• Do I qualify for support?
• I have a judgement but the debtor still won't pay? Now what?
• DUI: What are my rights?
• Common Estate planning questions. If I die without a will?
• Understanding your PA Automobile Insurance

How long may I receive the support monies?

Spousal support or alimony pendent lite, if granted, would continue throughout the divorce case and will terminate upon the entrance of a divorce decree, or the resolution of all divorce claims such as equitable distribution, whichever shall occur later or may be terminated by Court Order at an earlier time upon good cause shown. However, an award of child support would continue until either the parties agree to terminate/withdraw the support case, a Court Order terminates the child support or the minor child turns 18 or graduates from high school (whichever occurs later).

How will the Domestic Relations Office determine the amount of support?

A Domestic Relations Conference Officer will apply the Pennsylvania Support
Guidelines to the parties' net incomes to determine the appropriate child support and/or spousal support/alimony pendente lite Order. The support guidelines will calculate and compare the net incomes of Husband/Father and Wife/Mother in determining the level of financial support. Deductions for Federal, State, and local taxes, as well as mandatory retirement funding, union dues, uniform charges are all permitted deductions in determining the net income of a party. However, voluntary payment deferral such as 401(k) contributions, and/or associated retirement funding, charitable donations, and automatic payments to a separate banking account and/or loan repayments are all examples of "income" that will be added back in to a party's income for purposes of calculating their net income. The Support Guidelines require that all sources of income be considered when calculating a party's net income. This includes any and all forms of employment, rental income, significant investment income and even a party's tax refund may be annualized in determining a party's true net monthly income.

Do the Support Guidelines provide for other routine expenses?

The Support Guidelines also consider the parties' respective abilities to contribute towards daycare expenses and/or health insurance premiums based on their comparative incomes. In some cases a Support Order can specifically direct that the parties share expenses for orthodontia, psychological counseling and possibly even award an additional amount toward helping the dependent spouse with a significant marital home mortgage expense.

When should I talk to a lawyer about my support case?

The right to collect support, either child support or spousal support, is to enable a party to adequately and appropriately provide for themselves and their children when the family unit has dissolved. If you have not yet filed for support you should contact an attorney to review the facts of your case to insure that the initial order in your case provides you with the greatest financial assistance possible under the Pennsylvania Support Guidelines. Once an initial order is entered the Court still retains the right to modify that Order upon the petition of either party showing a significant change in circumstances, such as changes in employment, or changes in a custody schedule.

Today it is not uncommon for a parent to have children from several different
marriages/relationships. The Support Guidelines provide for multiple family situations as well, to insure that all children are treated fairly. The Domestic Relations Office is
able to wage attach up to 50% of your net monthly income for your support obligations. If the various support obligations owed by a party to several households exceeds the 50% net income threshold amount, the Domestic Relations Office proportionately reduce each support order until the wage attachment does not exceed the permitted level for attachment.

Regardless of whether you are the party seeking support or the party who has been requested to pay support, it is important to understand your legal rights. Please contact Worth, Magee & Fisher, P.C. so we may advise you on your support case and the related Domestic law matters.

I HAVE A JUDGMENT, BUT THE DEBTOR STILL WON'T PAY, NOW WHAT?

If the debtor refuses to pay the amount of the judgment, you may execute on the judgment through the issuance of a Writ of Execution. You should consider various factors when determining whether to proceed with execution, including the amount of the judgment, any attorney's fees and costs you may incur, if the debtor has any assets, if you know what the assets are, how the assets are held, and if there are other liens on the debtor's assets.

You may not go after those assets of the debtor that are jointly owned with a non-party. For example, if the judgment is against only a wife, but all of her assets are jointly held with her husband, you may not go after those particular assets to satisfy the judgment.

If you do not know what the debtor's assets are, additional time and expense will be required to make this determination (see below). If there are existing liens on the debtor's assets that have priority to yours, the value of the asset may not be enough to satisfy your judgment after the other liens are satisfied. Finally, if your judgment is a relatively small amount, your attorney's fees and costs may exceed the amount of your judgment, making executing financially impractical

HOW DO WE DISCOVER WHAT ASSETS THE DEFENDANT HAS?

If you don't know what assets the debtor has, it may be necessary to serve post-judgment Interrogatories and Request for Production of Documents on the debtor, or take the debtor's deposition. Interrogatories are written questions regarding the debtor's assets, including bank accounts, stocks and bonds, real estate, vehicles, furniture, collections, jewelry, etc. The debtor is legally obligated to answer the Interrogatories, however, getting their immediate cooperation may be difficult and it may be necessary to seek court intervention. A Request for Production of Documents is just that, a written request for various documents that reflect the debtor's assets. Taking the debtor's deposition requires scheduling a time for the debtor and attorney to meet face-to-face where the attorney directly asks the debtor questions regarding his or her assets.

