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Hello, Linda, and Welcome to JustAnswer, My name is XXXXX XXXXX I am a Pennsylvania Licensed, Practicing Attorney, with 25 years experience, including divorce. My goal is to provide you with Excellent Service,
I am so sorry to hear of your situation. What your attorney is telling you is not quite accurate.
1. If your husband has left you, but has not yet started divorce proceedings, your attorney should have advised you that you can receive Spousal Support. In fact, your attorney should have already filed a Complaint for Spousal Support. Once divorce proceedings are commenced, you would continue to receive support in the same amount, but it would be called Alimony Pendent Lite ("APL"), which is Temporary Alimony during the pendency of the Divorce proceedings.
If your husband has filed a Complaint in Divorce, your attorney should have prepared and filed an Answer to the Complaint in Divorce. Your attorney should have included in your Answer, a Counterclaim for (1) Alimony Pendent Lite, (2) Alimony to be awarded to you after the Divorce Decree is entered, (3) Interim and Final Attorneys' Fees, (4) Child Support, if there are children of the marriage, and (5) Equitable Distribution which is the division of marital assets between the parties. If the parties cannot agree between themselves how to divide the marital assets, then a Judge would decide on how to divide the marital assets.
2. "Equitable" does not mean "equal" and although the Judge starts with a division of 50%-50%, once he applies the factors as provided by the Pennsylvania Divorce Code, the result might be 55%-45%, 60%-40%, etc. These factors include, but are not limited to the following:
Length of the marriage
The relative age of the parties
The relative health of the parties
Standard of living established during the marriage
The contribution of one of the parties as a homemaker
The employability of each party
The relative education and skills of each party
The contribution of one spouse to the advancement of the other spouse's career
The assets brought into the marriage by the parties
The separate assets of the parties
So you see, there are very many factors which the Judge considers. For example, f you did not work outside the home, the Court does not penalize you. It looks to how much you did to provide a home, cooking, cleaning, entertaining for the benefit of the advancement of your husband's career, etc.
3. In addition, Pennsylvania law wants both parties to be on an even playing field and the law does not allow the spouse with the income to have an unfair advantage because he can afford to hire a lawyer to represent his interests, while his spouse would not be able to afford one. The Pennsylvania Divorce Code provides that the attorney for the spouse with the lesser income, or no income should file a Petition for Interim Counsel Fees several times during the Divorce Proceedings, asking the Judge to enter an Order, directing the spouse with the income to pay all of part of the wife's attorney's fees. The attorney would also file a Petition for Final Attorneys' fees at the end of the Divorce Proceedings for any of his fees that remain outstanding.
These are definitely issues that your attorney should have discussed with you and explained to you that you are entitled to all of the above and should have included them as Counterclaims in the Answer he prepared and filed on your behalf . He should also have told you that since you were married for at least 10 years, you will also be entitled to Social Security Retirement Benefits based on your husband's Social Security Retirement Benefits,
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they said I could ask more questions.My husband is only 60 now and receives pensions fron Fidelity and the pension that is paid by the gov when a company goes bankrupt--he worked for Delphi in ohio would this change anything? should I get a legal separation now? would that benefit me in any way?Is he responsible for any of the taxes and insurance on this house?He moved up to a cabin in crawford county-living with his parents and I have been told that i cannot keep him out of this house since his name is XXXXX XXXXX title?
Who are you referring to when you say "they" said I could ask more questions
Thank you and I look forward to your reply,
I called in to make sure they knew I was highly satisfied with your answer and they said on the phone I could ask more questions.Would the fact that he receives pensions affect any support/alimony? would it be in my best interest to file for a separation first? and is he allowed to just come into this house anytime he wants as I have been told as his name is on the title? and also told that i cannot change the locks?
Hi, Linda, Thank you very much for telling JustAnswer that you are very satisfied with my service to you, I appreciate that greatly. Of course you can ask me questions; forgive me, but I did not know who you were referring to because I was thinking in the context of your situation, :)
First, Please allow me to ask you when the house was purchased - before the marriage, or during the marriage ?
Thank you and again, I look forward to your Reply,
The house was purchased during the marriage both of our names are on it and its paid for But in need of major repairs..
Do you work in mercer county? If so could I hire you? If not-could you give me a few names of attorneys here that would be good at handling my case? My attorney NEVER filed for support for me--I went down and did it myself.
Hi, Linda, Thank you so much for your kind patience, I cannot seem to send the Answer when I press the "Answer" button on my end. It might be that my Answer is too long, so I will try to send it in 2 parts
it hasn't come through yet? I had trouble when I tried to reply to you too-
Hi, Linda, Thank you so much for your kind patience,
"1. Would the fact that he receives pensions affect any support/alimony?
