Part of Real World Divorce: web edition | Kindle edition
James Carville said that "Pennsylvania is Philadelphia and Pittsburgh with Alabama in between." To make sure that we got the story from different parts of this large and varied state, we interviewed multiple attorneys.
We learned about the Pittsburgh region from David Pollock, who began his practice in 1974 and is the lead partner at Pollock Begg Komar Glasser & Vertz LLC. Pollock's focus is the economics side of cases. He has some career advice for would-be divorce litigators: "I taught myself tax and accounting. If I had to do it all over again, I would have studied accounting as an undergrad." He handles a roughly 50/50 mixture of male and female clients. Pollock is a "Super Lawyer" who has been active in the American Academy of Matrimonial Lawyers as the Pennsylvania chapter's long-standing treasurer. He is also on the Budget Finance Committee of the North American chapter of the International Academy of Matrimonial Lawyers. He has served as Editor-in-Chief of the official quarterly published by the Family Law Section of the Pennsylvania Bar Association. He teaches other attorneys through continuing legal education and other programs. See http://www.pollockbegg.com/ for a full biography.
We learned about customs in the Philadelphia area from Ned Hark, a "Super Lawyer" with nearly 30 years of experience. He has been Chair of the Family Law Sections of the Pennsylvania and Philadelphia Bar Associations and is a fellow in the American Academy of Matrimonial Lawyers. Hark has been actively involved with Pennsylvania family law legislation and is a frequent teacher in continuing legal education programs. See http://www.aaml.org/divorce-lawyer-philadelphia-pennsylvania-ned-hark for a complete list of Hark's teaching and publications.
We learned about the area surrounding Lancaster, a city of 60,000 close to the Pennsylvania Dutch country, from Lisa McCoy, a partner in Nikolaus and Hohenadel who has been practicing since 1998 and has been designated a "Rising Star" by the Super Lawyers folks. In addition to her work as a litigator she also has served as a Guardian ad litem (representing children) and as a parenting coordinator (mediator between divorced parents). See http://www.n-hlaw.com/ for a complete biography.
We learned about the area surrounding York, a city of 44,000 about 40 minutes west of Lancaster, from Amy Phillips of Mooney & Associates, who has also been designated a "Rising Star" by the Super Lawyers folks. Phillips has been practicing since graduating from Pennsylvania State University's Dickinson School of Law in 2000. See http://mooneyandassociates.com/ for more.
Those planning a litigated divorce in Pennsylvania had better agree with the Sicilian expression that "revenge is a dish best served cold." When asked how long it would take a couple with standard disputes regarding custody, child support, property division, and alimony to have all of these issues resolved at a first trial (i.e., not including any appeals), attorneys gave answers ranging from 3-5 years. Valuation of marital property is postponed until the final trial and therefore a spouse could have an incentive to drag things out depending on how the market is moving. What does "drag things out" look like? We heard about at least one divorce that took more than seven years.
How is that possible? "If there is no agreement between the spouses," said Pollock, "Pennsylvania requires a two-year separation, which generally means a two-year waiting period to start the process, though some counties allow the equitable distribution case to start after 18 months. A trial on the economic divorce could be within 12-18 months following the commencement of the action." Hark confirmed that things are similar, and similarly varied in the eastern part of the state. "Depending on the county," he said, "there might be either one stop or two stops in terms of non-record hearings before masters, before you get to a judge." What did Hark think that the total time might be? "I tell clients all the time that I don't like to predict how long it will take, though note that at least 90 percent of the cases will settle at the level of the divorce master, an attorney who handles nothing but equitable distribution, alimony, and other divorce-related economic matters. It is rare that a case goes for a de novo trial to a judge."
Why the distinction regarding an economic divorce? "There is a whole different system for custody," responded Pollock, "based on rules promulgated by the Pennsylvania Supreme Court." How long does it take to get a custody decision? "There will be interim orders right away with a final trial in 6-12 months. On child support it might be 3-7 weeks for an interim order based on the recommendation of a domestic relations officer or hearing officer." So people could still be in the divorce waiting period and start and finish the support and custody litigation? "Yes," said Pollock. "They might be nowhere near divorced but could go through a complete child support case or a custody trial."