WHAT IS A "WRIT OF EXECUTION"

A writ of execution is a written court order directing a Sheriff to enforce a judgment. The writ may direct the Sheriff to levy and attach the personal and real property of the defendant or garnish certain non-tangible property of the debtor, such as accounts receivable, the debtor's interest in a partnership, rents, or other sums due and owing to the debtor.

HOW IS A "WRIT OF EXECUTION" ISSUED?

The process begins by filing a Praecipe for a Writ of Execution with the
Prothonotary in any county where the judgment was entered. The Prothonotary will issue a Writ of Execution and index your Writ in the judgment index, thereby giving your judgment priority over other judgments and liens filed after yours. The Writ is then forwarded to the Sheriff's department for execution.

HOW DOES THE SHERIFF EXECUTE ON PERSONAL AND REAL PROPERTY?

If the debtor has personal or real property sufficient to satisfy the amount of the judgment, interest, and probable costs, the sheriff will hold a sheriff's sale by auction. For personal property, the sheriff is required to give at least 6 days notice of the sale by posting "handbills" in the sheriff's office, the place of the sale, and the place of levy.

For real estate, the Plaintiff must first file an affidavit setting forth the name and
whereabouts of every person who has an interest in the real estate that may be affected by the sale. The Plaintiff also must serve, by the sheriff or other competent adult pursuant to rule 402(a) of the Pennsylvania Rules of Civil Procedure, written notice to all those named in the affidavit. Handbills must also be posted by the sheriff in the sheriff's office and upon the property at least 30 days before the sale.

HOW MUCH WILL EXECUTION COST?

The costs associated with execution varies from county to county. You will be required to pay a filing fee with the Prothonotary when filing the Praecipe for Writ of Execution. Depending on the type of property being executed on, you will also be required to deposit a sum with the Sheriff's Department. This sum generally falls around $200.00 for personal property and approximately $2,000.00 for real property.

Attorney's fees will vary depending on the amount of time it will take to collect your judgment. For example, if you do not know what assets the debtor has, more time will be expended in going through the discovery process, Depending on the amount of your judgment, an attorney may agree to take your case on a contingent basis, that is, he or she will charge a percentage of the judgment amount only if he or she collects on your behalf.

CAN I GET BACK MY COSTS AND ATTORNEY'S FEES FROM THE DEBTOR?

If the debtor has assets subject to execution, your costs generally are recoverable and are added onto the amount collected.

Attorney's fees incurred in connection with discovery may be assessed against the debtor if the discovery disclosed assets subject to the execution and which were previously unknown to the creditor.

WHAT IF THE DEBTOR DOESN'T HAVE ANY ASSETS, OR THE ASSETS THEY HAVE DO NOT COVER THE FULL AMOUNT OF THE JUDGMENT?

You must wait until the debtor acquires assets in the future and attempt to execute again.

HOW LONG DO I HAVE TO EXECUTE ON MY JUDGMENT?

You can execute on a judgment at any time into the indefinite future, so long as you revive the judgment every five years by filing with the Prothonotary a Praecipe for Writ of Revival.

DUI, WHAT ARE MY RIGHTS?

You're probably aware of the dangers of drunk driving by now. Perhaps you, a friend or relative have been victimized by a drunk driver or have been arrested for a drunk driving offense. I represent those who have been charged with drunk driving.

I take my job very seriously because too often people in this situation do not know their rights or liabilities. For example, a first time offender can face a mandatory jail term of 2 days as well as a one year license suspension but may be eligible for a pre-trial diversionary program called "ARD" which allows the accused an opportunity to avoid jail, get a reduced license suspension and have his or her record erased after successfully completing the program. Successful completion of the program will mean that you don't have a conviction on your record although, it will count as a 1st offense if you are arrested and convicted again within 7 years of completing the program.

Because each county is allowed under the law to handle the license suspension in different ways, the amount of time your license can be suspended can vary from county to county. Some counties offer a "Fast Track" program which offers a license suspension from 1 month up to 4 months. Some ARD programs offer a straight 6 month suspension. Still others give the accused the option of having a device attached to their car which requires the driver to blow into a breath testing device to make sure no alcohol has been consumed before the car can be started.

In order to curb the death and injury toll caused by the irresponsible combination of alcohol and the automobile, the government has cracked down on the offense by imposing mandatory jail terms to drunk driving offenders. As discussed above, a first time offense within a period of 7 years carries with it a 2 day jail sentence and a $300.00 fine. A second offense within a 7 year period carries with it a mandatory jail term of 30 days. For a 3rd offense in 7 years, the penalty is 90 days and the 4th time in 7 years carries a mandatory sentence of 1 year. 2nd, 3rd, 4th and subsequent offenders within 7 years are not permitted by law to participate in the ARD program. This program is only available for 1st offenders whose offense did not involve an accident causing bodily injury or death. It is designed to be a once in a lifetime opportunity.

