Introduction to Family Law in York
Family law in York encompasses the legal issues related to family relationships, such as divorce, adoption, child custody and guardianship. It includes procedures to govern the family courts, as well as the rights of individuals to manage their property during their lifetime and upon their death. Recent legislative changes have added to the complexity of the subject of marriage, with new laws recognizing same-sex marriage at both the state and federal level.
Divorce: is the termination of the marital status of two persons who are validly married. The law permits the filing of a divorce complaint under circumstance which may include irretrievable breakdown of the marriage and/or fault grounds such as adultery, desertion, cruel and barbarous treatment, indignities of treatment, bigamy and more. Most divorces filed in York County are filed on the basis of irretrievable breakdown of the marriage, and are titled as No Fault Divorce Actions, which require the couple to be separated for about one year, although those cases may be shortened through agreement.
Named parties: no person may appear as a party in a civil action, including a divorce action, except as a representative of the party’s interest, or as an attorney for the party, or as a guardian ad litem or custodian ad litem .
Guidelines and spousal support: the local rules of York County provides for the use of the Guidelines in the determination of any spousal support award.
Support Joint: The court may combine the two cases as a Joint Support Action. After the two cases are combined, the court may order support against the higher income party.
Child custody: are resolved in the best interest of the child, considering the individual circumstances of the child, and taking into account sixteen facets, including the parental capacity to care, the interaction of the child with parents and siblings, and the availability of extended family, school, home, community and culture.
Adoption: a procedure by which a child’s residence is established with persons other than the child’s birth parents having the full care, custody and control over the child. It is generally governed by a statute known as the Adoption Act and any other applicable statute.
Guardianship: the court appoints a guardian over the person of an incapacitated person or his estate, or both. The statutes that govern these actions are the Probate, Estates and Fiduciaries Code, and the Mental Health Procedures Act.
The Lowdown on Divorce Law
The divorce process in York, while following English family law guidelines, still retains its unique aspects and procedures. The process begins when one spouse files a petition, stating the reasons for filing a divorce. This includes proving one party has lived in the jurisdiction for at least one year. If both parties agree to the divorce, they can apply for a consent order, which makes the process more streamlined. The divorce becomes final after six months, when both parties receive a decree absolute. At this point, arrangements regarding child custody, visitation and financial settlements need to be agreed upon. Divorce does not end the interest of a spouse in any estate. One spouse may apply to the court or the agreement may state what assets each party will take. York district judges will review any agreements. However, district judges are required to make a decision in the interests of children before asset matters.
At the beginning of the divorce process, parties will start the divorce petition. Using Form D80, you must state all entitlements obtained during marriage, such as houses, autorised vehicles, savings accounts, pensions and lifetime annuities. Your consent order must include what happens to these assets upon divorce. In many cases, the parties simply do not own enough assets between them to lead to a complex distribution. This is particularly common among parties who had no joint assets by the time they separated. In cases where there is a large amount of marital property, however, the court must assess the value of each asset as well as weigh up future considerations and where each party will live.
Getting the Scoop on Child Custody and Support
When it comes to child custody, courts in York consider and determine the best interests of the child. The "best interest" factors have been established by case law, and include the following:
• Which parent was the more responsible party during the parties’ relationship;
• The ability of each parent to provide care for the child in terms of physical and mental stability, availability, and level of involvement in the child’s life;
• The prior history of each parent and their current fitness to care for the child, including both physical and mental considerations;
• Stability of a proposed home for the child, including the child’s own preference as to his/her home if the child is of sufficient age and maturity;
• As long as it does not have an adverse impact on the child, how the parent seeking custody fits into the child’s extended family and what type of relationship they have with them;
• Consideration of the prior wishes of the child if the child is of sufficient age and maturity; and
• The willingness of the parents to encourage a close and continuing relationship with the other parent if the child is to be residing primarily with one parent.
If one parent can prove that some best interest factor precludes the other parent from having custody, then the request or petition for custody from the parent seeking custody can fail simply upon the basis of that factor.
