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How to Pay Child Support in Pennsylvania

by bvertz on Nov 10, 2011 • Comments Closed • , ,

“How do I pay my child support?” is a question I am frequently asked by clients. Pursuant to federal and state law, child support orders must be paid via wage attachment unless the support recipient agrees in writing to waive it. Even if the wage attachment is waived, the payments must be submitted to the Pennsylvania State Collection and Disbursement Unit in Harrisburg (which we call “SCDU” or “Ski-Doo”).

Federal law imposes a limitation on how much money SCDU can deduct from a payor’s wages: 50% of the payor’s net income if he is supporting a second family or 60% if he is not. If a support order exceeds the applicable cap, then the payor is required to submit a supplemental payment every pay period to make up the difference. This supplemental payment must be made through PA-SCDU in Harrisburg, not directly to the recipient.

The most common situation where the wage attachment is more than 50% is where the payor earns bonuses or overtime that are counted as part of his net income. Those bonuses or overtime are annualized or averaged over the course of a year when calculating net available income, but most paychecks are below average with a few “big” paydays during the year. Sometimes, when payors are paid bi-weekly (26 times per year), the same problem occurs.

Calculating the supplemental payment that the payor must submit can be challenging, but it can be done. Here’s how I do it:

1. First, figure out how much you are required to pay each pay period. The support order is expressed in monthly amounts, so multiply the monthly support order times twelve (x 12). This yields the annual support amount.

2. Next, divide the annual support amount by the number of pay periods per year. If you are paid bi-weekly, divide by 26. If you are paid twice per month on the fifteenth and thirtieth, divide by 24. If you are paid monthly or weekly, divide by 12 (monthly) or 52 (weekly). This calculation yields the support amount per pay period.

3. Next, subtract the “support amount per pay period” from the wage attachment that appears on your pay stub. The difference is the supplemental amount that you should submit.

PA-SCDU will accept payments by check, money order, credit card, or electronic funds transfer. There is lots of good information about paying child support on the PA-SCDU website.

Text Messages as Evidence in Child Support and Divorce Proceedings

by bvertz on Sep 30, 2011 • Comments Closed • , , , ,

The increasing use of electronic communications, from Facebook to text messaging, has challenged our courts to determine what is admissible evidence in family law hearings. The Pennsylvania Superior Court has recently considered that issue in a criminal proceeding where text messages were introduced to prove the defendant’s intent to deliver illicit drugs in his possession. In Com. v. Koch, 2011 Pa.Super. 201 (September 16, 2011), the Superior Court acknowledged that text messages and other forms of electronic communications are not inherently unreliable, despite their relative anonymity and the difficulty in connecting them with their author. Yet, the litigant who offers such evidence must prove that they are authentic and overcome hearsay objections. Usually, this must be proven through circumstantial evidence.

It is not enough to prove that a text message was transmitted from a particular phone number, because anyone could have been using that phone, unless the circumstances or the message itself prove that the phone’s owner was the actual author of the message. A text message might contain factual information or references that are unique to the author. Or, perhaps it can be established that the message was transmitted while the phone was in the owner’s possession. The same standard applies to emails and instant messages. In addition to proving that the message was transmitted from the owner’s account, it must be proven through circumstances that the owner of the account was the author of this particular message. If the authenticity of the message can be proven, the text message or email can be used as evidence.

In the Koch case, the police found the defendant’s mobile phone in his home and reviewed his outgoing text messages, some of which were incomplete or deleted. The police offered no proof to show that the phone’s owner was the author of the messages, some of which referenced the defendant in the third person. There was also evidence that some persons other than Defendant sometimes used that mobile phone. The Superior Court in Koch held that the text messages should not have been admitted into evidence in the criminal proceeding until they were properly authenticated. The Court reversed the conviction for a new trial.

Pennsylvania Child Support Guidelines Amended

by bvertz on Sep 22, 2011 • Comments Closed • , , ,

The Pennsylvania child support guidelines were modified slightly on August 3, 2011, effective September 3, 2011.

1. Shared Custody Adjustment. The guidelines grant a reduction in child support for parents who have custody of their children 40% to 50% of the time. (No adjustment is authorized if a parent has custody less than 40% of the time.) Still, the guidelines did not explain how to apply this adjustment when there were multiple children with different custody schedules. Now, in cases where there is more than one child, and each child spends different amounts of time with each parent, the Rules require the court to take an average percentage. If the average percentage is more than 40%, then the reduction in child support will be applied. The modified rules also clarify that high income cases are subject to the shared custody adjustment.