How involved do these custody cases get? Pollock told us about trials that took up 10-20 days in court stretched out over a two-year period (as in other states, consecutive days of trial that would be standard in a slip-and-fall case don't seem to be guaranteed to divorce or custody litigants) and with custody evaluators testifying for as long as five days. Things are simpler in York, where Phillips told us that a custody case might be decide within 2-3 months after filing. McCoy of Lancaster says that "a full-blown custody trial without evaluators and experts can go from filing to hearing in six months."
As alluded to above, child support is actually handled on a third track.
What happens to the house during the three parallel wars? "Exclusive possession of the house is only obtainable after a separate hearing," said Pollock. "Filing a Protection from Abuse (PFA) order is a more common way to get a house." Do people try to shortcut the divorce process with the domestic violence prevention system? "We see that with frequency," said Pollock. "The practicality and reality of the situation is that getting the house and the children via a PFA is a big advantage," said Hark. How does the PFA affect the custody litigation? "It helps because it changes the status quo," said Pollock, "and often judges at trial want to preserve the status quo."
As in neighboring Maryland, the PFAs are issued via an ex parte [without the accused present in court] process and judges reportedly err on the side of granting the order. The accused can come to an evidentiary hearing 10 days later, but the initial order is likely to stick. If the wife is successful in getting the house she then can get 30 or 40 percent of the net income difference between the spouses as temporary support to pay the bills.
Is alleging abuse less common among the rolling hills and bucolic farms of Pennsylvania Dutch Country? Apparently not. Phillips says that parents in York frequently "contrive claims of verbal and emotional abuse because they they're going to get the upper hand in a custody action." Where does that leave true victims of abuse if the courts are swamped with false claims? Phillips says that they are going to face skepticism from judges fatigued by exaggerated stories but reminded us that, except for divorce litigants, a restraining order (PFA) may not have much practical value: "Ultimately it is a piece of paper." Neighboring Lancaster operates similarly, according to McCoy: "Some people consider an argument to be 'abuse.'"
Is there a practical right of appeal in Pennsylvania for the things that a parent might care about? "If it is a fact question [such as which parent should get custody] and there are facts to support the decision then taking an appeal is a waste of time," said Pollock, "On the other hand we take appeals where they are very real legal mistakes." Hark confirmed that appeals are generally impractical because the "abuse of discretion" standard is so high.
A parent can collect child support in Pennsylvania until a child's 18th birthday or high school graduation, whichever is later. Pennsylvania does not have a statutory age limit for a slow learner or for a disabled child, but a child support defendant could ask why a healthy 20-year-old, even without a high school diploma, is not working. Pennsylvania courts do not have the authority to order parents to pay the college expenses of an adult child.
Child support and alimony revenue is less secure in Pennsylvania than in some nearby states. Child support terminates on the death of either party, as does alimony. Pollock said that child support cannot be collected, on an ongoing basis, from the estate of a dead parent. He also said that "it is not a regular thing" for judges to order a parent paying child support also to purchase life insurance for the benefit of the co-parent. Another potential risk to a parent collecting child support is that a child of 13-15 may be able to voice a preference to live with the other parent and/or a paying parent may be able to show that a change in custody is in the "best interest" of the children. "There is no threshold to get a modification of parenting time," said Pollock, "though you do have to avoid irritating the judge with repeated motions. A 'substantial and material change' is the threshold for an adjustment to child support based on changed economics." McCoy told us that in Lancaster a child growing up from 1 to 6 years old would be considered a substantial and material change: "We all recognize that a schedule best for smaller children is not necessarily best for school-age children."
Attorneys say that consumers can calculate child support guidelines from a state-published table (Rule 1910.16-3; we used the updated-in-2013 for this chapter), which goes up to $30,000 in combined parental after-tax income. Given a single defendant earning $250,000 pre-tax ($14,400 per month after tax according to the ADP Paycheck Calculator), a plaintiff with custody of one child could collect $21,072 in Pennsylvania. This is more than the capped rates in some states and countries, e.g., Nevada at $13,000 per year or Denmark/Germany at $8,000 per year. However, it is less than what the same child would yield in Massachusetts ($40,000 per year for 23 years) or New York ($42,500 for 21 years). What about defendants who earn more than about $634,000 per year, pre-tax ($360,000 per year after tax)? Rule 1910.16-3.1 states that the child support amount will be the top of the table ($33,612 per year for one child) plus 8.5 percent of after-tax income. This is more than double the extrapolation percentage used in Virginia (2.6 percent of pre-tax), but lower than California's 11.52 percent of after-tax income, and much lower than the 20 percent after-tax rate in Illinois and the similar rate in Massachusetts (11 percent of pre-tax income). There does not seem to be any practical limit on child support in Pennsylvania. A 1993 case, Branch v. Jackson, explains
Father's complaint that an order commensurate with his income and lifestyle will result in a windfall to Mother is a make-weight argument. Obviously, if the child lives with Mother, Mother may indirectly benefit from certain of the child's needs, for example, improved housing. However, that is no reason why the child should be shortchanged by denying him support commensurate with his Father's income and lifestyle.