In York, once you have resolved the issue of who will have primary custody of the child physically, or previously been awarded primary custody by the court, then child support must be set according to the Pennsylvania Child Support Guideline. However, these Guideline calculations will not necessarily govern the issue of alimony and/or alimony pendente lite. In fact, they are distinct matters which are handled separately in our system under the divorce statute and are outside of the child support system altogether.
If the parties cannot agree on the child support amount or the Guideline calculation is in dispute, then the process calls for a hearing before the domestic relations hearing officer on the date provided in the scheduling order. Once the hearing is completed, the hearing officer will prepare a report detailing the Guideline calculations of the parties and what the order should be. That report must be handed over to the parties for a period of at least twenty days to permit them to review it and object to it if necessary. If there are no objections to it, then it will be presented to the judge for signing without a hearing.
If there are objections to the report, then another hearing is scheduled before the judge, who will then make an independent decision as to the hearing officer’s recommendation. The judge may or may not agree with the hearing officer’s recommendation.
Adoption Explained
Adoption is a powerful means to expand a family. The overwhelming majority of adoptions advance the interests of all involved, and lawyers can help ensure each step of the process stays on track. Adoption law in York can be somewhat complex. The circumstances surrounding each adoption will dictate how effectively it proceeds.
Here are a few of the more important concepts concerning adoption law in York:
Step-parent Adoption – This form of adoption is very common in York for couples who have experienced loss or separation. It assumes a parent/child relationship exists between the child and one of the spouses, but the other spouse (a step-parent) wishes to formally adopt the child. The process is generally straightforward since there is not always a need for birth-parent consent.
This form of adoption is also not always appropriate when the children are over the age of 12. They must provide consent to the adoption prior to it proceeding.
Foster Care Adoption – The foster care process in York involves removing children from their homes for their protection. The state must presume that removal is in their best interest. Sometimes, circumstances promote the opportunity for adoption. This is particularly common if a foster family has provided the most consistent care for the children.
Unlike step-parent adoptions, foster care adoptions often involve multiple parties. For instance, both biological parents will need to provide consent before the court can grant the adoption.
International Adoption – Simple intercountry adoption requires the services of an accredited agency. They will need to work with various key officials in both countries to facilitate the arrangement. These arrangements typically take longer than domestic adoption, and they require a lot of diligence on behalf of everyone involved.
The international adoption component of adoption law in York, in particular, is often complicated and requires a legal professional’s guidance.
Breaking Down Prenup and Postnup Agreements
In the realm of family law, one of the most critical requirements for couples planning to marry or who are already married is the creation of a prenuptial or postnuptial agreement. These agreements, while often difficult to discuss with your spouse to be, or with your spouse when the marriage has broken down, are crucial in the protection of your assets, including your family business.
While the more common agreement is the prenuptial agreement, local lawyers at McNees Wallace & Nurick, republican and democratic, refer to the agreement that is signed at the time of marriage as a pre-marital agreement. This is seen as a more accurate description of the nature of the document between two people about to be married.
A pre-marital agreement is an agreement that is entered into before the parties marry and can cover a variety of issues. A prenuptial agreement is an agreement entered into prior to marriage that sets forth how assets and debts will be equitably divided in the event of a divorce and is particularly important if significant assets will be brought into the marriage. The prenuptial agreement can also help to determine how assets will be divided in the event of an untimely death or other circumstances that result in the termination of the marriage. In Pennsylvania, any individual with net worth can enter into a pre-marital agreement to protect his or her assets and property. Beyond addressing marital property, a prenup can cover such matters as spousal support, life insurance coverage, alimony and premarital debt. Examples of what can be addressed include the following:
- How property will be divided in the event of divorce
- Determining the value of property in the event of a divorce
- How future earnings will be divided
- Determining which party is responsible for debt incurred prior to and during marriage
- How spousal support will be divided in the event of divorce
- Provisions for spousal support , including life insurance policies and medical coverage
- Custodial rights of children
- Provision for the right of exclusive use or occupancy to dwellings in the event of divorce
It’s important that both parties seek independent counsel when creating these agreements, and not only because they are legal documents. Having the advice of an attorney who is not trusted and who will not withhold information from you, may be more necessary than the participation by your future spouse.
