Prenuptial Agreements – an ounce of prevention may be worth ten pounds of cure

by Jonathan C. Noble, Esq.

Prenuptial agreements in Pennsylvania can save tens of thousands of dollars in costs and fees in the event of a divorce.  It can also save your business, limit your exposure to your spouse’s non-marital debts, limit possible alimony payments, and safeguard other valuable assets.

A prenuptial agreement (also known as a premarital or an antemarital agreement) is a legally binding agreement between two people who are planning to marry. The goal of this post is simply to have you think about some of the advantages of using a prenuptial agreement.

While every situation is different, nobody goes into a marriage hoping the marriage will end. Unfortunately, many marriages do end. Some end amicably, with mutual respect, and without much disagreement. Many others, not so much. While bringing up the subject of entering into a prenuptial agreement can be stressful in certain situations, it is certainly worth speaking to a family law practitioner about how a prenuptial agreement can help safeguard you, safeguard your business, safeguard your assets, and safeguard your children from a prior marriage in the event your marriage ends.

Jonathan C. Noble, Esq.
While the subject of entering into a prenuptial agreement can be a little stressful in certain situations, it is certainly a good idea to consider. Consult an attorney to help you determine if a prenuptial agreement makes sense for you.

A prenuptial agreement can help streamline property distribution in the event of a divorce.

In Pennsylvania, if you divorce, your assets are categorized as either marital or non-marital property. Marital assets need to be valued, so they may be divided properly in the event of a divorce.

Marital property is broadly defined as property acquired during the marriage, or the increase in value (during the marriage)  of non-marital property. For example,  you may own rental property prior to getting married. Any increase in value of the rental property during the course of the marriage is considered marital property and subject to equitable distribution should you divorce.

Non-marital property is broadly defined as property acquired before the marriage, or property acquired by gift or inheritance. This is important: Non-marital property also includes anything normally considered marital property that you and your (soon-to-be) spouse agree to designate as non-marital property in a properly drafted and executed prenuptial agreement. That could include a business you own and have built for many years.

There are many reasons why a prenuptial agreement makes perfect sense for many people. Both women and men often initiate the use of a prenuptial agreement upon contemplating a second (or third) marriage. One of the many benefits of having a prenuptial agreement is that a prenuptial agreement can serve to protect the interests of children from a previous marriage.

Enforceability of Prenuptial Agreements in Pennsylvania

In broad terms, Pennsylvania courts have generally treated prenuptial agreements using contract law principles. Normally, a prenuptial agreement must be executed voluntarily and with a full and fair disclosure of a party’s assets and liabilities.  (If a party voluntarily waives the full and fair disclosure of assets and liabilities requirement in writing, a prenuptial agreement may still be upheld in Pennsylvania). Full and fair does not mean “exact” in the context of a prenuptial agreement.

There are several very important steps to making sure your prenuptial agreement is both enforceable in Pennsylvania and/or decided under Pennsylvania law should you move to another state during the course of your marriage or move to another state after you have separated. You should also leave plenty of time before the wedding to finalize and properly execute a prenuptial agreement. One rule of thumb is to try to properly handle the prenuptial agreement before the wedding invitations go out. Both parties should have time to examine the contents and consult with counsel of their choosing if they so desire.

If getting married is in your future, you should seriously consider consulting with a family law attorney who can guide you through the process of using a prenuptial agreement in an effort to protect your assets in the event your marriage ends.

Similar to purchasing insurance, you hope to never need to use a prenuptial agreement, but if you do, it could be well worth your investment.

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Factors family law judges in Pennsylvania must consider in a custody case – a basic overview

by Jonathan C. Noble, Esq.   5 minute read

Think about the facts of your child custody case and how the court will analyze your case specific facts, using the sixteen child custody factors as a lens. 

A few years ago, the Pennsylvania legislature enacted a new child custody law. An important part of the new law requires family court judges in Pennsylvania to consider at least sixteen separate

Jonathan C. Noble, Esq.
Jonathan C. Noble, Esq.

factors when ordering any form of custody. Not every factor will be relevant in every custody matter. If you are in the midst of a divorce or separation in Pennsylvania, and you cannot come to a custody agreement with the other parent of the child (or children) involved, you should familiarize yourself with the 16 custody factors. Family law courts in Pennsylvania must use the 16 factors contained in the new custody law to guide their custody decisions. The polestar consideration is, was and always will be “what is in the best interests of the child”.

