Families Matter

 

Widow Entitled to Pension and Worker's Compensation

After a Pennsylvania man died on the job, his widow and two children were awarded a monthly benefit of $2,990.00. Worker’s compensation death benefits are available to surviving spouses and dependents of any worker who dies in a work related incident. The widow was also entitled to $1,881.25 per month as a surviving spouse from her late husband’s pension with the same employer.

Shortly after the two payments started, the employer notified the widow that it was reducing the worker’s compensation benefit by the amount the widow was receiving in pension payments. The employer claimed that it was entitled to “offset” the monthly worker’s compensation payment by a portion of the pension benefits.

The widow appealed and the Court agreed with her. When an injured worker is receiving worker’s compensation benefits and also becomes eligible for pension payments, employers generally are entitled to offset the payments. But the Court noted that Pennsylvania law does not have any similar offset provision for widows. The employer argued that the widow was receiving more in combined benefits per year than her late husband would have received if he had survived. The Court decided that the plain language of the Workers’ Compensation statue creates an offset for workers but not for their surviving spouses. Until the Pennsylvania Legislature amends the Act, surviving spouses can collect both pension payments and worker’s compensation benefits without any offset or reduction.

 

Child Support Orders

In rapidly changing economic times, parents who have child support orders need to know their rights and obligations.

Pennsylvania's system of child support collection and enforcement is centralized in Harrisburg; you can learn about the system and access your own child support account at www.childsupport.state.pa.us.

Child support orders are modified at the request of either party if the income of either party has changed substantially. Generally, the modification is retroactive to the date the modification request was filed in writing with the county domestic relations department. But recently, a Pennsylvania appellate court upheld a five year retroactive modification of an order, finding that a father had failed to disclose substantial salary increases over that five year period of time. The father's monthly net income increased progressively from just over $5,000 per month to over $14,000 per month over the five year period.

The Pennsylvania child support statute requires that all parties to support orders promptly must inform the local domestic relations office and the other party to the case of any "material" changes to his or her circumstances. Material changes in circumstances certainly include salary changes and also include changes in health insurance benefits, day car expenses and any other issues that affect the support order at issue. The Pennsylvania support statute also requires that a party who knows of a change in the other party's income must promptly move for a modification. But in the case of the father whose salary increased over five years, the court found that the mother did not know of his income changes and had not received any of the father's tax returns. The court disregarded the mother's failure to promptly request modification simply because there was no evidence that the mother knew of the father's economic success.

Where a parent has any concrete reason to believe that the support order should be changed, delay can be costly. Usually, the courts will not modify any child support orders retroactive to a date prior to the filing of the request for modification. But where a paying parent fails to meet his or her affirmative duty to disclose increased income to the local domestic relations office, grounds may exist for broad retroactive modification of a child support order.

 

 

Parental Liability

Parents are not generally liable for the negligence of their children. Parents have a duty to exercise reasonable care to control their children when they know or should know of the necessity to exercise control and if they have the ability and the opportunity to exercise parental control at the time it is needed. In several recent cases, the Pennsylvania appellate courts have examined parents’ liability to people injured by children’s use of pellet or air guns. Air guns, considered by some parents to be suitable for children’s use, fire pellets which can cause serious injuries. Where parents share custody, the parent with actual physical custody of the child can be held legally liable when a child injures another with an air gun. If, however, the non-custodial parent has provided the child with an air gun without adequately communicating with the other parent about supervision, the non-custodial parent may be liable even for incidents which occur during the other parent’s custodial time. Where both parents reside together, both can be held liable if they don’t carefully supervise the child when the gun is used.

Whatever the custodial arrangement, parents are never automatically held liable for a child’s negligence. Parental liability can only flow from a parent’s failure to supervise when the parent had reason to know supervision was clearly necessary. In the cases involving air guns, the courts’ extension of liability to parents is based on a finding that reasonable, prudent parents realize that injuries can easily result from a child’s unsupervised use of a dangerous weapon.