Direct expenses of a child, such as day care and health insurance, are ordered on top of the basic child support guideline amount and paid in proportion to the parents' incomes. This is set forth in Rule 1910.16-6. [The rule is gender-neutral, but all of the examples given in the statute are of a mother who has won custody and of a father who pays child support.]
Can parties develop a "walk-away" agreement in which property remained separate and alimony was waived? "There are no restrictions other than full and fair disclosure at the time of signing," said Pollock. (As in other states, however, a prenuptial agreement does not control custody or child support.)
Judges in Pennsylvania are elected and must run for re-election or "retention" every ten years.
The average hourly wage in Pennsylvania is $21.40 per hour. Census 2014 data show that median income for a 22-36-year-old college-educated woman is $40,000 per year ($30,465 after income taxes). For a corresponding man the number is $50,000 for a man ($36,886 after taxes). Attending Penn State, University Park for four years will cost $126,068. Pennsylvania collects 10.2 percent of state residents' income to run state and local government (compare to a national average of 9.9 percent; source: Tax Foundation). Individual income is taxed at a flat rate of 3.07 percent. Pennsylvania has an inheritance tax as well, though surviving spouses and minor children are exempt.
The average annual cost of child care is $10,504 for an infant and $8,588 for a four-year-old. The total cost of child care from age 0 through 12 is about $58,916 in commercial settings or $49,632 in a family care setting.
The male college graduate will have an after-tax spending power of $390,336 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for USDA-estimated child-related expenses, he would have a higher personal spending power by collecting child support when that support is $2,557 per month or more. He can get this by suing a women earning $315,600 after taxes. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,654 per month, which is possible when each mother takes home $156,000 per year.
The female college graduate will have an after-tax spending power of $300,442 over the same time period. She would be better off collecting child support when that exceeds $2,141 per month. This would require suing a father earning at least $241,200per year after tax . If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,446 per month from each one. This should be possible within the guidelines if each defendant earns at least $127,800 per year after tax.
You can get paid a lot more for taking care of your own child than the state will pay you for taking care of someone else's. Foster parent rates vary by county, but $7,300 per year was a number that we found in 2016.
Among Pennsylvanians surveyed by the U.S. Census Bureau in 2014, 94 percent of those collecting child support were women.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
We were told that joint legal custody ("decision-making" in some states) is the norm in Pennsylvania. What about the physical custody war that these two are fighting? Hark in Philadelphia predicted a victory for the mother, who would become "primary custodian." This would be based on the fact that "while the father had time with the child during the marriage he didn't do much," said Hark. "A judge would ask 'How much time am I going to give him to be alone with the child watching TV." Assuming that the father could demonstrate to the court that he was in fact capable of doing child-related chores, Hark said "probably he would get 2-3 nights per week."
Pollock thought that the child's schedule would be tough to predict in this scenario, though he said that generally judges in urban areas were more prone to award shared 50/50 parenting while judges in rural areas were more likely to favor primary custody to the mother. "Pennsylvania first looks at who was the nurturing parent during the marriage," said Pollock, "and then who is the nurturing parent at the time of the trial. The closer you are to separation the more likely that the judge will look at the old status quo; the closer to trial the more likely the judge will look at the new status quo, which is why PFAs are so powerful."
Pollock thought that a judge might craft "a 50/50 scenario that is broken up around her schedule. He gets custody with the nanny when she's is working. She might get the vast majority of weekends because he is goofing off."
What about in the smaller towns? Phillips of York said "It may well be a 50/50 parenting schedule. There is an ever-increasing preference for 50/50 among our judges, particularly when a child is six years old or younger." Does "younger" include infants? "Yes," said Phillips. What about the father's slacker lifestyle to date? "His lack of responsibility when the parties were together won't bar a 50/50 schedule if he can demonstrate that he is now willing to do it or has alternative child care resources," responded Phillips. Did Phillips expect psychologists and other witnesses to testify and make recommendations regarding custody? "There is a trend moving away from the use of professionals," she said. "Judges want to hear primarily from parents and other lay witnesses."
