Family Law

Protecting Kids in Divorce

Posted on May 3 2013 by Todd Spivak and Rebecca Canterbury

In Pennsylvania, courts generally frown on parents who fail to protect their children from conflicts during divorce.

If you’re engaged in a child custody dispute, protect your children from conflicts between you and your partner. Don’t say anything against your partner, no matter how provoked you might be, because anything could become evidence.

Avoid the following behavior:

Asking your children questions about the other partner;

Discussing court with your children or within their hearing;

Asking your children to compare you and your partner;

Giving your children choices between their two parents;

Exposing your children to your negative emotions.

To speak with a Pittsburgh family law attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

5 Common PFA Misconceptions

Posted on April 25 2013 by Todd Spivak and Rebecca Canterbury

Many people have misconceptions about Protection From Abuse (PFA) orders. As a result, they might accept a PFA instead of fighting it. Or they might violate the PFA unknowingly, resulting in criminal charges. Protect yourself by reading Spivak Law Firm’s five most common PFA misconceptions:

Misconception #1: “It doesn’t matter if I get a PFA because I don’t want to see the plaintiff anyway.

Even if you don’t want to have contact with the plaintiff, we strongly advise you to contest the PFA. A PFA stays on the civil docket and can haunt you for years, especially if you seek a job that requires a background check. Protect your future by hiring an experienced PFA attorney to try to get the PFA vacated, withdrawn, or dismissed.

Misconception #2: “The PFA means we can’t contact each other.”

In fact, the PFA means the defendant cannot contact the plaintiff. But the plaintiff can contact the defendant because the PFA restricts the defendant only. If the plaintiff contacts you while the PFA remains in place, do not respond. The plaintiff could be setting a trap to get you arrested. The plaintiff may always seek to withdraw the PFA.

Misconception #3: “I won’t get in trouble for having somebody else tell the plaintiff to drop the PFA.”

A PFA is a no-contact order. No contact includes physical contact as well as phone calls, texts, emails, faxes, and regular mail. It also includes third-party contact. Instructing another person to give any message whatsoever to the plaintiff is a violation of the PFA that could result in criminal charges.

Misconception #4: “A PFA can’t be used to take my kids away.”

Plaintiffs sometimes misuse PFAs to gain leverage in child custody and divorce cases. Plaintiffs may temporarily receive sole custody of a child until the final PFA hearing, causing defendants to go weeks or even months without seeing their kids. Custody provisions are often included in final PFAs that stay in place indefinitely.

Misconception #5: The plaintiff can’t afford a lawyer so I don’t need to get a lawyer either.

In many Pennsylvania counties, including Allegheny and Westmoreland Counties, plaintiffs may receive a free lawyer regardless of income. In these counties, free lawyers are offered to all plaintiffs, not just low-income plaintiffs. Spivak Law Firm strongly advises defendants to hire an experienced PFA attorney to level the playing field.

To speak with an experienced PFA defense attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Defining “Income” for Child Support Cases

Posted on April 25 2013 by Todd Spivak and Rebecca Canterbury

Child support is largely based on parents’ income. At a child support hearing, both parents are required to bring federal income tax returns, including W-2s, and pay stubs for the last six months.

But what is “income” for child support purposes? According to Pennsylvania law, incomes includes:

–wages, salaries, bonuses, fees and commissions;

–net income from business or dealings in property;

–interest, rents, royalties and dividends;

–pensions and all forms of retirement;

–income from an interest in an estate or trust;

—Social Security disability benefits;

–Social Security retirement benefits;

–temporary and permanent disability benefits;

–workers’ compensation;

–unemployment compensation;

—alimony;

–lottery winnings;

–income tax refunds; and

–insurance compensation or settlements.

Income does not include public assistance and Supplemental Security Income (SSI) benefits, Social Security payments for a child, and foster care payments.

To speak with a family law attorney, contact Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Awarding Alimony in Pennsylvania

Posted on April 17 2013 by Todd Spivak and Rebecca Canterbury

In Pennsylvania, courts generally disfavor granting alimony, reasoning that divorce should result in a clean break. Alimony, by contrast, links the parties together potentially for years post-divorce by forcing one party to pay the other on a regular basis.

Pennsylvania judges prefer to handle financial inequities resulting from divorce through property division in equitable distribution, the process for dividing marital assets and debts based on principles of fairness.

But courts will grant alimony in limited circumstances – for instance, to pay for one party’s education in order to increase his or her earning capacity.

