Common Questions

Divorce

"Can one lawyer represent both of us?"

An attorney can only represent one party and cannot give legal advice to the other party.

"Can I make my spouse move out of the house?"

You can file for exclusive possession of the marital residence, but you must have substantial reasons for doing so. The Court will not grant an order of exclusive possession simply because you no longer want your spouse to be present in the home. Filing a Protection from Abuse petition may also result in the removal of a party from the home but is not appropriate unless there has been abuse and may result in criminal prosecution if found to contain fabricated allegations.

Custody

"When can my child decide that he/she wants to live with me?"

Although a child never makes the final decision as to where he/she lives, the Judge will often interview a child to determine his/her feelings but does not base his decision solely on the child’s preference. The Judge may give more credence to an older child who has solid and well thought out reasons for wanting to change his/her custodial parent.

"My child’s parent has alcohol/drug/mental health issues – can I refuse visitation?"

Your attorney can request that the custody order state that neither party may use alcohol or drugs while the child is in their custody. You should discuss any mental health concerns with your attorney as each situation must be handled individually and may require documentation substantiating your allegations.

Protection From Abuse

"When can I file for a Protection From Abuse (PFA) order?"

You may file for yourself and/or on behalf of your children if you have been physically assaulted by a family member or a member of your household. You may also file if you feel you are in immediate danger of physical harm, for example, if your spouse has produced a gun and threatened you. If there has been an altercation and the police are called, they may recommend that you file for a PFA.

"How do I file for a PFA?"

You go to the Prothonotary’s Office at the Mercer County Courthouse and complete a form called “Petition for Protection from Abuse.” You will be interviewed by a judge who will determine if a temporary order is appropriate. If an order is entered by the Court, the accused party will be served by a Sheriff advising him/her that they may not contact you in any way prior to the full hearing. The Sheriff will also advise the opposing party that they must appear at the scheduled date and time for the full hearing. The full hearing will be held within ten (10) days of filing.

Support

"Do I need an attorney to file for support?"

No. You can file for support and attend the support conference without an attorney. However, there are times when it is beneficial for an attorney to be present such as a job layoff, if you currently pay support for children from a previous marriage, if the other party has quit their job in order to avoid paying support or if one or both parties are self-employed.

"Can one party quit his/her job to avoid paying support or to receive more support?"

No. If one party quits their job, they will be held to their former earning capacity and ordered to pay support based upon those figures. You should consider hiring an attorney to represent you at the support conference if this situation exists.

Elder Law & Guardianships

"When is a guardianship necessary?"

A guardianship may be required when an adult cannot manage personal, medical, or financial affairs, and no effective planning documents are in place. This can be due to a number of different reasons, such as illness, aging, injury, or a developmental disability.

"What is the difference between limited and plenary guardianship?"

A limited guardianship is appropriate where an individual can manage some aspects of their life but requires assistance with specific other areas. Examples of the scope of a limited guardianship are healthcare, finances, residential placement, or education. On the other hand, a plenary guardianship grants broad authority to manage all aspects of a person's life. Whenever possible, Pennsylvania courts seek to identify least restrictive assistance needed to remedy the situation and to therefore tailor guardianships to the individual’s needs.

"Are guardianships common for developmentally disabled adults?"

Yes. A common guardianship scenario occurs when a child with disabilities approaches adulthood and requires ongoing decision-making support. In these instances, whether the child was born with the disability or whether it developed during childhood, the parents must seek legal authority in order to continue to make decisions for an adult child. The need for guardianship sometimes comes as a surprise to these families who understandably view it as their natural obligation to continue to care for the disabled child.

"Can guardianship be avoided?"

In many cases, yes. One of the primary objectives of a properly-drafted power of attorney is to eliminate the need for court-appointed guardianship. The cost savings of a simple power of attorney are substantial compared to the time and financial commitment of the guardianship process, which requires a petition, an expert report, and an evidentiary hearing.

"Does the court supervise guardians?"

Yes. Pennsylvania now uses the internet-based Guardianship Tracking System (GTS) in order to monitor the activities and performance of court-appointed guardians. Guardians must file an initial report followed by annual reports. Failure to do so will lead to the scheduling of a hearing to review whether the guardian should be removed.

"When should families consult an elder law attorney?"

First and foremost, proactive estate planning is the best measure to protect against the need for court-appointed guardianship. The financial savings are substantial, and the peace of mind of knowing that one's affairs are in order is immeasurable. Early planning is strongly recommended, which reduces the need for judicial intervention and avoids having to address a legal crisis at a time when the focus should be on underlying health care emergency.

Estate Planning & Administration

Aren't Estate Plans for the wealthy?

Estate planning is not exclusive to high-net-worth individuals. A comprehensive, simple estate plan provides clarity and certainty after death - and minimizes confusion and conflict among your heirs. With a basic estate plan, one identifies personal representatives and decision-makers, and ensures distribution of assets is not left to chance or legal defaults. Similarly, advance planning enables you to provide input and direction for medical care if you become incapacitated.

What is a "a basic estate plan"?

A basic or simple estate plan typically includes a will, a durable power of attorney, and an advance directive/medical power of attorney. Less commonly, there are times where trust planning is appropriate.

What happens if I die without a will in Pennsylvania?

If there is no will, or no will can be located, Pennsylvania has an intestacy statute which dictates who your heirs will be, and in what proportions. This legal default can lead to delays, increased costs, and a distribution scheme which does not meet your wishes.

Does every estate have to go through probate?

No. Some assets pass outside of the probate process, such as jointly-titled property and accounts with established beneficiary designations. While there are times where probate is unavoidable, proper planning can simplify the process and minimize expense and delays.

What is the role of a personal representative?

Executors, administrators and trustees are collectively known as personal representatives who are managing the estate, usually with the advice of an estate administration lawyer. The personal representative is responsible for compiling and managing assets, paying debts and taxes as required by law, and eventually distributing property to the heirs of the decedent. These roles entail legal obligations and potential personal liability, and it is important to seek a qualified estate administration attorney to efficiently and appropriately navigate the process.

How long does estate administration typically take?

The timeline of estate administration varies based on the size and complexity of the estate, including whether there are any disputes between beneficiaries or significant debts to resolve. It is reasonable to expect a timeline of nine to 18 months, but again that varies significantly based on the facts and circumstances of the estate.

Does my Power of Attorney cover me after death?

No. Stated simply, a Power of Attorney designation terminates upon the death of the "principal". The agent under Power of Attorney is typically replaced by the executor/administrator following death, although it is common to name the same individual to perform both roles.

What qualifies someone to serve as my personal representative?

There are many factors that should be considered when choosing a personal representative. But the most essential qualifications are trustworthiness and dependability. It is also helpful if the personal representative has familiarity with the wishes of the person/decedent for whom they serve.

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