Things may be different in Lancaster County, where McCoy told us "If dad wasn't exercising time that he had with the child during the marriage, what's the point of giving him a lot of time now?" She expected the father to end up with "a liberal partial schedule" with less than 50 percent of the time.
What are the financial stakes in the custody fight? If the mother becomes the primary custodian, she gets paid child support based on income earned by or imputed to the father. If the child's time is shared 50/50, Pollock estimated a range of $1,450-1,700 per month in child support paid by the mother. If the father were able to become the primary custodian he could collect up to $2,100 per month in child support. Thus the mother has roughly a $450,000 incentive to hold the father to no more than 39 percent of the overnights (Rule 1910.16-4: "When the children spend 40% or more of their time during the year with the obligor, a rebuttable presumption arises that the obligor is entitled to a reduction in the basic support obligation to reflect this time.").
The attorneys did not think it would be difficult to impute $30,000 or $40,000 per year of income to the photographer if he were a college graduate.
Neither Hark nor Pollock could estimate of the total fees for representing either of these litigants through trial. Pollock charges $350 per hour and Hark is at $400. Consumers that we interviewed reported that they had spent hundreds of thousands of dollars per side in litigated Pennsylvania custody cases. Can the photographer get the doctor to pay his fees? Pollock thought that an award for counsel and CPA fees was possible, or an advance against equitable distribution could assist. Hark was less sanguine about his chances for sticking the doctor with his legal bill.
McCoy said that a divorce, including custody and child support issues, can typically be handled in Lancaster for $40,000 on one side (she charges $250 per hour). She told us that the case that had generated the highest fees ever in Lancaster County was $175,000 per side (little more than a retainer in Massachusetts, Manhattan, or Los Angeles!) and "that was a 7-9-year divorce."
How about alimony? It turns out that the financial stakes in the custody war are larger than the $400,000+ in potential child support. If the father gets at least 50 percent custody, Pollock thought that along with that might come post-divorce alimony until the child enters full-time school (i.e., 4-5 years). Is that actually possibly after a two-year marriage? "She created the monster [stay-on-the-couch dependent] and now she has to live with it," Pollock responded. "There are two primary factors: reasonable needs and income differences. The formula amount for interim support is 40 percent of differential net disposable income, without children. If there are children it is 30 percent of the difference determined after child support is considered." Pollock said that there was no formula for post-divorce alimony but that there was a certain degree of continuation bias in that the post-divorce award may tend to resemble the interim amount in a typical case. What if the child were awarded primarily to the mother? Hark said in that case not only does the father lose child support but his alimony revenue will cease after two or three years.
"Rules prohibit a support order for longer than the length of the marriage," said McCoy of Lancaster. How much would it be? "Alimony recommendations vary by county. The amount awarded will also depend on which judge or master, because each one looks at things differently. Alimony is by far the most contested issue in any divorce and there is no guidance from the statutes." Is there no prediction that she can offer clients? "A general practice tip is a year of alimony for every 2-3 years of marriage and somewhere between half and two-thirds of the interim spousal support calculation [either 30 or 40% of the income difference]."
Pennsylvania is an equitable division state and the short length of the marriage makes it tough for the father to get a big slice of the pie. The doctor's degree is off the table but any increase in the value of her medical practice could be litigated and divided. Unlike some other states, Pennsylvania does not distinguish between active and passive appreciation in pre-marital assets. All appreciation can be divided. Volatility does not favor a plaintiff as in some other states. If the doctor had five assets and, through volatility, three went up and two went down, a plaintiff cannot cherry-pick the appreciated assets for division and ignore the losers. "You deduct losses from winners in looking at appreciation of pre-marital assets," said Pollock. "The 2005 Amendments to the Divorce Code mandate that offset."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
What if these people both come to court demanding to be made the primary parent, can the judge order 50/50 custody despite neither party asking for it? Hark and Pollock agreed that a court could award shared physical custody and agreed that the decision was highly dependent on the judge assigned to the case.