Parents can also be liable for the negligent driving of their children. A parent is held liable if he or she “negligently entrusts” a car to the child. Negligent entrustment of a car occurs when the parent has some actual knowledge that the child is intoxicated or otherwise incapable of safe and driving and, despite that knowledge, gives the child permission to drive. “Generalized misgivings” about a child’s driving habits are not sufficient to shift liability to a parent. A parent is only liable for ignoring or disregarding specific knowledge of facts relating to the child’s inability to drive on the occasion in question. Minors are independently legally responsible for their own driving; their parents can be sued only if some specific parental negligence can be identified.

Minors can be sued directly for negligent conduct of any kind. When minors are sued, their parents have some financial responsibility to contribute toward any damages awarded. When damages are awarded to a person injured by a child, the child’s custodial parents are responsible in each incident for a maximum of $1,000.00 for each injured person or $2,500.00 total per incident. Any damages awarded against a minor over these amounts cannot be collected from the child’s parents. Despite these limitations of law, it is wise to be sure your automobile and home insurance policies properly identify the children in your custody. Most of the incidents that lead to litigation against minors can be covered by insurance in a well-planned policy. Whenever children are permitted to engage in dangerous activities, parental supervision is a must.

 

 

Child Support Obligations

Child support is a shared responsibility of both parents; no matter what custody arrangement exists between parents for the sharing of physical custody of a child, some sharing of financial obligations usually is ordered by the courts if one parent seeks child support from the other parent. In deciding whether a parent must pay child support, the courts focus on the earning capacity of both parents, and not simply on their actual earnings.

The parent with longer periods of physical custody is generally entitled to some child support even if he or she earns more than the other parent. A parent who is obliged to pay support may be entitled to a reduction of up to 20% of the recommended support order if he or she has overnight custody which amounts to 40% or more of the calendar year overnights.

Recently a Pennsylvania father appealed a trial judge’s decision which relieved the father’s former wife from making any contributions to the support of their child. The former wife and mother was remarried and had recently given birth to another child. She was not working and proved that the costs of infant child care and her loss of government benefits would put her at an economic disadvantage if she returned to work. The court relieved her of any child support obligations under the “nurturing parent” doctrine. Pennsylvania law has long recognized that where a parent elects to stay at home with a young child, he or she may be excused from contributing to support. In deciding whether to excuse such a parent, the courts consider the age and circumstances of the child who is the subject of the support proceedings. The courts focus on whether other sources of support are available to the child. Most often the nurturing parent doctrine is asserted by mothers who wish to stay at home with young children; application of the doctrine often places all responsibility for the child’s support on the child’s father.

In the recent case, the father objected to the application of the nurturing parent doctrine where the child being “nurtured” was not the child whose support was at issue and was not a child of the father. The trial judge found that a parent can seek nurturing parent status as to any child for whom he or she has parenting responsibilities. On appeal, the Pennsylvania Superior Court agreed. The Superior Court found that whether the nurtured child was the same child whose support was at issue was not a controlling factor in deciding if the mother was entitled to nurturing parent status. Instead, the mother’s earning capacity and the support otherwise available to the child at issue were the primary issues for the court’s focus.

Many Pennsylvania county courts consider every parent responsible to pay some child support, no matter what their circumstances. Parents who seek relief from child support based on the nurturing parent doctrine are frequently denied relief. But any parent who chooses to stay at home with a young child is entitled to seek relief from the payment of support on the ground that the young child is in need of parental nurturing and the fulfillment of those needs prevents the care-taking parent from earning income.

 

 

Grandparents’ Custody Rights

The custody laws passed by the Pennsylvania legislature distinguish “visitation” from “custody.” Visitation is the right to visit a child without removing the child from the custody of the child’s parent or guardian. Custody is the physical possession and control of a child.