2. Medical insurance premiums. A sentence has been added to the medical insurance provisions of the child support guidelines to clarify that the insurance premium paid by the parent who owes child support shall not be allocated between the parents.

3. Social Security benefits. The guidelines previously provided that Social Security benefits being received by a child would be added to the parents’ net incomes and then deducted from the child support award. A sentence has been added to state that this applies only if the parent who receives child support is receiving the Social Security benefit for the child. If the parent who pays child support receives the benefit, the benefit is added to that parent’s income and is not deducted from the child support award.

4. Right to initiate support. The new rules provide that a parent or spouse who owes support may initiate the action, which is a significant change from the past that allows a support-owing spouse to obtain the tax advantages of a written order. The parent who has primary custody is the parent who will receive child support. In cases where custody is shared equally, the parent who has less income will receive child support.

Additio

Homeschooling Children Does Not Justify Alimony, says Superior Court

by bvertz on Mar 19, 2011 • Comments Closed • , , , , ,

In Kent v. Kent (March 18, 2011), the Superior Court of Pennsylvania rejected a parent’s argument that she should be entitled to collect alimony for a period of eleven years so that she could continue to homeschool the parties’ minor children. It was undisputed in this case that the mother had withdrawn from the workforce five years earlier in order to home-school the parties’ children, which she continued to do up to the date of trial. The wife had resigned her position as a teacher and began to collect a reduced public pension in order to supplement the family’s finances. The husband argued that homeschooling was not a joint decision and did not require so much of wife’s time as to prevent her from working. The trial court awarded alimony to wife for a period of three years rather than the requested eleven years.

On appeal, the Superior Court cited the paucity of controlling case law. The Court observed that a body of law concerning the payment of private school tuition (Fitzgerald, Gibbons, et al) did not control, since those cases were governed by the child support guidelines, not the statutory alimony criteria (where a spouse’s ability to become self-supporting through appropriate employment is paramount). Instead, the Court relied upon a decision of the Arkansas Supreme Court, holding that alimony was appropriate where the homeschooling parent had no employable skills, education or experience.

Examining the wife’s work history in this case, the Superior Court affirmed the trial court’s finding that the homeschooling wife was capable of returning to work within three years. The Court also endorsed the husband’s reasoning that economic decisions made during coverture might no longer be viable when an intact family breaks into two separate households. The Court emphasized that its decision was not motivated by a policy against homeschooling, but a simple affirmance of the trial court’s application of statutory criteria.

Divorce – Your First Legal Strategy Decisions

by bvertz on Feb 17, 2011 • Comments Closed • , , , , , , ,

The initial weeks of a marital separation are probably the most turbulent, uncertain part of the divorce process. The first few choices that spouses must make when they are contemplating divorce are important legal strategy decisions that require thoughtful consideration. Your divorce lawyer can help to assess the risks and possible consequences of those initial decisions.

1.   Move out or stay put? Pennsylvania doesn’t recognize a legal separation as some states do. Still, it is possible to be separated in the eyes of the law while living together under the same roof. A spouse who moves out must decide where to move, whether to take the children or property, and how the move might affect finances and custody arrangements. Spouses who stay put must be prepared to pay expenses for the marital residence during the separation period, as well as the possibility that the other spouse might refuse to move away, creating an uncomfortable standstill.

2.  File divorce or wait? Filing a divorce action is important in some cases where there is a need for the court’s assistance in freezing bank accounts or credit cards, obtaining financial records, or seeking exclusive possession of the marital residence. On the other hand, there may be a financial advantage in simply collecting support during the separation period without starting a divorce battle.

3.  Attempt reconciliation or stay apart? Repairing a broken marriage isn’t easy, but some have done it. Still, attempting to reconcile may have unintended legal consequences that must be considered. Reconciliation might delay the official separation date, which affects the value of marital property and the ability to finalize a divorce. The law generally does not permit spouses to have it both ways by preserving a separation date while attempting to reconcile. Some couples sign post-nuptial agreements to settle their financial disputes in case their reconciliation does not work out.

4.  Withdraw funds or leave them? Joint bank accounts and credit cards are common battlegrounds in the initial phase of divorce. Making withdrawals from joint accounts or charges on joint credit cards might be viewed as a hostile tactic, but a spouse who would otherwise be penniless might have no other choice. Conversely, raiding a joint account might deplete the good will needed to work out a settlement.

