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Divorce and Family Law Office of Joanne Kleiner

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Oct 05

Frequently Asked Questions about Separation in Pennsylvania

What You Need to Know about Separation in Pennsylvania

Question markAre you struggling in your marriage? Does it feel like you need some time to sort things out? Are you uncertain what happens when you file for legal separation instead of divorce? Here are some answers to basic questions about separation in Pennsylvania.

Q: What is a legal separation agreement?
A: A separation agreement is essentially a contract that sets forth the rights and responsibilities of the parties. It typically addresses custody and visitation, support, and the division of marital debts and assets. There is no requirement in Pennsylvania that the separation agreement be approved by the court.

Q: Do you need a legal separation agreement?
A: No. It’s not a legal requirement, but it is generally a good idea. Just because you haven’t filed
for a divorce yet doesn’t mean that there aren’t differences that need to be addressed in writing. Issues such as custody and support, who will have possession of marital assets and who will have responsibility for marital debts—all are less problematic if laid out in writing.

Q: Can the court invalidate a separation agreement?
A: Yes. If the court has reasonable belief that the agreement was entered into because of coercion, duress, undue influence, fraud, ignorance or lack of mental capacity, the court may rule that it is inapplicable. This rarely happens, though, as it can be extremely difficult to prove.

Q: Can the court unilaterally modify a separation agreement?
A: Unless the terms of the agreement address children or child custody, the answer is generally no. The only instance where that might happen is where a separation agreement is incorporated into a divorce decree.

Q: Can the parties make any agreement they choose regarding minor children?
A No. The court always has the discretion to change the terms of a separation agreement to protect the best interests of minor children.

Q: Can you collect alimony pursuant to a legal separation? If so, how much?
A: To collect spousal support, you must live in a separate household from your spouse, but it is permitted during a legal separation (no need to file a divorce complaint). As a general rule, the spouse with the higher income must pay either 40% of the difference between the parties’ wages (if there are no children) or 30% of the difference less any child support payments made.

Contact Attorney Joanne E. Kleiner

Let us help you protect your rights. Contact our office online or call us at 215-886-1266 to schedule a confidential consultation. We will help you stay focused on the issues that matter.

Oct 01, 2015

Dividing Retirement Plans in a Divorce

How Are Retirement Plans Divided in a Divorce?

It’s not unusual—you’ve been married for decades, raised your children to be adults, and then the marriage falls apart. You may both have worked and contributed to retirement plans, or there may have been a stay-at-home parent who now faces retirement. How will the court typically divide accumulated retirement assets?

The first and most important thing to understand is that the court will only concern itself with retirement assets that were accumulated or acquired during the time the parties were married. Any retirement accounts that were brought into the marriage will be considered separate property. At a minimum, contributions made before marriage will not be subject to division in a divorce, nor will contributions made after legal separation.

Determine the Type of Plan

How retirement assets will be divided will depend in part on whether the plan was a defined contribution plan or a defined benefit plan. With a defined contribution plan, such as an IRA, 401(k) or profit-sharing plan, the participant controls how much is put into the plan, but the amount of the payout depends on the performance of the investments into which the money was placed. With a defined benefit plan, the participant typically receives a fixed benefit based on a formula, which usually factors in earnings and years of service. Employers typically fund defined benefit plans, whereas defined contribution plans are often funded by the employee, with some level of matching funds contributed by the employer.

Identify When the Plan Was Initiated

If the plan was started before you were married, there will likely be a component that is separate property (the value before your marriage) and a component that is “co-mingled”—the increase in value, both from growth and new contributions, during your marriage. Any growth or contributions after the legal date of separation will also be considered separate property.

What is the Value of the Plan?

It’s customarily advisable to have an expert do a valuation of the plan, particularly when you don’t anticipate using it for some period of time. Typically, a defined benefit plan will be easier to value than a defined contribution plan.

How Will Assets Be Divided?

Once the value is determined, the court will attempt to ensure that both parties receive an equitable distribution of the retirement plan value. The courts prefer, if possible, to use an offset to accomplish a fair distribution, giving one party other assets to offset their interest in the retirement plan. For example, a non-working spouse may receive the house and some other property to offset allowing the working spouse to retain all retirement benefits.

If the court cannot find a way to offset the value in the retirement plan, it will typically enter an order that is binding on the company administering the retirement plan, indicating how the retirement assets will be divided. This order is known as a Qualified Domestic Relations Order, or QDRO.

Contact the Law Office of Joanne E. Kleiner & Associates

For an appointment, contact our office online or call us at 215-886-1266. Let us use our experience, skill, knowledge and resources to help you make informed and effective decisions.

Sep 22, 2015

What to Do When You Are Served with Divorce Papers

Take the Right Steps When You Have Been Served with Divorce Papers

When you have been served with divorce papers, you can be in a total state of shock. You’ll need to respond in a timely manner though, as the clock will start ticking once you receive the complaint. Here are some suggestions regarding how to respond when you suddenly become a party to a divorce.