The Pennsylvania legislature has granted grandparents custody rights in limited circumstances. Recently, the Pennsylvania Supreme Court held that it was constitutional for the legislature to pass laws permitting grandparents some limited custody of their grandchildren. The laws provide for grandparental custody even over the objections of the natural parents if a judge determines that contacts with a child’s grandparents are in the child’s best interests.

Which Grandparents Qualify?

Only certain grandparents qualify for custody rights. Grandparents are entitled to visitation and/or some regular periods of custody of their grandchildren if their adult child (one of the grandchildren’s parents) is deceased. But grandparents of the living parent are not entitled to custody on the ground that a parent is deceased—only the parents of the child’s deceased parent are entitled to custodial time due to a parent’s death.

Grandparents are also eligible for some visitation and/or custodial rights to their grandchildren if the parents are divorced or have been separated for more than six months. Grandparents generally are not entitled to any court-ordered custody if the parents of the grandchildren are currently married and not separated. However, if a child has resided with his or her grandparents for a period of 12 months or more and is subsequently removed from the home by his or her parents, the grandparents may be granted some custodial rights.

 

 

Separated Parents’ Entitlement to Dependency Exemptions for Children

Federal tax regulations regarding the dependency exemption for children have changed several times over the past decades. Before 1984, a parent who did not have primary custody could claim the children as dependents only if he or she paid more than $1,200 annually in support and the custodial parent couldn’t prove that he or she provided more support. With the rise in separation and divorce rates through the 1980's and 1990's, disputes over entitlements to the exemptions mushroomed and Congress looked to simplify the law to relieve the IRS of the burden of administrating countless disputes between taxpayer parents. In 1984, Congress amended the law and gave the exemption to the custodial parent. A non-custodial parent can claim exemptions for children if an agreement created before 1985 gave him or her the exemption and he or she paid more than $600 in support annually, or if the custodial parent signs a waiver giving up the exemption for the relevant tax year. Congress has not recently commented on whether the state courts, in their regulation of divorce and support obligations, may deprive the custodial parent of the general entitlement to the exemptions.

The Pennsylvania Superior Court recently decided that the state courts can play a role in deciding which parent gets the federal tax exemptions for children. Finding that the state courts have general authority to see to it that economic justice is accomplished when families break up, the Court found that under appropriate circumstances the court should award a non-custodial parent a share of the federal tax exemptions for the children. The Court specifically noted that where a non-custodial parent is in a significantly higher tax bracket that the custodial parent, awarding the exemption to the non-custodial parent may result in larger tax savings to the noncustodial parent than that available to the lower-income custodial parent. The Court approved “routing the tax savings into greater support for the children, because increased tax savings will mean increased financial resources that can be utilized for the children’s benefit.”

A non-custodial parent who is current on all payments of child support should consider moving for a modification of the existing support order to address the sharing of tax exemptions. But any transfer of the exemptions may result in the calculation of a higher support payment since the shift of any exemptions will likely create a tax savings and resultant increase in net income for the non-custodial parent with a tax increase and resultant decrease in net income for the custodial parent. In some circumstances, a custodial parent may actually benefit from a change in the entitlement to exemptions and so custodial parents, too, should consider moving for a new order. Before moving for modification, either parent should consult with counsel to calculate a projection of the potential change in the order. Parents should also consider the advantages possibly open to each parent by a sharing of the exemptions.

 

 

Alimony

Pennsylvania judges have the broad authority to order short or long term alimony as part of a divorce. The stated purpose of alimony under Pennsylvania law is “not to reward one party and to punish the other,” but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment are met. The amount and duration of an alimony order is based upon the recipient’s reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor's ability to pay. Moreover, alimony is described by the Pennsylvania courts as a “secondary remedy” available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an property division and development of an appropriate employable skill by the dependent spouse.