5.  Who to trust? Trust is one of the first casualties of divorce, so you need to find reliable allies. Consider supportive friends and family members who are able to keep your confidences and empathize with your feelings. Physical activities like exercise can reduce stress more effectively than alcohol or junk food. Hire a family lawyer that you feel comfortable with. It is important to understand what your lawyer is saying and to be heard when you speak to your lawyer. Consider lawyers who concentrate their practice in divorce and know the nuances of this complex area of legal practice.

Divorce and Guns – Can They Backfire?

by bvertz on Jan 28, 2011 • Comments Closed • , , , , , ,

A recent decision by the Superior Court of Pennsylvania, Smith v. Yusavage (unpublished), got me thinking about the problems surrounding gun ownership for spouses facing marital separation or divorce.

In Smith, one of the unmarried partners filed a Petition for Protection from Abuse (PFA) seeking a restraining order and eviction from their shared residence. Most of the allegations of abuse sound like the kind of shouting matches that might occur from time to time in many relationships. One striking feature of the testimony, however, was that one of the partners applied for a concealed weapons permit, and the other partner would not support the application because of safety concerns. This evidence, in my mind, seemed to convince the judge to issue the restraining order. The Superior Court affirmed.

(In an interesting side note, the Superior Court refused to consider the arguments made in pages 71-122 of the defendant’s brief because they exceeded the 70 page limit imposed by appellate procedural rules.)

I have seen cases where firearms mysteriously disappear after a marital separation, probably because they have been disposed by a spouse who is fearful. More than once I have heard of valuable guns being thrown into the trunk of a car without proper care and handling, diminishing their value. And Smith demonstrates that judges might be cautious about guns and their owners in the context of heated marital disputes.

My advice: if you are facing marital separation or divorce, consider whether to store the guns in a locker at a sporting club or a gun dealer, away from the marital residence. At the very least, if you keep them in your home, be sure they are properly stored under lock and key, away from children, where they do not present a threat to anyone. Your guns can be used against you, even if they are never fired. If the guns are registered in your name, and your spouse disposes of them improperly, could you be connected with their misuse in someone else’s hands? Will improper gun storage have an impact on your custody request? Can you satisfy a judge that there is no chance that your guns could be used to harm anyone? These questions are worth considering.

Lump Sum Divorce Payment: Exempt Property in Bankruptcy

by bvertz on Sep 9, 2010 • Comments Closed • , , , ,

In Re Miller, 424 B.R. 171 (M.D. Pa. 2010)

Wife/Debtor filed a chapter 13 bankruptcy petition, in which she attempted to classify an “income maintenance award” of $88,500 received in a divorce decree as property exempted from the bankruptcy estate.  The divorce decree provided that Wife was to receive $88,500 cash in order to effectuate a 67%/33% division of marital property.  Next, Wife’s former divorce lawyer filed a proof of claim for unpaid legal fees and objected to Wife’s schedule of exemptions, claiming the lump sum cash award was not exempt under 11 U.S.C. § 522(d)(10)(D).  The Chapter 13 Trustee also filed objections to Wife’s exemptions, asserting the same grounds as her former lawyer.  Wife and her former lawyer stipulated that the forty-seven page report by the divorce master was incorporated into the divorce decree at issue.

In the report, the divorce master specifically stated that the husband’s obligation to Wife was for “necessary living expenses, including the mortgage, taxes, insurance, and upkeep on the marital residence” and that it “‘should not be dischargeable in bankruptcy.’” In awarding 67% of the marital property to Wife, the master found Wife had no job skills, and at the time, was making $1,300 per year cleaning houses.  The master awarded Wife alimony for the period of two years so that she could obtain additional education and employment during that time.  At the time when the matter came before the bankruptcy court, however, Wife had not received additional education and was not employed.

The bankruptcy court began its’ analysis with a discussion of 11 U.S.C. § 522(d)(10)(D), which provides “alimony, support or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor…may be exempted under subsection (b)(2) of this section.”  The court noted exemptions are broadly construed, and the burden is on the party objecting to the exemption to prove the exemption is not available. The court considered three possible approaches to determining whether the obligation in Wife’s divorce decree was in the nature of support.