Take Time to Get Your Bearings

Even if you knew the divorce was coming, it will likely be a highly emotional time. You can expect to feel a sense of loss or failure, or even anger. Your first thought may be to contact your spouse to either try to resolve your dispute or to vent, but don’t do it. Carefully read the complaint and then contact an attorney.

Hire Experienced Counsel to Protect Your Rights

You will want to find an attorney within a fairly short period of time. Typically, you will have 30 days to answer the complaint. It’s usually a good idea to talk to more than one lawyer. Make certain to ask a lot of questions, and be clear on exactly how much it’s going to cost you.

Compile All Financial Information

Financial information is often a focal point of a divorce. It will determine whether alimony is appropriate, as well as how much child support will be paid. It will also be a critical factor in determining how assets and debts are divided. Put together a folder that contains all information about bank accounts, investments, insurance, retirement plans and any marital debts and assets.

Consider How This Will Affect Your Children

If there are minor children in your home, consider how they will feel when they learn you are getting a divorce. Take great care that you don’t put them in the middle of your differences with your ex. Pay close attention for behavioral changes, and work hard to be available to answer their questions. Above all, make certain that they understand that they are not the cause of your differences with your ex.

Contact Us

Let us put our commitment, experience and dedication to work for you. To arrange a confidential meeting with an experienced Pennsylvania family law attorney, contact our office online or call us at 215-886-1266.

Sep 08

Dividing Complex Investment Holdings in Divorce

Dividing Complex Investment Portfolios in a Divorce

Wedding ring and divorce papersOne of the most challenging aspects of a divorce proceeding is often the division of marital assets, particularly if you have complex or diverse investment portfolios. Here’s what you should expect if you or your spouse hold a wide array of stocks, bonds, or other types of investments at the time of a divorce.

Step One: Determine When the Investments Were Made

Your lawyer will identify when the investments were initiated. Any investments made before the marriage will be considered separate property, though any growth in the value of the investment during marriage may be considered marital property, as will any contributions to those investments. For example, if you contributed to a mutual fund before and during your marriage, some of the value will be considered separate property, and not subject to equitable distribution. However, some of the value will also be considered marital property.

Step Two: Get a Fair Market Appraisal of the Value of the Investments

It’s best to hire an expert to prepare a valuation of the investment portfolio. An expert will be able to factor in anticipated increases or decreases in the fair market value of the portfolio.

Step Three: Determine Whether There Are Other Items of Property That Can Offset the Value of the Investment Portfolio

Dividing an investment portfolio can be extremely messy. As a result, courts prefer that parties come to agreements where the person retaining the investment portfolio agrees to relinquish any right in other property (a house or boat, etc.) in exchange for the right to leave the portfolio intact. There are, however, a variety of factors that can make this a complicated endeavor. The investments may have a more substantial potential for growth (and loss as well), or the other property may come with additional financial obligations (a home requires maintenance, etc.).

Contact Us

At the office of Joanne E. Kleiner & Associates, we have more than 25 years of family law experience. We’ll help you stay focused on what matters. To schedule an appointment with an experienced Pennsylvania divorce attorney, contact our office online or call us at 215-886-1266.

Sep 02

Obtaining Spousal Support or Alimony in a Divorce Proceeding in Pennsylvania

The Factors a Court Will Consider in an Alimony Proceeding in Pennsylvania

Mom at grecery storeThough alimony or spousal support is not as common in Pennsylvania as it used to be, courts still have the discretion to require that one spouse make payments to the other, either permanently or for a specific period of time. When determining whether alimony is warranted, the court will look at a variety of factors, including:

  • The length of the marriage
  • The current earnings of both parties
  • Any anticipated future earnings, gifts or inheritances by either party
  • The physical, emotional and mental capacity of both parties
  • The age of the parties
  • All potential sources of income for each party, including retirement plans, investments, medical /disability benefits
  • Whether there are minor children in the custody of one spouse, and that spouse is receiving child support
  • The standard of living to which the parties were accustomed during the marriage
  • The education, skills or training of each party as it relates to ability to be gainfully employed, as well as prospective income
  • Whether one spouse contributed to or gave up career opportunities to support the other spouse’s education, training or increased earning potential
  • Whether either or both of the parties engaged in marital misconduct during the marriage
  • The property each spouse brought into the marriage
  • The needs of both spouses
  • Whether one spouse acted as “homemaker”
  • Whether one spouse lacks property or income to meet his or her reasonable needs
  • The potential employability of both parties
  • The potential tax consequences of a grant of alimony

Though the court will review these factors, it is important to understand that there is no statutory requirement that a court order or refuse to grant alimony. It is entirely within the discretion of the court. In addition, there is no specific formula for calculating alimony—that is also at the discretion of the court.

Contact Attorney Joanne E. Kleiner

Let us help you protect your rights. Contact our office online or call us at 215-886-1266 to schedule a confidential consultation. We will help you stay focused on the issues that matter.