Out of state prior convictions for DUI or a similar offense can count as a prior offense for purposes of determining if one is a repeat offender under Pennsylvania law and thus subject to enhanced penalties. Because the laws of the several states differ and because DUI or DWI laws may be more stringent in other states, our courts have held that unless the government can prove that there was in fact an out of state conviction in the past 7 years and that the conviction was for an offense substantially similar to a Pennsylvania DUI offense, it can not use it as a prior conviction to enhance penalties.

There are other rights in this area that you may not know about. For example, the police may conduct a roadblock to check for people driving under the influence but may only do so after meeting very strict constitutional requirements before, during
and after conducting the roadblock. Another example, use of blood or breath tests to determine the amount of alcohol in the system are permissible but the people and facilities conducting the testing as well as the testing devices themselves must be approved by the state. If not, the test results may be thrown out of court and may not be used against the accused. There also may be issues regarding the stop of the driver or the arrest.

Since there are so many issues related to driving under the influence cases that require the guiding hand of a lawyer well versed in this area of the law, you should consult with an experienced DUI lawyer immediately if you have been arrested and charged with DUI.

The best advice we can offer is to drink responsibly and avoid getting behind the wheel if you've been drinking. Not only will this avoid having to deal with these difficult issues, it can also save a life.

Generally not. Pennsylvania, like most states, has intestacy laws which control distribution of an individual's estate if they die without a will. The only time a person's estate goes to the government is when they die without a will, and no one exists in the "family tree" provided for under the intestacy laws. In that event, a person's estate "escheats" to the government.

Although the law contains a scheme to distribute the estate of a person who dies without a will, most qualified estate planners continue to emphasize the importance of a will. In a will, you will get to choose how your assets will be distributed and you do not need to worry about whether the law will change in the future (as it is known to do). Further, a will gives you the opportunity to name the person who will administer your estate and the opportunity to create a trust to safeguard assets that would pass to your children until they reach an age that you specify, as well as the opportunity to use more specialized trusts that are designed to avoid or reduce death tax.

Can I avoid death tax and the cost of nursing care by selling my house to my children for a dollar?

Any lifetime transfers of property designed to avoid death tax and/or nursing care can be extremely risky, and can have catastrophic and unexpected consequences, both from a tax standpoint and from the standpoint of providing for your long-term care or the care of an elderly parent. From a tax standpoint, any lifetime transfers of property should be reviewed by an experienced professional in order to take advantage of a step up in cost basis that is available for appreciated assets which pass at the time of death. Failure to take this into consideration can leave the transferee with an unnecessary and unexpected capital gains tax problem in the future.

Where the cost of nursing care is a concern, the Pennsylvania Department of Public Welfare strictly enforces medical assistance laws and polices all gifts that are made within three (3), and sometimes within six (6) years of an individual's entry into a nursing care facility. Lump sum transfers such as a sale of a residence to children for a dollar, can result in disqualification from medical assistance, and even criminal penalties. Although there are options that exist for sheltering assets from the cost of nursing care they should always be explored within the context of an overall review of an individual's estate plan with the guidance of a n experienced professional.

If I become disabled, can a trusted family member take over my affairs without a court declaring me incompetent and taking away my rights?

With our aging population, many of us have witnessed the impact of Alzheimer's Dementia or other mentally incapacitating conditions upon a loved one. Confusion, forgetfulness, and lack of orientation to person, place and time can jeopardize a person's well-being and make them vulnerable to the designing influences of people with ill motives. Fortunately, the law allows us to choose the person that we would like to take over our affairs, - literally a person who we trust with all of our assets and personal well-being, through the use of a Power of Attorney. A Power of Attorney is a written document in which an individual designates another individual as their "attorney-in-fact". Despite the use of the word "attorney", the designated individual does not have to be an attorney licensed to practice law in a given jurisdiction.

Generally, the attorney-in-fact is a close family member or, less often, a longtime and deeply trusted friend. The Power of Attorney can delegate very broad powers or very specifically and carefully limited powers. The Power of Attorney can take effect immediately or only upon the occurrence of a future event (i.e. disability) which you designate. A power of attorney can delegate control over financial decisions as well as personal decisions such as medical treatment and admission to a residential nursing facility. A power of attorney is much more efficient and inexpensive than a court proceeding to declare an individual incompetent or incapacitated so that the Court can appoint a Guardian over his or her person and/or estate.