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Planning Ahead: Why Your Estate Plan Should Be More Than a Simple Will (November 2013)
In a 'no-fault grounds' divorce, neither spouse is required to prove "fault" or marital misconduct on the part of the other. To obtain a divorce a spouse must merely assert incompatibility or irreconcilable differences, meaning the marriage has irretrievably broken down. This means there is no defense to a divorce petition (so a spouse cannot threaten to "fight" a divorce), there is no derogatory testimony, and marital misconduct cannot be used to achieve a division of property favorable to the "innocent" spouse. No-fault divorces under Section 3301(c) of the Divorce Code require separate consents signed by both the husband and wife. The consents may not be signed and filed until 90 days after the filing of the divorce complaint. The purpose of the waiting period is to permit an emotional cooling down.
Under a 'fault grounds' divorce the injured party must have a hearing to prove that they are the innocent and injured spouse and not at fault and that the misconduct by the other spouse such as bigamy, adultery, desertion, insanity or conviction of a crime, caused the breakdown of the marriage.
A no-fault divorce under Section 3301(d) of the Divorce Code requires that the parties be separated for a period of two (2) years. After such separation, either the wife or the husband may ask for a divorce on the signature of one of the parties.
The date of separation is critical and, on occasion, the husband and wife can be considered separated for the purposes of divorce, while living at the same address.
As with a Section 3301(c) divorce, the Divorce Decree will usually not be granted until there is a resolution of the issues involving the division of property, alimony and/or attorney's fees. If the parties can reach a resolution of all of these issues, they can be divorced after ninety (90) days have expired from the date that the Divorce Complaint was filed and served upon the other party.
Mediation is an alternative to litigation that offers a safe environment to confront differences and resolve them. Another alternative is the collaborative approach, which involves both parties and their attorneys entering into a contract with the goal of reaching a resolution without litigation.
The more information you have at the beginning, the easier and more efficiently we can all proceed. Use our domestic relations organizer to get started. In addition to your own personal data, we will also need to have:
Under Pennsylvania law, the term "alimony" always refers to post-divorce periodic payments and is awarded after the divorce is final. Spousal support can be awarded prior to the divorce if both parties are separated.
While this is, indeed, a possibility, it rarely happens as the party petitioning for spousal support must prove that his/her spouse has a greater earning capacity than the petitioning party and, at the same time, is not contributing anything toward the household debts while the parties are living together under the same roof.
Retirement benefits consist, generally, of lump sum accounts such as 401(k) plans, profit sharing plans, etc. It is relatively easy to calculate the 'marital property' portion of these accounts, and they generally can be disbursed pursuant to a divorce settlement through an actual distribution or through a Qualified Domestic Relations Order (QDRO). The other retirement benefit is a pension plan which provides for an income stream over the life of the party beginning at a particular age. The 'marital property' portion of these plans is more difficult to calculate as they need to be reduced to a present value in the context of the life expectancy of the individual, interest rates, etc. The parties should employ an actuary to make these calculations. While these plans cannot be disbursed for a divorce settlement in a lump sum fashion, a QDRO can be used to provide that some or all of the income stream be distributed to the other spouse when the payments begin.
Generally, a seller owes two percent (2%) realty transfer tax when he/she sells property. However, there are many real estate transfers that are exempt from the realty transfer tax. The most common exemption from realty transfer tax is a transfer between immediate family members. For example, a transfer between married persons in the context of a divorce is exempt from realty transfer tax.
Mediation is intended to facilitate decision-making where each side has an opportunity to speak openly and to be heard. The mediator's role is to facilitate and guide the process. The goal is not to replace attorneys or other professionals but rather to work with them to the extent the parties need.
Divorcing couples can mediate custody, distribution of assets, alimony, child support and other issues they choose to address. Parents who were formally married or never married can use mediation to address custody issues. Same sex couples can use mediation to address the myriad of issues that arise in resolving their relationship. The goal of the process is to allow each couple to explore the issues that are most important to them and reach resolutions that make sense to them, not a resolution imposed from the outside.
A trend has been detected that for many reasons, including the baby boomer phenomenon, more divorces are being seen in couples age 50 and older. Not surprisingly, older couples face different issues when contemplating a divorce than young couples do.
Since most of these couples have grown children, and many have already paid off the college tuition bills, the concerns of the older divorcing couple are much different from those of a young couple with school-age children. Older couples tend to have more assets than younger couples, and those assets are held differently. They are more likely to own their own home mortgage-free and to own a second home, and these aspects must be carefully considered by the divorce lawyer in settlement negotiations.
In most instances, a greater portion of the older couple's assets are tied up in retirement plans. One spouse may be relying on the retirement benefits accrued by the wage-earning spouse, since she had interrupted wage earning years to raise the children. Also, retirement benefits are a primary concern for seniors whose peak earning years are behind them, since they may only have a few additional years to accumulate earnings and benefits, and/or may soon need to draw on those funds. For this reason, the focus on senior divorces must be on retirement planning.
Another area that can be of great concern to divorcing seniors is that of health insurance, as Medicare is not available until age 65 years. A little cooperation and creativity, as well as particular attention of the divorce lawyer to the issue, can solve some of these problems, especially for the spouse who has no health care benefits of her own.