To learn more about whether you may be entitled to alimony or other forms of spousal support, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Pennsylvania Child Support Guidelines

Posted on April 13 2013 by Todd Spivak and Rebecca Canterbury

Pennsylvania and 36 other states apply the Income Shares Model for calculating child support. Under this model, children of separated, divorced or never-married parents are entitled to receive the same proportion of parental income that they would have received if the parents lived together.

Several economic studies estimate the average amount of household expenses for children in intact households. These studies show that the proportion of household spending devoted to children is directly related to the level of household income and to the number of children.

Pennsylvania’s child support guidelines represent average expenses on children for food, housing, transportation, clothing and other miscellaneous items that are needed by children and provided by their parents. The guidelines, which are established by rule by the Pennsylvania Supreme Court, are based upon the reasonable needs of the child.

To speak with a Pittsburgh family law attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Post-Gazette Features Spivak Law Firm

Posted on March 28 2013 by Todd Spivak and Rebecca Canterbury

The Pittsburgh Post-Gazette has featured Spivak Law Firm’s article on ways to fix Pennsylvania’s Protection From Abuse (PFA) law to limit false claims of abuse.

Although a PFA aims to protect victims of domestic abuse, the law itself is frequently abused by plaintiffs who file bogus PFAs to get defendants evicted from a shared residence or to gain leverage in a divorce or child custody matter.

In our article, Spivak Law Firm proposes five common-sense solutions for curbing abuses. Our recommendations include criminally prosecuting filers of bogus PFA petitions and removing PFA records from the public database if the order is withdrawn or dismissed.

Spivak Law Firm, which focuses on family law and criminal defense, was featured in The Pittsburgh Post-Gazette last September in an article about child custody rights in Pennsylvania. The local newspaper also spotlighted Spivak Law Firm in its South Notables section and includes us in its business directory.

To speak with an experienced family law attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Improving Pennsylvania’s PFA Law

Posted on March 28 2013 by Todd Spivak and Rebecca Canterbury

A Protection From Abuse (PFA) order has devastating consequences for defendants. But people who file bogus PFAs often face no consequences whatsoever.

“Want somebody out of the house? File a bogus PFA!” Allegheny County Court of Common Pleas Judge Kim D. Eaton recently told Spivak Law Firm for an article published in The Pittsburgh Post-Gazette.

A PFA is a no-contact order that aims to restrict perpetrators of domestic violence from contacting their victims. A PFA can also evict an alleged abuser from his home, eliminate his constitutional right to own guns, and forbid him from seeing his kids.

Family law attorneys deride the PFA system as “poor man’s custody” because it allows people to obtain child custody orders while circumventing the formal custody process and associated court fees.

In Allegheny County, people who file PFAs are entitled to free lawyers who strengthen their PFA petitions and represent them at the PFA hearing.

Defendants do not get a free lawyer, and at least three-fourths of defendants in Allegheny County attend the PFA hearing pro se. They are not entitled to a public defender because a PFA is a civil order, though violating it can result in a six-month jail sentence.

Getting a PFA is easy. In 2011, judges in Allegheny County approved a whopping 97 percent of all initial PFA petitions, which are based solely on a plaintiff’s allegations. The defendant gets no opportunity to respond to the allegations until the PFA hearing about 10 days later.

During that 10-day span, defendants may be booted from their shared residence and restricted to having limited phone contact with their children. Defendants sometimes cannot return home even to get essentials such as toiletries or work uniforms.

The temporary PFA instantly becomes a permanent public record that is easily accessible for free online by friends, neighbors, co-workers, and employers. The stigma of the PFA may permanently damage the defendant’s reputation and relationships.

At a PFA hearing, the plaintiff’s lawyers will often ask the defendants directly if they are willing to accept a short-term PFA. Defendants may accept such an offer without appreciating the far-reaching consequences.

But people who file bogus PFAs often suffer zero consequences.

Pennsylvania law states that a person who files a PFA “in bad faith” must pay the defendant’s attorney fees. But proving bad faith is impossible in most cases because of the “he-said, she-said” nature of domestic violence. A person who files a bogus PFA may also be criminally prosecuted, but this rarely happens.

“The court’s attitude is: ‘You won, the PFA was dismissed, be happy,’” says family law attorney Christine Gale.

Here are five common-sense solutions for curbing abuses in Pennsylvania’s PFA law:

First, there should be a colloquy for PFA defendants to ensure that they understand the consequences of accepting a final PFA. It could be as simple as checking boxes on a standard form.

Second, courts should make it easier for allowing defendants to recover attorney fees when a PFA is withdrawn or dismissed.

Third, district attorneys should criminally prosecute what Judge Eaton calls “serial filers” of bogus PFAs.