Here below are the sixteen Pennsylvania child custody factors. Think about how your specific situation will be viewed by a judge using the custody factors as a lens. The custody factors may also be found under 23 Pa.C.S. §5328(a) in the Pennsylvania Consolidated Statutes.

§5328. Factors to consider when awarding custody.  

(a) Factors — In ordering any form of custody, the court shall determine the best interests of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of a party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child’s education, family life and community life.

(5) Availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgement.

(8) The attempts of a parent to turn the child  against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing  relationship with the child adequate for the child’s emotional needs.

(10) Which party is likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

(16) Any other relevant factor.

Again, with limited exception, these sixteen factors are the basic criteria by which a family law judge should make a custody determination in Pennsylvania. Only the judge can decide how much weight to give any one factor. Some factors can, and should carry more weight than other factors. Every case is different. Every judge is different. Factor sixteen (any other relevant factor) gives a court the wide range ability to look at any other relevant factors in your specific case. Conviction of certain criminal offenses will also be taken into consideration.

If the parents of the child can agree on a custody arrangement that meets the best interests of the child, without court intervention, that is usually the best scenario. Parents (and those who stand in loco parentis to the child) are normally in the best position to know what is truly in the best interests of their own child.

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Family pets and divorce in Pennsylvania – dogs are property in the eyes of the law, they are not treated as children

by Jonathan C. Noble, Esq.

Based on Pennsylvania equitable distribution law, if you come to the marriage with a pet, it will be your property if the marriage ends in divorce. 

Golden Retriever at the Museum
“A Golden Retriever at the Museum” appears courtesy of the artist Tom Mosser. Facebook Page: “A Golden Retriever at the Museum”.

In Pennsylvania, with limited exception, any property acquired during the marriage is martial property, subject to equitable distribution. This may include, but is not limited to money, real estate, retirement savings, furniture, artwork, dogs, cats, and other pets. In Pennsylvania, your family pet is treated as property, subject to equitable distribution, just like a piece of art, a piece of furniture, or a bank account. When a person owns a pet prior to getting married, the pet is normally considered pre-marital property. That means the person is entitled to keep the pet as their separate property upon separation or divorce.

In Pennsylvania, there will not be an enforceable “custody schedule” for your family pet. 

Dogs, cats and other pets are not subject to a custody schedule under Pennsylvania law.  Even though most people love their pets as if the pet was a child, the courts in PA do not treat pets as children. Any agreement regarding a custody schedule of a family pet upon divorce will not likely be enforceable in court. Of course, if the parties remain on good terms, they can informally decide whatever arrangement suits the dog and themselves.

Like everything else in a property settlement agreement, it never hurts to “think outside the box” where a family pet is concerned.

Just like a piece of furniture, an automobile, or any other piece of marital property, it is certainly possible to negotiate who will get the universally loved family dog. For example, if the other party wants an item that you may not particularly care about, perhaps a deal can be worked out whereby you would take the dog, but relinquish rights to the item coveted by the other party. “Pet visitation” is usually not a good idea in the context of a divorce, since it can prolong the ability of some people to move on with their life. It can also be another source of potential conflict.

Children, shared physical custody, and family pets. Something to think about. 

Many divorcing parties have a shared physical custody arrangement for their children. Sometimes family pets, (especially dog breeds that are historically good with children) travel back and forth with young children who spend time with both parents in two separate households.  Some label the dog a “transitional object”, which provides a sense comfort and security to children who now must spend time in two households through no fault or choice of their own. If the parties can agree to such an arrangement, and the children want to be with their family pet in both households, it is usually a positive experience in an otherwise negative situation for the children. Of course, the dog must have the right disposition to travel between households without problems.

Laws vary widely from state-to-state. Consult an attorney licensed in your jurisdiction for legal advice on the subject.  

In cases where the parties cannot agree on what happens to a pet, the courts are left to decide. Some states do recognize certain factors regarding where family pets should reside when parties separate and divorce. Courts may inquire as to who  primarily cares for the pet. This may include who usually feeds the dog,  takes it to the vet, walks the dog, etc. In rare cases, the court can order the pet sold, with the proceeds split between the divorcing couple.

The more issues resolved by the parties, without court intervention, the better. Normally, nobody knows your pet (or children) better than you do.

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Driving costs out of the divorce process – part one

Jonathan C. Noble, Esq.
Jonathan C. Noble, Esq.

One way to help drive costs out of the divorce process is to gather as much financial information as you can, especially while you still have access to it. Some lawyers call this early information gathering as “informal discovery”. The more information you can gather early in your divorce process, the more you will help expedite your divorce to a successful conclusion, while saving costs and fees in the process. Hopefully, this is part of your overall strategy, while protecting your legal rights.