The court first considered In re Gianakas, 917 F.2d 759 (3d Cir. 1990), which held that federal law, not state law, determines whether a divorce obligation is in the nature of support, maintenance or alimony. The Third Circuit in Gianakas set forth a three-part test to determine the nature of whether an obligation is alimony, maintenance or support.  Yet, the bankruptcy court in Miller noted that Gianakas had addressed the discharge of a debt under 11 U.S.C. § 253(a), not a property exemption claim  under 522(d)(10)(D).  Further, Gianakas dealt with the dischargeability of an obligation under a consentual agreement rather than a court-imposed divorce decree.

Before applying the three factors set forth in Gianakas, the Miller court discussed two alternative approaches to defining support obligations in the context of a discharge determination from other federal courts.  The court reviewed the Fifth Circuit’s decision in In re Evert, 342 F.3d 358 (5th Cir. 2003), which set forth four criteria for determining whether divorce-related debts were exempt under § 552(d)(19)(D).  The Evert court held that if:

in the agreed divorce decree there is 1) also a meaningful separate alimony provision, 2) the obligation in question is described as being part of the property division, 3) the label given to the obligation in question is matched by its actual characteristics, and 4) the evidence does not suggest the parties conspired to disguise the true nature of the obligation in order to subvert the bankruptcy or tax laws, then the label given by the state court is sufficient and there is no need to look behind it to determine whether it is really alimony or a property settlement.

Evert, 342 F.3d at 368.  The Evert court concluded that the Gianakas factors should be applied only when the settlement agreement is ambiguous.  The Miller court, however, disagreed with Evert holding that a bankruptcy court must accept the state court’s characterization of an obligation unless the marital settlement agreement is ambiguous.  For these reasons, the Miller court rejected the Evert approach.

The Miller court next considered the approach taken by the District Court for the Eastern District of Michigan in In re Harbaugh, 257 B.R. 485 (E.D. Mich. 2001).  The Michigan court relied upon the legislative history of § 552(d)(10)(D) in holding that the parties’ intent behind the marital settlement agreement or the intent of the court issuing the order should be paramount in characterizing a divorce obligation.  The Harbaugh court found “Congress intended for section 552(d)(10)(D) to exempt only those monies, and potentially other equivalent awards, that concern general spousal sustenance” and therefore, the court should exempt only those payments from “the bankruptcy estate that (1) are intended by the parties or the state court to support a spouse and (2) are, in the judgment of the bankruptcy court, reasonably necessary for such purpose.” Harbaugh, 257 B.R. at 491.

The Miller court eventually endorsed the three-part Gianakas test to determine whether a divorce obligation is an exempt property under 11 U.S.C. § 522(d)(10)(D). In doing so, the Miller court pronounced its intent to avoid inconsistency with the standards by which dischargeability is judged under § 253(a). Applying the first part of the Gianakas test, the bankruptcy court first considered “the language and substance of the agreement in the context of surrounding circumstances, using extrinsic evidence if necessary.” Miller, at 177, citing Gianakas, at 762-63. Wife’s former divorce lawyer argued that the lump sum cash obligation was not support because it was set forth in a section of the master’s report entitled “Discussion and Conclusions of Law with respect to Equitable Distribution.”  Wife conceded that the sum was awarded in this section of the report, but asserted that he substance of the master’s report indicated the award was for the purpose of support.

Applying the second and third factors in Gianakas, the Miller court considered the “parties’ entire financial situation” and “the function served by the obligation at the time of the divorce or settlement.”  Miller, at 177, citing Gianakas, at 762-63.  The court held that it was “crystal clear” that the lump sum distribution to Wife was not only “related to” her support but “founded upon that need.” The court also noted that Wife’s lawyer, by stipulating to the master’s report, had thereby stipulated that the award was necessary to support Wife.  Considering the parties’ financial situation, the court noted the disparity between the parties’ incomes and earning capacities, as Husband earned far more than Wife at the time of the master’s report and at the time of the court’s opinion.  The court also noted the fact that the award was intended to pay for the necessities of life while Wife obtained additional education and employment.  Based on these factors, the court concluded the divorce obligation “was intended by the state court to serve as support and was not a division of property.” Miller, at 178.  Based on this finding, the court allowed Wife to exempt the $88,500 award from the bankruptcy estate and overruled the objections of Wife’s former counsel and the Trustee.

Should You Prepare for Custody Mediation?

by bvertz on May 8, 2010 • Comments Closed • , , , , , , , ,

The Jon and Kate divorce provided another example this week of what to do – and what not to do – in divorce situations. The Gosselins were ordered this week to attend mandatory co-parenting classes in Berks County.  Allegheny County and most surrounding counties in Western Pennsylvania have a similar program. In Allegheny County, it is known as the “Generations” program.