Any spouse who seeks or receives court-ordered alimony loses all rights to alimony upon remarriage or cohabitation. The Pennsylvania courts have struggled with the definition of cohabitation. Recently, the Pennsylvania Superior Court observed that “cohabitation may be shown by evidence of financial, social, and sexual interdependence, by a sharing of the same residence, and by other means.” In the case before it, the Court accepted a husband’s claims that his wife wasn’t spending the summer at their shore home but was in fact living with another man. Although the wife denied cohabitation, the Court was convinced by the husband’s production of bank records showing that she was not banking from the shore home but instead all her bank transactions occurred in a Philadelphia suburb. In addition, the husband proved that the utility records at the shore home showed little use. The wife was denied any alimony despite the substantial difference in the parties’ income.

 

 

Credit Card Debt and Divorce

Managing credit card debt during separation is an important part of divorce planning. The best way to start is to request a credit report from any one of the three reporting agencies: Equifax, (800) 685 1111 or www.equifax.com; Experian (formerly TRW), (888) 397 3742; www.experian.com; or Trans Union, (800) 888 4213; www.transunion.com. To secure a credit report, you must provide your full name and signature, social security number, date of birth, address for the past two years and telephone number. Under limited circumstances including financial distress or denials of credit, you may be entitled to a free copy of your report. Otherwise, the cost is generally about $10 per report—and all three credit reporting agencies now offer a “3 in One” report online—you pay about $35 and instantly get a consolidated, detailed report from all three (Experian, Equifax and TransUnion) on one report.

If requested very close to your date of separation, the credit report can serve as an excellent roadmap to your marital debt. Pennsylvania law provides that marital debt is any debt which arose during the marriage and was still unpaid at separation. The date of separation is the bulls eye date for setting the precise amount of your marital debt. Once you have separated, it’s important to keep post separation debt and marital debt separate. Open new credit cards. Or if you already have separate cards that carried zero balances at separation use them. But be sure to discontinue the use of any cards in joint names or any cards which carried balances at the date of separation.

If you can’t agree on a division of debt, the court will divide the marital debt between you and your spouse. Just because all the credit card debt is in one spouse’s name doesn’t mean that he or she will pay it all. The court will look at the reasons for the purchases and will focus on whether the debt arose from family needs. It will examine the ability of the parties to pay—what each of you earns. If you want to prove marital debt in court, you will have to have a history of credit card statements that include the detail on what was purchased. If you didn’t save your monthly statements, you may be able to retrieve the information online— many credit card companies provide transaction histories online.

Closing joint credit cards at separation is wise. No matter what the court decides, a creditor can institute collection procedures against either party on a joint card. If the court orders your spouse to pay a card off and he or she is slow to do so, the creditor is not limited in its rights to pursue collection from you. Finally, for those couples who can agree on a division of debt, the use of balance transfers is a quick and efficient means of dividing joint debt. To balance transfer joint debt, each party uses a card or cards in their separate name and each then balance transfers his or her share of the joint debt onto the new cards. This can be done by phone or online. Once all joint debt is satisfied by balance transfers, you can each manage your debt separately and neither your final agreement nor the court will need to address any of the details of the joint debt.

 

 

Shared Custody

Summer often brings a new custody schedule to a separated family. Many custody orders provide for alternating weekly custody in the summer or even shift primary custody from one parent to the other. Working together to plan your children’s summer can help them adjust to the changes.

Sharing a calendar is the first step. In order to avoid the appearance that you are dictating a summer schedule to your co parent, be sure to share a calendar with a clear statement that it is a basis for discussion. Tell your co parent that you “think” or “feel” that certain summer weeks, holidays or days are your periods of custody and invite him or her to comment. Emphasize your openness to flexibility while explaining that planning now is a wise way to avoid future conflict. If you have a thirty day notice period in your custody order for your choice of vacation time, be sure to get that notice to your co parent before making a deposit on a vacation home or plan. If both mom and dad make a deposit in the same week without speaking to each other and then issue a 30 day notice, a clash is inevitable. Instead, as soon as you have chosen a week, call your co parent. He or she isn’t entitled to veto your choice. But if he or she has reasonable requests for your modifying your plans, you will have the ability to do so if you have not yet made a financial commitment.