Fourth, law schools and legal aid clinics should partner to train students to provide free representation for low-income PFA defendants.

Fifth, temporary PFAs should be removed from the public database when the PFA is later withdrawn or dismissed.

Such measures would strengthen an important law by limiting the damage caused by bogus PFAs.

To speak with an experienced PFA lawyer, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Is Divorce Bad for Children?

Posted on March 20 2013 by Todd Spivak and Rebecca Canterbury

Is divorce bad for children? “Yes, obviously,” may be your knee-jerk response, but a recent article in Scientific American points to studies showing that in the long run divorce adversely affects only a small percentage of kids.

There are many conflicting studies about the long-term consequences of divorce on children. According to University of California professor Judith Wallerstein, most adults who were children of divorce experience depression and relationship issues. But research by University of Virginia professor E. Mavis Hetherington shows that only 15 percent of adult children of divorce experience greater problems than those from stable families.

There seems to be a consensus, however, that many children experience short-term negative effects from divorce, such as anger and anxiety. According to Hetherington’s study, such effects typically diminish or disappear by the second year post-divorce.

At Spivak Law Firm, we believe strongly in protecting children through the divorce process. We handle many high-conflict divorces with issues of child custody, child support, and protection from abuse (PFA). To speak with a Pittsburgh family law attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Understanding Child Custody in Pennsylvania

Posted on March 16 2013 by Todd Spivak and Rebecca Canterbury

When seeking custody of a child in Pennsylvania, it is important to understand the different types of custody available.

First, distinguish between “legal custody” and “physical custody.”

“Legal custody” refers to the right to make major decisions affecting the best interests of a minor child, including medical, religious, and educational decisions. Under Pennsylvania law, there is a presumption that “legal custody” is shared equally by both parents.

“Physical custody,” on the other hand, refers to the actual physical possession and control of a child. Custody disputes usually arise over issues of “physical custody,” as parents disagree about who gets the child and when.

There are several types of “physical custody.”

“Shared physical custody” refers to when parents divide time with the child equally – for example, on a week-on, week-off basis. It does not have to be 50/50; even a 60/40 time split based on overnights spent with the child is considered “shared physical custody.”

Another typical custody arrangement occurs where one parent has “primary physical custody” and the other parent has “partial physical custody.”

“Primary physical custody” refers to the right to have physical possession of a child for the majority of the time.

“Partial physical custody” means the right to take possession of a child away from the custodial person for a certain period of time.

For example, a parent who gets the child every other weekend and for a few hours during the week has “partial physical custody,” whereas the other parent has “primary physical custody.”

Finally, “visitation” means the right to visit a child, but does not include the right to remove the child from the custodial parent’s control. “Visitation” is frequently granted to grandparents or a parent who has been out of the child’s life for a substantial amount of time.

“Supervised visitation” refers to when a court orders that a supervisor be present during the visit. This usually occurs when there are issues of physical abuse or substance abuse that could endanger a child’s welfare. If no such issues exist, the arrangement is known as “unsupervised visitation.”

It is important to remember that child custody arrangements can always be modified so long as the parents mutually consent. To speak with an experienced child custody attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Getting Ann’s PFA Dismissed

Posted on March 11 2013 by Todd Spivak and Rebecca Canterbury

For the first time, Ann went several days without seeing her child. The reason? Ann’s husband filed a Protection From Abuse (PFA) restraining order against her. The PFA booted Ann from her home and granted temporary custody of their child to her husband.

Ann’s husband said she hit him after discovering that he was having an affair. He claimed to be afraid of her.

In domestic violence cases, women typically seek protection from their boyfriends or husbands. But Spivak Law Firm has also successfully defended many women accused of abuse by their male partners.

At Ann’s PFA hearing in downtown Pittsburgh, her husband didn’t back down. He wanted to permanently evict Ann from their home and to get primary custody of their son. Both parties testified before a judge.

We aimed to show that Ann’s husband was abusing the PFA system to gain leverage in their imminent divorce and custody disputes. We argued that Ann’s actions did not rise to the level of a PFA because it was a single incident and there were no injuries.

The hearing lasted more than two hours. In the end, the judge dismissed the PFA.

“Thank you so much for everything,” Ann wrote us later that evening. “I couldn’t have done this without you. I am home with my son, I couldn’t be happier.”

Spivak Law Firm provides strong defense at PFA hearings throughout the Pittsburgh area in Allegheny County, Westmoreland County, Washington County, Beaver County, and Butler County. To speak with an experienced PFA defense attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.