As in some other states, Pennsylvania has a doctrine that parents should not share custody if they cannot cooperate or have conflict. "You can sabotage shared custody by creating conflict," said Pollock, and Hark agreed "even if it is just one parent alleging conflict and a lack of communication that will make shared custody less likely." The strategy is not without risk, however, as Pollock notes that "the judge may favor the non-sabotaging parent."
York County is not a fruitful place in which to generate conflict, said Phillips: "Generating conflict doesn't help to win primary custody here. Our judges will award a 50/50 schedule if they find a minimal level of cooperation." What's the definition of minimal? "It could be exchanging information via email about an event at school for the following week," said Phillips, who expected a 50/50 outcome in this scenario. McCoy agreed that, under case law, only "at least some ability to communicate" was required for shared custody and expected a 50/50 schedule with a directive for "co-parent counseling."
Like attorneys in other states, Hark and Pollock said that pre-lawsuit planning by one of the parents could be effective, e.g., subtly increasing the share of child-related duties from 50 to 70 percent in the year prior to filing the lawsuit. "It does not work if it is too obvious," said Pollock, "but you see it a lot with infants in the form of the gatekeeper parent." Hark says "I absolutely see it. It works as well as the other side lets it work, though it is hard to detect that someone is doing an extra dentist visit or an extra parent-teacher conference as a prelude to litigation."
McCoy of Lancaster says that she has seen pre-lawsuit planning: "People try to get their ducks in a row and stack the deck in their favor, usually the one who is thinking about a divorce."
What might the schedule look like here? In the event of a 50/50 award, Pollock thought that a 2-2-5-5 schedule was more likely than week-on, week-off due to the age of the youngest child. Hark thought that it could be 12 or 13 nights out of every 28 with one parent, which would be enough of an imbalance to allow the victorious parent to collect nearly full child support.
How much child support is at stake here? Pollock calculated that the loser parent would pay the winner $13,200 per year, resulting in a spending power difference of nearly $400,000 between the parents by the time the youngest child ages out of the system. Does that lead to litigation? "In a perfect world people would not fight to collect child support," said Hark, "but in the world where we do live, money is the root of a lot of these custody fights."
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Pollock and Hark agreed that the mother would become the primary parent with the children spending every other weekend with the father. What does a "weekend" mean in Pennsylvania? Hark said that it might be Thursday night to Sunday evening or Friday night to Monday morning as an "extended weekend." Pollock said that Friday night to Sunday afternoon was "typical" but some judges would start a weekend on Saturday morning or end it on a Monday morning. Pollock and Hark agreed that a mid-week dinner or overnight on the off-week was a possibility as well.
Pollock calculated child support at up to $31,500 per year for the mother if she is the primary parent and $25,200 in a 50/50 situation. Thus the mother has a roughly $100,000 cash incentive to fight against shared parenting.
Pollock thought that the mother could collect alimony at least until the youngest child is in elementary school full-time. "Beyond that it is a crap shoot, though the marriage is too short for lifetime alimony," he added. [25 years seems to be a point at which lifetime alimony becomes common in Pennsylvania.] Hark's prediction of 3-4 years of alimony was consistent with Pollock's. What if the litigation lasts for five years and she has been getting interim support during that pre-trial period? Does she get alimony for four additional years? "No," said Hark. "There is credit for time served."
Can she get the house and most of the property due to her lower earning capacity? "Yes," said Hark, "also because she will be staying at home, at least for some time, with the children."
Could the father work his way to 50/50 custody? Pollock said "maybe when the two-year-old is in school." Hark said that he would have a tough burden. "He has to show that he has a positive impact on the children. The counter-argument is that if the every-other-weekend schedule is working why change? As the children get older they might have become very comfortable with the custody arrangement. A lot of factors must be demonstrated to the court to persuade a judge to award shared custody." [Note that this is consistent with the Canadian researcher's point that the every-other-weekend schedule gets no scrutiny despite the lack of any study finding that it is optimum while shared parenting is carefully scrutinized; see the Canada chapter.]
McCoy thought that a Lancaster mother would be able to obtain the primary parent role in this scenario, with a "partial" schedule for the father and "how liberal will depend on his availability and his prior history of caregiving." What if the father says that, now that he won't be part of a marital partnership, he'll cut back to four days per week, earn a little less, and be available to the children on a 50/50 schedule? "The timing of dad's wanting to cut back is suspicious," responded McCoy, but she added that "if he has a good relationship with the children, there is a very real possibility of going to 50/50 as the kids age." McCoy's answer on alimony was consistent with the Philadelphia and Pittsburgh answers: "until the youngest child is in full-time school."