The Generations program, part of the Child Custody Department, is a mandatory two-part process for individuals involved in a custody dispute. This alternative dispute resolution program includes an educational seminar for adults, an interactive group for children ages six through fifteen, and a mediation orientation session.

The adult education seminar of the Generations program is approximately three hours in length and offers parents/caregivers the skills to reach their own resolution on custody issues. The following topics are addressed:

  • How to build a co-parenting relationship
  • How to communicate and problem-solve
  • How to help children cope effectively with their changing family
  • Identify how parent/caregiver conflict can affect the behavior of children
  • Understand that most children do best when they have the opportunity to know and love both parents
  • General overview of the mediation session

The children’s group serves children between the ages of six and fifteen years old. Children are appropriately grouped by age so that they can identify and share with peers similar experiences in their families. These groups are facilitated with activities, discussions, art, music and play.

Later in the week, after being ordered to attend parenting classes, Jon Gosselin was spotted in a mall bookstore, reviewing a copy of Kate Gosselin’s latest book, “I Just Want You to Know: Letters to My Kids on Love, Faith and Family.” Perhaps he was looking for dirt to use against Kate in the mediation.

I generally advise clients not to go to the Generations mediation with a chip on their shoulders. It is really not productive to enter mediation with a laundry list of “wrongs” perpetrated by the other parent. It does not impress the mediator. Remember that even if the other parent confesses to a murder during the mediation, the mediator cannot be called to testify. Concentrate instead on telling the mediator what custody arrangements you want, focusing on how your plan will benefit the children. If you keep your focus on the kids and why your proposal is best for them, you are much more likely to get good results.

Another State Stops Child Support for College Students

by bvertz on May 1, 2010 • Comments Closed • , , , , ,

A decision issued two weeks ago makes South Carolina the latest state to overturn its laws granting child support to college students. In Webb v. Sowell (April 19, 2010), the South Carolina Supreme Court held that the law could not treat separated or divorced parents differently than married parents, who have no legal obligation to pay their children’s college tuition. Such laws, it held, violate the equal protection clause of the federal and state constitutions, and no rational basis exists for treating divorced or separated parents differently. This decision, from which two justices dissented, struck down more than thirty years of law in South Carolina.

Nearly twenty years ago, the Pennsylvania Supreme Court reached a similar conclusion in Blue v. Blue, 432 Pa. 521, 616 A.2d 628 (1992). Interestingly, the Pennsylvania Supreme Court had never touched the issue before Blue, even though trial and appellate courts had been awarding college support in Pennsylvania since 1963. South Carolina’s top court, on the other hand, had granted college support in 1979, reversing itself this year.

Legislative efforts in Pennsylvania following Blue resulted in a statute granting college support to the children of separated and divorced parents. The Pennsylvania Legislature made findings that the children of separated and divorced parents have special needs and circumstances which justify a different treatment than the children of intact families. The Pennsylvania Supreme Court disagreed, striking down the law in Curtis vs. Kline, 542 Pa. 249, 666 A.2d 265 (1995). The law remains on the books but has no legal effect due to the Curtis decision.

Premature Termination of Child Support Reversed, Affirmed

by bvertz on Apr 27, 2010 • Comments Closed • , , ,

In the recent Superior Court decision, Castadi v. Castaldi, the Domestic Relations Section mailed notices to the child’s mother inquiring whether child support should terminate in January 2007, when the child would be eighteen years old. Mother did not respond to the inquiries, and the Domestic Relations Section terminated child support. Unbeknownst to the DRS, the child had not yet completed 12th grade.

In the summer in 2007, the mother contacted DRS and notified them that the child had not graduated high school until June 2007. The DRS administratively amended the support arrears, adding an additional 6 months of arrears for which the father was responsible. The father filed a petition seeking to rescind the additional arrears, which was denied by the trial court. The Superior Court affirmed.

In its opinion, the Superior Court first confirmed that the child support order should have continued until the later of the child’s 18th birthday or high school graduation. The Court distinguished Style v. Shaub, in which the DRS administratively terminated child support after the child had turned 18 and graduated from high school. The Court held that DRS had continuing jurisdiction pursuant to Section 4352(e) to amend the arrears and was authorized to correct its error in terminating child support prematurely. The Court held that the mother was not estopped by failing to respond to the DRS inquiries.