Whether it is from TV shows, movies, or stories from friends, people who are unacquainted with the divorce and custody process often come to initial consultations with attorneys with certain expectations that are, well, based on myths. Here are the most common myths that have made the top five list:
I didn’t work during the marriage so I will receive lifetime alimony: Alimony is available in Pennsylvania, but it is what is known as a “secondary remedy”—secondary to asset distribution. This means that the court attempts to fix financial disparities with assets first—potentially by “skewing” the distribution percentage (giving one party more than 50% of the estate)—which leads to the next myth.
Assets are always divided 50/50: Pennsylvania is an equitable distribution state, not an equal distribution state. That means that courts will look at several factors to determine what is fair in an effort to promote “economic justice.” Those factors include contributions to the marriage (economic and non-economic), the relative financial status of the parties, sources of current and future income, and other similar considerations. It may well be that a 50/50 division of assets is fair; but the court can award one party a higher percentage of the estate if the circumstances warrant.
The party filing for divorce pays the other person’s fees: Typically, each party pays for their own legal fees. There are several exceptions to this general rule, such as when one party acts in bad faith or there is an extreme disparity in financial circumstances. But those exceptions are somewhat rare.
I had an affair so I deserve less/ my spouse had an affair so I deserve more: Although the reasons why the marriage ended are a factor in an alimony case, the “moral” issues leading to divorce increasingly do not move the needle one way or the other. Read More
The closure of the Studebaker-Packard Corporation car manufacturing plant in 1963 was a major catalyst leading into the enactment of the Employee Retirement Income Savings Act of 1974 (“ERISA”), which became effective on September 4, 1974. This pension plan had promised generous benefits for the participants, but the plan was severely underfunded and was not able to cover the benefits for many of the employees vested in the plan. The failure of the Studebaker pension plan, along with a high profile conviction of infamous Teamsters boss James Hoffa on pension fraud, drew the attention to pension plan corruption and mismanagement and spurred talk of reform and regulation in Washington, DC. Ryles, Eric (December 3, 2018). “The History of the Employee Retirement Income Savings Act (ERISA)”. Judy Diamond Associates, Inc. Retrieved May 3, 2022.
Just over a decade later, ERISA was codified in the United States Code.[1] Being in the year of its 50th anniversary date, it is appropriate to update this article that author Robert D’Anniballe previously authored.[2] This article, like the original article, is not intended to suggest that ERISA has been a complete failure. Like other laws, ERISA has limitations and lacks flexibility in achieving its intended goals. The decline of the number of American workers covered by defined benefit plans illustrates how this legislation that was intended to protect participants of defined benefit plans has instead reduced the continued availability and utilization of those plans in the industrial and manufacturing sector. Specifically, airline, steel, and trade & craft workers, among others, have faced significant challenges in the funding and perpetuation of benefits provided by these plans.
Defined benefit plans have become associated with being expensive and inflexible. The funding requirements on an annual basis are not predictable due to volatility experienced in market returns and changes in employee censuses of the plan sponsor. Read More
For divorce lawyers, Valentine’s Day means two things: engagements and prenuptial agreements. While others are throwing away wilted roses and finishing off the last few chocolates from heart shaped boxes, divorce attorneys are fielding calls about prenuptial agreements.
As I discussed in “Getting Married? Four Reasons Why You Need a Prenuptial Agreement,” here are four reasons you need a prenuptial agreement before you exchange your vows:
You want to simplify your divorce (if you ever need one);
You want to protect your business;
You want to protect your home, retirement and other assets; and
You want to protect your children’s inheritance in the event of your death.
While I am not suggesting you ask for a prenuptial agreement on Valentine’s Day, it is never too early to start thinking about whether you need one and what you want to protect. It is no fun to be doing last minute wedding planning and negotiating a prenuptial agreement at the same time. Get it done so you can focus on the fun stuff: the wedding, honeymoon and the marriage!
If you are interested in finding out whether you need a prenuptial agreement, contact us to get started. Read More
Pietragallo partner Carla Schiff Donnelly was trained in mediation years ago and has participated in more than 100 mediations. Mediation is one of the best tools to resolve a family law matter. She recently took a refresher course for mediators to further hone her skills and learn more techniques to help couples navigate their family law issues.
Here are some of the advantages to mediation that Carla has learned:
Lower Cost
Although she recommends that both parties consult lawyers, mediation is far more economical than having the court resolve your issues. As a litigator, she knows how expensive court time can be. Just a simple status conference can cost hours of attorney time for both parties. You need to prepare for the conference, get there early, often wait because the court is running behind, and then travel back to the office. Even if the lawyers participate in the mediation, you are still saving time and money.