The York courthouse would deliver similar results to Lancaster's, according to Phillips. "The father [who says that he'll cut back on his work] may have to demonstrate that he is in fact going to be home with the children and that he is not just asking for a 50/50 schedule to keep them away from mom. It might be a stepping stone process." So six years later the children might be on a shared parenting plan? "No," responded Phillips. "We would try to build into the initial order that there would be a second look in six months."
Given that the stay-at-home parent here wins the house, the kids, profitable child support, and alimony, does it make sense for Pennsylvanians to voluntarily assume the breadwinner role? "Early on, the breadwinner gets a bad result in terms of custody, child support, and equitable distribution," said Pollock. What about as the case heads toward trial or in post-trial proceedings? "If the breadwinner is a good guy or good woman throughout, the breadwinner loses."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Both Pollock and Hark predicted that the mother would win primary custody and approximately $20,000 per year in child support to go with it (calculated by imputing her former $50,000 per year income to her). She would also get the child's day care and health insurance paid by the doctor. Pollock thought that she could get alimony until the child was ready for full-time school but that a shorter term was more likely. Hark agreed that two or three years was a likely length for alimony. [Note that it seems that more or less any Pennsylvania divorce litigant could get up to three years of alimony because it takes that long to get to a trial on the issue and interim support would flow in the meantime.]
Hark and Pollock agreed that winning primary custody of an infant was easier than winning primary custody of a school-age child.
There is no state-wide standard in Pennsylvania for a baby's parenting time schedule, though McCoy says "some counties have standard schedules by age." She told us that psychology experts who testify in Pennsylvania courts were still debating the age at which a child could spend overnights away from the primary custodial parent.
How does the $2 million in savings factor in? "The marital assets will be divided in her favor due to these premarital assets," said Pollock. She can also get a share of any appreciation in the $2 million, even if that appreciation is due only to inflation. However, the date on which the appreciation is calculated is the date of separation. She would not benefit from appreciation of non-marital property during the additional five years that it might take to get to a final trial.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
Pollock said that the mother here would win primary custody and roughly $400,000 in child support over 18 years. "The father's case for 50/50 custody would be impaired due to never having lived with the child," Pollock noted. Hark had personally handled a similar case where the father actually did get custody because "the 18-year-old could not take care of the 18-year-old, much less a baby." He said that the mother could significantly bolster her custody case by waiting until the child was 6 or 12 months old before informing the father of the baby's existence. "It helps her because the child does not know him and also she has established a track record of caregiving," Hark said.
Phillips thought that a York judge might well assign a 50/50 schedule to this child. Even a infant? "Judges here have told breastfeeding mothers to pump or wean. Courts have done a lot to become gender-neutral." Is it like other states where one judge could consistently award sole custody while the judge in the next courtroom was always awarding shared parenting? "That was true 10 years ago," Phillips responded, "but most of the judges are now on the same page." Why the change? "I don't know, but judges have told me that the traditional scenario of a stay-at-home parent has gone by the wayside. With the norm being two parents working full-time they don't want to punish a parent by ordering him or her to make a living [for the ex-spouse as well]."
Can she wait 10 years and then get child support retroactive to the date of birth? "No," said Pollock. "The statute of limitations was changed. She has 18 years to file but retroactive support commences only on the date of filing."
Must she hire an attorney? "No," said Pollock. "The IV-D law will pay for paternity testing and child support order establishment. He will have to reimburse the county for the cost of the tests."
Suppose that the the mother marries a billionaire. Is her entitlement to child support reduced? "No," said Pollock, "but it would impair any claims that she might have for special needs or above-Guidelines awards."
"We call it 'relocation' when a parent wants to move with a child," says Pollock, "and we have a statute promulgated in 2010 [Title 23, Ch. 53, Section 5337] that sets forth the factors. It is a balancing test of three interests: best interests of a child; rights of a parent moving; rights of a parent staying." Where does the scale end up after weights are placed on the three sides? "Decisions are all over the board. First you have to look at who the judge is. These cases are judge-specific. Then you need to look at what is causing the change. Is it so much better there than here? What is the stability of the moving parent's new relationship? Is it a corporate relocation and there is nothing she can do about it?" Does a Massachusetts-style "It is a better for the custodial parent therefore the child will somehow be better off" argument fly? "There is case law in Pennsylvania to support that concept," said Pollock.