Finally, be sure to involve your children in your planning. After consulting with your co parent about summer camps, vacations and summer custody, ask your children what they are looking forward to and what they would like to accomplish and enjoy this summer. Be willing to give them extra time with the other parent if that is important to them.

 

 

Emancipated Children

Children are considered “emancipated” and no longer entitled to child support once they are 18 years of age and graduated from high school. Every June, thousands of children on the Monroe County Domestic Relations Department’s caseload are emancipated. Nothing happens unless the parent who pays support asks for a change. And even then, not much happens unless you know what to ask for.

Most child support orders are “unallocated.” This means that the order calls for a flat amount of support— for example $800 biweekly, for three children. The order does not “allocate” or divide the support among the children. If your order is unallocated, it probably says nothing about allocation at all.

On the other hand, if your order is allocated, it probably says that the support is “allocated equally among (x number of) children.” Allocation is an important factor that will affect how the Domestic Relations Department treats the emancipation of a graduating child.

If you have a child who is 18 and graduating next month, write to Domestic Relations now and advise them of the graduation date. They will most likely send you a form Petition and will also probably send an inquiry to the custodial parent. Complete the Petition and send it back. You will receive a new support order which removes the graduating child. But you will probably very quickly notice that the new order is for the same amount of money—one less child but no change in the dollar amount owed. On unallocated orders the Domestic Relations office simply removes the emancipated child’s name but doesn’t change the amount of support. On allocated orders, they remove the child and his or her allocated “share” of the support.

Now it gets very tricky. First, the complex law—the Pennsylvania Support Guidelines don’t trigger equal shares of support for multiple children. The support for two children isn’t calculated equally at all–for example, the support obligation for the first child is often about twice the amount of the additional support owed for a second child. If you are receiving support, and your order is allocated, and one child is removed, cutting the order in half, you should request a conference and a recalculation. You are entitled to a certain amount of support for the remaining child or children in the home and it is quite possibly higher than what you are left with when one child’s allocated share is just cut off the existing order.

Second, the procedures are confusing. If either parent is unhappy with or confused by the new order, he or she needs to petition for a conference. You can write a letter asking for one but sometimes it is far more effective to get your lawyer involved to be sure a conference is properly scheduled and properly conducted.

If you know your co parent’s earnings for 2004 or 2005, we can run rough calculations of the support obligation to help you understand the correct impact of emancipation and what you should get from a conference.

But be sure to remember that graduation is an important achievement and is both a joyous and a confusing time for your child. Don’t let mis communication or conflict mar his or her graduation celebration. Notify Domestic Relations now of your request for a change, but keep the days and weeks around your child’s graduation free from any court appearances or open conflict. And take the time to congratulate both yourself and your co parent on your mutual success. Raising productive children of character is something of which you should be very proud.

 

Book Review

Many years ago I had the opportunity to hear Georgetown University linguistics Professor Deborah Tannen speak on her observations about how differently men and women speak. In her well known and highly readable book, You Just Don’t Understand, Tannen illuminates the gender based differences that define and distinguish male and female communication.

Convinced that ignoring our differences is downright dangerous, she asserts that for most women conversation is a way of connecting and negotiating. Thus, they tend to center on expressions of and responses to feelings, or what she labels "rapport talk" (private conversation). Men, on the other hand, tend to use conversation to achieve or maintain social status; they set out to impart knowledge (termed "report talk," or public speaking).

Tannen notes that men and women don’t always speak consistently with their gender’s style. And she doesn’t label either sex as using language skills that are good or bad, right or wrong. Instead she ably shows how both men and women speak both effectively and ineffectively. Her conclusion? The better we understand gender differences, the better able we are to bridge the communication gap between men and women, and especially between spouses. I’ve read and re read this book but still see that sometimes I just don’t understand.

If 25 clients are interested in purchasing the book, we can arrange for a group discount. Call Reiny and let her know if you are interested. We’ll advise you of the exact price (about $10) before collecting any money or placing the order.