In addition to the creation of the pre-marital agreement, the clients that we serve predominantly in the Lancaster area are more frequently entering into post-marital agreements. Post-marital agreements are similar to pre-marital agreements, but their purpose is to address issues unique to couples who have already married. For example, you and your spouse may be interested in creating a post-marital agreement if:
– You want to secure property rights for the spouse with potentially fewer assets.
– You want to protect your family from the spouse with potentially more assets.
The parameters for post-marital agreements are similar to those of prenuptial agreements. Like prenups, post-marital agreements cover:
- Future assets and debts
- Value of assets in the event of divorce
- Spousal support
- Child custody and support
If you and your spouse want your children to assume ownership of your assets or family business, you can identify specific beneficiaries in the document. We can also draft a post-martial agreement for you with a jurisdiction or venue clause that stipulates any disputes will be handled in the state you live in or another state of your choosing.
In the event of divorce, a clear post-marital agreement can be invaluable. It gives you and your spouse a foundation for negotiation. It also becomes legally binding and protects you from loss. If you do not have an agreement, you and your spouse can be forced into a legal situation in which assets are likely to be lost.
Laws Regarding Domestic Abuse and Restraining Orders
Family Law in York encompasses provisions related to domestic violence and gives citizens the ability to seek protection in cases of violence that may occur at the hands of a family member. Domestic violence is no less of a problem in York County than in other areas of the state, and significant protections and rights are afforded to victims. Victims of domestic violence have several options to pursue protection through legal means. The Protection from Abuse Act provides comprehensive remedies for victims of domestic violence and sexual assault. Protection from Abuse orders enter injunctions and orders with wide-ranging effects to prevent acts of abuse against victims of domestic violence.
Protection from Abuse orders are commonly referred to as "PFA" orders or injunctions and can provide significant protection to victims of domestic violence. PFA’s can range from prohibiting your abuser from coming within a set distance of your home to prohibiting your abuser from having any contact with you at all via telephone, e-mail, text, social media, etc. However, those seeking to take advantage of the Protections of the Protection from Abuse Act also need to be aware that false allegations of domestic abuse can have dire consequence for the person you are accusing, even if you lose in court. The disclosure of false or frivolous allegations of domestic abuse can result in criminal charges being filed by a District Attorney and subsequent civil damages. Domestic violence is a real and terrifying problem facing many in Pennsylvania, but we must also ensure that legitimate legal proceedings for protection are not abused.
Finding a Family Lawyer in York
Selecting the right family lawyer is crucial to ensuring that your legal affairs are handled effectively. Given the personal nature of family law, from divorce and child support to adoption and more, the lawyer-client relationship should be based on trust, understanding, and a shared vision of how to achieve your legal objectives. The following tips should be helpful in evaluating potential legal services for your family law matters:
1. Your family lawyer can only protect your legal rights by working in your best interests at all times. This is an ethical obligation that cannot be taken lightly and should be fully enforced.
2. A family lawyer should act in a professional manner while still being personable and approachable. You should feel that you can openly discuss all aspects of your case with your lawyer without hesitation.
3 . Family law issues can often be fractious and emotional, so choosing a lawyer with specialized experience who is committed to a swift resolution can be invaluable. Family lawyers do not ‘do it all’ and it is surely better to have a dedicated legal representative rather than one who dabbles in a multitude of fields. There are numerous family lawyers in York who have vast and rich experience when it comes to family law and are more equipped to handle complex family law issues.
4. Experienced family lawyers provide reasoned advice while never being afraid to be honest with you if legal matters are likely to become contentious and vigorous. This does not mean that your family lawyer is out to cause conflict but, given the sensitive nature of family law, any family lawyer who attempts to sugar coat and twist the truth should not be seriously considered.