Hark agreed that the outcomes of relocation cases were hard to predict. He stressed the importance of the judge's perception of the role of the to-be-left-behind parent in the child's life. An every-other-weekend parent who was also involved in mid-week extracurricular activities would be better protected against a move than a standard non-custodial parent.
McCoy said that, as a practical matter, relocation is easiest to obtain when a child is age 3-5. "It is harder to move all the way to California with a baby due to the long separations," she said, "and then once they start school there will be more ties to the community." Is a parent's interest in making more money by marrying a high-income spouse in California or taking a higher-income job in California considered? "Yes," said McCoy. "Case law says that if a parent is relocating for financial gain then the court can assume that the financial gain will flow to the child." What if there has been a 50/50 parenting schedule? Does that make it impossible to obtain court permission to relocate? "No," said McCoy. "Realistic substitute visitation arrangements don't have to be comparable. The standard is whether they are sufficient to maintain the relationship between a parent and child."
Phillips confirmed that relocation cases were challenging. "A parent who wants to move will need to demonstrate more than just benefit to the child," said said, explaining that it was required to show that the move "won't interfere with a child's relationship with the left-behind parent. You need same quality of time even if not the same quantity." Is it impossible if the parents have 50/50 custody? "No," Phillips replied. "If mom has primary custody she has a better shot, but I handled a case with 50/50 custody in Adams County. The mother was allowed to relocate to Maryland and the child spent three quarters of the weekends and school breaks with the father, returning to a 50/50 schedule during the summer months.
Pennsylvania has a "Self-Support Reserve" of $931 per month ($11,172 per year) below which a defendant's income cannot be dragged by child support orders. A person working for 2000 hours per year at the 2014 Pennsylvania minimum wage of $7.25 per hour would earn $14,500. A person working at the minimum wage for workers on federal government contracts would earn over $20,000 per year. Thus the same government gives three different answers regarding what is a "living wage."
As in most other states, Pennsylvania provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one co-parent can yield $923,832 over 18 years compared to three children with three different co-parents where the revenue is a tax-free $1.82 million.
As in many other states, Pennsylvania uses people untrained in accounting to recalculate the incomes of self-employed child support defendants: "For support purposes, certain expenses that are deductible for tax purposes may not be deductible from income for support purposes. The Pennsylvania support courts will carefully scrutinize the income claimed on the tax returns of self-employed individuals for these reasons." (source: kopelaw.com, a Harrisburg-based firm's site).
Asked what he would do if he could wave a magic wand, Hark said that he would increase funding so as to eliminate the backlog of cases in the courts and speed up access to judges for hearings and trials. He also supported reducing the two-year waiting period for a divorce, which he also thought might be cut back.
Like most litigators that we have interviewed, Hark was against more guidelines and presumptions that would reduce judicial discretion. What about the fact that outcomes with the same facts might be completely different depending on the judge assigned? "Judges are human. The system comprises human beings," said Hark.
McCoy said that she wished "the court system had the ability to address custody issues in a more time manner" and was an advocate for mediation. If there is a genuine dispute about custody and each parent wants a primary role with the children and the child support that accompanies them, why does mediation work? "Some folks are just not in a position to agree to anything until they feel that they've been heard," responded McCoy. "So it is important to get emotions out of the way early on and that enables people to move on to the legal aspects of a divorce."
Phillips said that she expected the trend toward 50/50 schedules to continue, not because of statutory changes but simply because judges' thinking is evolving toward shared parenting. "Courts will require parties to submit parenting plans and prefer a 50/50 schedule unless one parent can demonstrate that it won't work." Her wishlist item was a mechanism for addressing misbehavior by parents following a divorce. "A parent may be an alcoholic but you can't prove it," she noted, "or alienation is occurring in one parent's household."
Pollock said that attorneys, like other people working in any system, tended to buy into whatever system they were engaged with. Nonetheless he supported an initial custody establishment in a non-adversarial proceeding, e.g., by a panel of psychologists and social workers. Enforcement would still be by judges, but the determination of a schedule that would be best for children would be taken out of the realm of attorney argument and judicial decision.
Was Pollock comfortable with the variation that he described in decisions from judge to judge? "It is a human system," he said, "and whatever the judge decides is, by definition, justice."