Control the Outcome
If you go to court, a stranger will be deciding where your children will live and how much money you will receive. You may win on issues you care less about and lose on what is most important to you.
Better Outcomes
The court will divide your money and children with the equivalent of a meat cleaver. Mediation gives you the opportunity to divide money and time with your children with the precision of a scalpel. Sometimes what works best for you and your family is not what a court will order.
Confidentiality
Mediation is a confidential process. Court is not confidential. Do you want your dirty laundry aired out at the courthouse?
Compliance
If you enter into an agreement voluntarily, you are more likely to adhere to it than you are with court-imposed resolutions. That means your ex is more likely to comply too. Read More
Divorce attorneys see an uptick in new client calls come January each year. Some bide their time in order to get through the holidays for the sake of the children. For others, the stress of the holidays can cause the straw that breaks the camel’s back. Many, however, see a new year as time to leave behind what makes them unhappy, be it bad habits or an unhappy (or abusive) marriage. That is where the New Year’s Resolution comes in.
As a divorce lawyer for many years, I am often asked if I recommend marriage counseling to my clients. My answer is yes, if it indicated. Unfortunately, the times I have recommended marriage counseling are few and far between. That is because of all the time and contemplation that goes into making the call to a divorce attorney in the first place. By the time a client comes in to see their lawyer, they have often been unhappy for a long time and their marriage is beyond repair.
Ambivalence and fear prevent people from coming to us sooner. New Year’s Resolutions can be the push they need to make the call. The “funny” thing is, once the client comes in, they often regret not coming in sooner. Their questions are answered and the process is less daunting and mysterious. As we get up from the conference room table it is not unusual to hear “I feel so much better than I did when I got here.”
The Next Chapter
If your resolution is to leave your marriage, contact us to set up a plan to get started. Also, you may find helpful to read about what to expect at an initial consultation.
In the meantime, if you are not familiar with your finances, this may be a good time to look around for tax returns, pay stubs and other documents that may help you get a clearer picture. Read More
Your initial consultation with an attorney is your time, especially if you are paying for it. The goal of an initial consultation is to have the client leave with all of their questions answered and a game plan for moving forward in the short term.
Getting Started
We start by asking some introductory questions so that we can understand what prompted you to seek legal counsel and to determine what issues need to be addressed first. After we gather enough basic facts, we then give you a “lay of the land” in terms where the law fits in with your situation. We then try to come up with a short-term game plan and address your questions.
It is not unusual for clients to have no or little information about their finances. That is okay. You probably know more than you think. We also have various ways that we can gather that information for you over the course of your case.
What to Bring
As far as what to bring, there is no set list. Most of the time, it is okay not to bring anything. The exception would be if you have been served with papers. In that event, it is a good idea to bring those papers with you.
Some clients bring tax returns, pay stubs, bank account statements and other documents that are concerning to them. Certainly, the more documents you bring the more specific feedback your attorney can provide.
Bring anything with you that you want us to look at, and feel free to bring a friend or relative for moral support.
Fee arrangements
At the end of the consultation, we will discuss a fee arrangement should you decide to retain our services.
A question we are asked frequently is why are our consultations not free. There are a few reasons. Read More
Year-end and the beginning of the New Year are good times to check in on your family law matters. Myriad events might be triggered as the calendar switches over. A little pre-planning can avoid unpleasant surprises or unnecessary emergencies later. We like to remind our clients of a few things, including:
Save and send us your December 31 pay stubs and your Forms W-2 and 1099. Parties are required to report to the Domestic Relations Office any material changes in circumstances with their incomes. Failure to report these changes can result in sanctions at a future support hearing, depending on the impact of these changes on existing support orders.
Assemble and send us documentation of joint expenditures you and the other parent might share, such as: unreimbursed medical expenses; tuition and other related academic fees; activity fees and related expenses. If we need to seek reimbursement for medical expenses, we must do so and provide the documentation before March 31. Though there is no similar rule for other shared expenses, your agreement or order might direct those arrangements.
If your divorce case is still pending, please send us year-end statements from retirement, bank, and investment accounts, especially if they reflect the full year’s activity. This will help us keep up to date on the components of the marital estate.
Consider or confirm what your tax filing status will be, especially if you will still be married by December 31. Some agreements or court orders may direct parties’ filing status or the child tax credit. Check in with your accountant to explain these matters with you.
Determine whether alimony terminates or otherwise changes as the calendar turns. We may need to obtain an order to change a wage attachment, or we may need to notify the other party’s counsel.