The amount of Spousal Support or Alimony is affected by any pension which your husband receives. Pennsylvania has strict support Guidelines which the Court must adhere to in calculating the amount the obligor must pay in Spousal Support or Alimony. The Court's starting point in calculating the amount which your husband would have to pay you is his Net Monthly Income, meaning that his monthly income is reduced by the amount which is withheld for taxes, Social Security, Union Dues, amounts, if any which he is obligated to pay to a previous spouse or for child support for any children he has. That amount is reduced by any income that you earn (I realize you said that you do not work, I am stating the law so that I can explain the steps involved in arriving at the support amount). That would then be your husband's net monthly income. The Net Monthly Income is multiplied by 40% and that amount would be your support. Please allow me to give you a hypothetical example, using hypothetical numbers,
Example - Assume that the Gross Monthly Income of husband ("H") is $6,000
Assume that the Federal, State, and Local Withholding taxes equal $2,000
And, assume H receives payments of $1,000 from a Pension Fund -
$4,000 + $1,000 = $5,000
H's Net Monthly Income equals $5,000. If H has Alimony obligations to a former spouse, the $5,000 would be reduced by the amount he pays to a former spouse and/or for child support. That would give you his Net Monthly Income.
Let us assume that there are no payments to a former spouse or for child support, so that H's Net Monthly Income is $5,000. Rule 1610.16-2(c)(2) under which this computation must be performed states that the Net Monthly Income of the Payor is multiplied by 40%.
$5,000 x 40% = $2,000.00 - This would be his obligation to you for Spousal Support or Alimony Pendente Lite.
The amount of Alimony is calculated by the Judge at the end of the Divorce Proceedings, Provided that your Attorney has requested it in the form of a Counterclaim in your Answer to your husband's Complaint in Divorce.
The Husband's Pension and any other retirement funds will affect Equitable Distribution - Equitable Distribution is the Proceeding in which the Divorce Administrator divides the marital property between the spouses. If the spouses disagree, either spouse can file an Appeal to the Court of Common Pleas and a trial will be held and the Judge will decide how the marital property is to be divided.
"Marital Property" is defined in the Pennsylvania Divorce Code as "All Property, both real and personal acquired, earned, or purchased during the marriage, regardless of whose name is on the title and regardless of who paid for the property, except for gifts, bequests, and inheritances, which remain the sole, separate property of the recipient spouse".
The importance of this section to you is that any portion of the Fidelity Pension and the Delphi Pension which was earned during the marriage is Marital Property and as such, in which you have an interest and is subject to division upon divorce.
For example, let us assume that your husband's Fidelity Pension totals $60,000 and his Delphi Pension totals $40,000. Let us also assume that $35,000 of the Fidelity Pension was earned during the marriage and that $ $25,000 of the Delphi Pension was earned during the marriage - $35,000 + $25,000 = $60,000. $60,000 of his Pension Funds was earned during the marriage. If you are awarded 55% of the Marital Proiperty, then you would also receive 55% of his Pension Funds as your share of the Marital Property - $60,000 x 55% = $33,000 would be your share of his Pension Fund,
Your also asked,
2. "...would it be in my best interest to file for a separation first?
In Pennsylvania there is no such thing as a "Legal Separation" as there is in some of the States. In Pennsylvania, you are either married, or you are "living separate and apart". Pennsylvania does not have formal Separation Agreements signed by the parties and entered as a Court Order. The parties may choose to define their rights and obligations in an "Agreement" in which they amicably decide that they will live separate and apart and that H will pay W, $X per month and if they divorce, then H will receive this and W will receive that, period. The Agreement simply defines the rights of the parties and what each spouse will receive upon divorce. It is basically a contract which both parties agree to.
Therefore, you would not be able to be "Legally Separated" in Pennsylvania because the Pennsylvania Divorce Code does not have such a provision.
You stated that, "... The house was purchased during the marriage both of our names are on it and its paid for But in need of major repairs.........."
3. "...and is he allowed to just come into this house anytime he wants as I have been told as his name is on the title? and also told that i cannot change the locks? "
Since the house was bought during the marriage and it was the "marital residence", one spouse may not preclude the other spouse from entering the marital residence, nor can the spouse who presently occupies the property exclude the other spouse by changing the locks. If one party can buy out the interest of the other party in the house, then the house does not have to be sold. If the parties cannot agree, then the Judge will Order that the house be placed on the market to be sold and that the sale proceeds shall be divided between the spouses in the same percentage as the udge has decided for the division of the other Marital Property. In the example (above) that I gave, I said let us assume that you were awarded 55% of the Marital Property. Now, let us assume that the property were placed on the market by Order of theJudge and the house was sold and the net proceeds equaled $200,000.
$200,000 x 55% = $ 110,000 would be your 55% share of the net proceeds from the sale.
If your attorney files a Petition for Spousal Support, he can ask that your husband pay you spousal suort according to the Pennsylvania Supreme Court Guidelines and also to pay say, 40% of the mortgage loan every month. He could also ask that the Judge Order your husband to pay for the repairs, but the Judge would probably divide the costs of repair between the two of you because your husband will be paying you Spousal Support.
I would have sent your Answer sooner, but my typing leaves a lot to be desired :)
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