Many divorces involve a process known as discovery. Discovery is basically the act or process of finding or learning something that was previously unknown. Many lawyers use discovery techniques to obtain financial documents and other key pieces of information. Bank records, tax returns, property appraisals, business records, investment and IRA account statements, etc. are needed to determine and accurately divide marital assets.

If you have access to this information, you should make copies and put the copies in a safe place, preferably, outside the marital home. When gathering and copying the information, it is better to be over inclusive rather than under inclusive.

Obviously, it is not always possible to obtain all the necessary information. Your lawyer knows this.  In many households, one spouse or the other typically handles the finances. That spouse usually stores the documents or knows their whereabouts. However, you have every right to obtain and copy anything you own.

Your lawyer can subpoena banks and financial institutions for any missing documents. There are other legal methods to obtain missing documents directly from your (soon to be) ex-spouse. All of this extra work can be time-consuming and/or expensive. The more prepared you are at the front end of the divorce process, the more you can help drive some of your costs and expenses out of the divorce process. 

This is just one way you can take a proactive role in lowering your overall costs in divorce.

Finding and choosing the right family law attorney – 4 points to consider

Choosing the right attorney for you is one of the most important elements in any family law matter. Here are a few things you may wish to consider:

Jonathan C. Noble, Esq.
Jonathan C. Noble, Esq.

#1) Depending on the nature of your case, you must have a very good working relationship with your family law attorney. A good working relationship with your attorney may help you achieve a better result, and do so more quickly. Thorough and honest two-way attorney-client communication is one essential element for getting good results, and moving on. 

There is no way around it. You will likely spend considerable time communicating with your family law attorney. If you don’t get a good feeling during your initial meeting, speak to another attorney. If you are not comfortable, you are certainly entitled to, and frankly should, meet with another attorney before hiring anyone. You are free to consult with as many attorneys as you like prior to hiring one.

Consulting with an attorney to see if there is a good fit does not mean you must hire the attorney. Some attorneys may charge a reduced fee for an initial consultation. Some attorneys offer a free initial consultation without really getting to know the details of your family law matter. Never feel pressured to hire an attorney. Choosing an attorney is an important decision that must be made with care.

Consider this: if you needed major surgery, you would probably get a second or even a third opinion. Going through a divorce or other family law issue is an important life event. Search vigorously, choose wisely.

#2) Every family law matter is somewhat unique. It is important to have a plan of action and set goals early in the process. You do not want to get aboard a runaway litigation train. 

Nobody ever goes into a marriage expecting to need to find and hire a divorce lawyer. It is normal to be confused. It is normal to have your emotions turned upside down. You will have many questions along the way. This is perfectly normal. Your lawyer should guide you through the sometimes foggy legal landscape. Relying on advice from a friend or loved one is usually not a substitute for hiring an attorney.

Many people are ambivalent about getting a lawyer involved. It is easy to understand why. I do not take it personally. Unfortunately, if a divorce or other family law matter seems imminent, the longer you wait, the messier things may become. In the context of a divorce, preparation is important. Setting an early course of action, guided by a client’s realistic goals, is very often a successful formula. A good attorney will be pragmatic, will be honest with you, will help you keep things in perspective, and will keep the process moving forward while zealously advocating for your interests. All while keeping you informed.

#3) Make sure you and your lawyer see the forest from the trees. You must try to work toward the same goals from day one.  Making the process more difficult than it needs to be is almost always counterproductive. 

In a divorce action, be sure you understand all of your options. Divorce Mediation, Collaboration, Binding Arbitration, Litigation, etc.

Pick your battles wisely. As I mentioned in another post, the more you and your (soon to be) ex-spouse can agree on, without unnecessary conflict, the less financially and emotionally draining the divorce process will be. Burning the earth for the sake of winning a relatively unimportant battle can be counterproductive, while increasing your costs. Sometimes a fine line exists between zealous representation to protect a client’s interests and acting like a junk yard dog.  A skilled family law attorney need not act like a junk yard dog to get excellent results.

 #4) Ask questions. Stay informed. Get educated about the process. It will help you overcome fear and move forward.

Some counties in Pennsylvania and New Jersey have a free law library. If you live near a law school, perhaps you can pay a nominal fee to use their law library. Some law schools have a family law clinic.  Many courthouses have a law library for public use for a nominal fee or free. Sometimes being well-informed relieves stress, allows for clearer thinking, and helps move your legal matter to a successful conclusion.