court finds that the Petition was brought frivolously (and that there was not a true material and substantial change in circumstance), you could be ordered to pay the opposing party’s attorney’s fees.

Contact the law offices of Thomas A. Will & Associates today for a consultation of whether your support order can be modified, and whether there is any degree of risk involved.

In Pennsylvania, “full custody” is something of a misnomer because the types of custody are often misunderstood. There are two different types of custody in Pennsylvania: Physical Custody, and Legal Custody.

Physical Custody is a matter of which parent physically has the child at a given point in time. Legal Custody is more about who makes decisions for the child, such as who the child’s dentist will be, or whether the child will play on the school soccer team.

There are also subtypes of Physical Custody and Legal Custody.

A parent with Primary Physical Custody has Physical Custody of the child for a majority of the time (usually 4 or more days in a week). Conversely, a parent with Partial Physical Custody has Physical Custody for less than half of the time (usually 3 or fewer days in a week). A parent may also have Supervised Physical Custody, which means that they can have visits with the child, typically at a location in the community (such as at a diner or local park), and the visits must be supervised by a person that the court approves. Lastly, Shared Physical Custody means each parent gets about half of the time.

A parent with Sole Legal Custody exclusively makes decisions for the child, whereas parents with Shared Legal Custody must communicate with each other about decisions for the child. Parents with Shared Legal Custody are expected to cooperate.

The default in Pennsylvania is that each parent starts with Shared Physical Custody and Shared Legal Custody. This means that, until a court orders something different, both parties should get Physical Custody for about half of the time, and should respect each other’s Shared Legal Custody by cooperating in making decisions for the child.

To say that you want “full custody” is basically to say that you want “Sole Physical Custody” and “Sole Legal Custody.” While this would sound ideal to many parents, it is rare that a parent would get Sole Physical and Sole Legal Custody because there is a strong presumption against taking parental rights away from a parent. The other parent would need to be making seriously poor decisions in his or her life that negatively affect the child, and even then, that party may still get supervised visitations with the child until their negative decisions are repaired. This all being said, no court would intentionally put a child in serious danger if the danger truly exists, so getting Sole Physical Custody and Sole Legal Custody is not totally impossible in certain unfortunate situations.

Additionally, judges tend to prefer that the parties get along. Attorneys and judges alike recognize that feelings can run high between exes when it comes to the kids, but custody situations go so much smoother when each parent can take a deep breath and show that they are willing to compromise. Research shows that children benefit from having relationships with both of their parents, and Pennsylvania custody law always considers “the best interest of the child.” Therefore, even if you don’t like the child’s other parent, it is usually in your interest – and more importantly, your child’s interest – to let the child spend some time with the other parent too.

A Petition for Special Relief is a very versatile tool in Family Court. It is a section of law unique to Family Court, and can only occur where a case has commenced. In other words, it is not available to the general public, but can be brought in situations where the parties are already engaged in the court process.

The Petition for Special Relief is a means of bringing a unique or special question to the judge and asking for relief (typically in the form of an “Order of Court,” or an instruction from the judge to do something). It is often used when unusual situations arise in real life, and the law is not completely equipped to deal with those situations – in this regard, it is something of a “catch all.” The law says that, if a judge agrees with your Petition for Special Relief, they can temporarily change Physical or Legal Custody, direct that a party be brought before the court, direct that a party comply with an Order of Court, or otherwise order almost any appropriate interim or special relief. This means that the judge has broad discretion to help with special situations.

For example, imagine that Nancy and George have an existing custody case in the Court of Common Pleas. They both want more time with their two minor children. Then one day, without asking George or the judge, Nancy instructs both children to pack their bags and tells them that they are suddenly moving to another state without George. The older child becomes concerned, and gets out of earshot of Nancy to call George and explain the situation. If George acts quickly, he can ask his attorney to file a Petition for Special Relief, asking the judge to issue an Order of Court directing Nancy not to move away with the minor children. In this scenario, a savvy attorney may even file an Emergency Petition for Special Relief, meaning that, since a true emergency exists, the Petition can get bumped up the schedule and in front of a judge more expeditiously.

Unfortunately, situations similar to the above scenario occur all too commonly in custody cases. Pennsylvania law states that, once a custody case has commenced, parties are not allowed to “Relocate,” or change a child’s residence in any way which significantly impairs the ability of the other party to exercise custodial rights, without permission from the court to do so.

If you have an existing Family Division case and think a Petition for Special Relief might be right for your situation, give Thomas A. Will & Associates a call for your consultation.