Check in on your custody orders – does the New Year direct changes in the holiday or vacation provisions? Read More
Divorce and custody issues can make Christmas and other holidays stressful for parents. Children are very perceptive and will feel your stress. Here are some ways to lower your stress and survive the holidays:
Focus on new traditions. Christmas will never be the same as it was when you were married. Maybe that is a good thing. As I talked about in my Halloween post, focus on your favorite traditions and cut out the ones you went along with for your spouse. So, if you hated spending the day traveling to visit family members, skip it this year. Instead, do something you enjoy like spending the whole day baking cookies, sipping eggnog and listening to Christmas music. Never liked that fake tree, go cut down a real one.
Decide if you can handle spending some of the time together. Sometimes, even in contentious divorces, parents decide to spend Christmas Eve and Christmas morning together. If you can make it about the children and not be tense, have it. If you have doubts that one or both of you will behave, it is best to divide the time.
Figure out the schedule ahead of time. Do not wait until Christmas Eve to decide who gets the kids when. If you both want Christmas Eve, try to figure out a compromise such as alternating who gets Christmas Eve each year. You can also work in other holidays. For example, you can agree that if you get Christmas Eve, your spouse gets Christmas Day and/or Easter Sunday. Be flexible, your children will thank you.
Coordinate gifts. It is not fair to your children if you both buy them the same thing. Worse yet, focusing on topping the other parent takes the spirit out of the holiday.
Talk to your kids, appropriately. Open and honest communication with children is best. Read More
Halloween has always been a special holiday for children, and parents enjoy reliving it through their eyes. However, divorce can put a damper on things if the parents do not plan ahead and work together. Here are some tips to help things go more smoothly:
Decide who is doing what for the costumes.
It is no fun for kids if their parents are too busy fighting over who is doing what when it comes to the costumes. Take your ego out of it. If the other parent really wants to take the lead on the costume let them and agree you will take the lead next year. Or, if you have more than one child, you each are in charge of one of them.
Determine if you are both going to trick or treat together.
The determinative question is whether both of you can get along and make it a positive experience for your child. That usually means being willing to leave your new significant other out of the picture. Remember, the focus is on your child and not to make your ex jealous or upset. If you cannot make it a positive experience, it may be better to alternate years.
Determine where you are trick or treating.
If you are both still living at home, this one is easy. If you are now living in separate homes and both neighborhoods trick or treat at the same time, you have to select a location. Think of this from the child’s perspective. Do they have friends in the new neighborhood and feel excited about it? Would they rather spend their first Halloween where it is familiar?
Remember that divorce is an opportunity to create new traditions.
If you do not have your children on Halloween, you can still create new traditions around the holiday and the fall season. Read More
On July 18, 2023, the Illinois Supreme Court denied a rehearing on the issue of Biometric Information Privacy Act (BIPA) accrual. The request for rehearing derived from an opinion by the 7th Circuit, Cothron v. White Castle System, Inc., 20 F.4th 1156 (7th Cir. 2021), holding that “separate claims accrue under BIPA each time a private entity scans or transmits an individual’s biometric identifier or information in violation of section 15(b) or 15(d).”
In Cothron, a class of employees filed an action against their employer, White Castle, for requiring employees to scan their fingerprints to access computers without first obtaining employee consent. The 7th Circuit ruling, in conjunction with Illinois Supreme Court’s denial of rehearing, means an employer can be liable every time an employee scanned their fingerprints or such information is transmitted without their consent. The dissenting opinion of the Illinois Supreme Court criticized the majority’s interpretation as unable to “be reconciled with the plain language of the statute,” further citing the damage BIPA accrual can cause to businesses.
Enacted in 2008, Illinois’ BIPA was one of the first state laws addressing the collection of biometric data. BIPA requires private companies to develop written policies establishing guidelines and retention schedules for the collection, transmittal, and storage of biometric data. Moreover, BIPA requires companies to obtain informed consent prior to the collection. Biometric information, as defined by the Illinois legislature, includes retina or iris scans, fingerprints, voiceprints, or scans of hand or fact geometry.
Currently, Illinois, Maryland, New York (and New York City), Oregon (and Portland), Texas and Washington, each have biometric privacy laws in place. Additionally, several other states have proposed similar laws, or included biometric information regulations within comprehensive privacy laws. Notably, not all biometric privacy laws create a private right of action like BIPA or New York City. Read More
May 17, 2024
Pietragallo is pleased to announce that 24 lawyers have been named to the 2024 Pennsylvania Super Lawyers and Rising Stars list. Read More
