PRACTICE AREAS
Family Law
Goldberg, Gruener, Gentile, Horoho & Avalli, P.C., is the region's premier family law firm. Our firm handles a full range of family law matters including divorce, separation, prenuptial (premarital), postnuptial (postmarital), cohabitation and property settlement agreements, as well as alimony, spousal support, custody disputes and child support. Our attorneys bring more than 250 years of combined experience in the legal and financial aspects of divorce; premarital, postmarital and separation agreements and child custody and support issues.
Our firm's mission is to guide our clients through the difficult divorce process as painlessly as possible in pursuit of beneficial results.
Family law is a technical area that requires special training and expertise in understanding Pennsylvania divorce law. A number of our firm's attorneys participated in drafting the Pennsylvania Divorce Code and support guidelines, giving us in-depth familiarity with all aspects of the law in this area.
Our family law practice specializes in the following areas.
• Prenuptial (premarital), postnuptial (postmarital), cohabitation and property settlement agreements
Prenuptial agreements typically outline the division of assets and debts and indicate the amount of support, if any, to which each party will be entitled in the event of divorce or death. Although prenuptial agreements can be binding on issues of division of property, spousal support and alimony, they are not binding on issues of child custody or child support.
A request for a premarital agreement does not necessarily indicate a pessimistic view on the outlook of the impending marriage. A man or woman who wants a future spouse to sign a prenuptial agreement often wants to protect some specific asset from the equitable distribution process should the marriage dissolve. A premarital agreement is especially important for individuals who have been married previously and want to ensure that their children or grandchildren receive certain assets from prior marriages.
Postnuptial agreements are entered after a marriage has taken place, but before the parties seek to end their marriage. As with premarital agreements, one or both of the parties usually are seeking to protect assets or income in the event of divorce or death.
Cohabitation agreements define and protect the assets and legal rights of unmarried partners in the event of a break-up or a death. Couples who choose to cohabitate do not have the same legal status as married couples, foregoing certain legal rights including joint property ownership, survivor benefits and family health care benefits.
Property settlement agreements are contracts that assign and divide property and other assets pursuant to the settlement of divorce.
• Spousal support, alimony pendente lite and child support
If parties are separated and a divorce action has not been filed, the “dependent spouse,” or the spouse with the lesser income or no income, may file a Complaint for Support. If there are minor children, the complaint should include a count for child support. After a Complaint in Divorce has been filed, the dependent spouse may be awarded support in the form of alimony pendente lite.
Guidelines in the Pennsylvania Rules of Court determine the amount of child support, spousal support and alimony pendente lite. In high-income cases, support would be determined by the court based on “reasonable needs” determined by budgets for the party and/or children. Alimony pendente lite is paid until all of the parties’ economic claims have been resolved or when there is equitable distribution.
• Alimony
Alimony may be awarded after a divorce decree is entered and the parties’ economic claims are settled. Awards of alimony are used to achieve economic justice at the time of divorce. Alimony could be awarded to either spouse for support and maintenance after the divorce. Since many spouses work, alimony (if awarded at all) is usually paid for a shorter period of time and in smaller amounts than in the past. Alimony may be distributed in a lump sum payment of money or an award of property.
An alimony award can be modified upon changed circumstances and terminates upon remarriage or cohabitation, unless otherwise specified in an agreement. Nonpayment of support or alimony orders may result in contempt proceedings, imprisonment, withholding of tax return refunds and passports, the suspension of driver's licenses and other sanctions.
If alimony is determined to be appropriate, it can be awarded by either:
1. An agreement between the parties or
2. A court order after a hearing for the settlement of economic claims made during the course of the divorce litigation.
If a party has committed adultery and that is the cause of the divorce, the party who committed adultery may not be awarded alimony. Other mitigating factors for alimony include each party’s income, assets and debts and physical condition. The court also considers length of marriage, standard of living during the marriage, the contribution of the homemaker and the raising of minor children.
• Equitable distribution of marital property
In Pennsylvania, the process of dividing the marital assets and marital debts for a divorce is referred to as "equitable distribution." If the spouses cannot reach an agreement regarding the division of their marital assets and marital debts, the court will decide equitable distribution.
Separate or non-marital property such as property a spouse brings into a marriage, inheritances received by one spouse during the marriage or gifts given to a spouse outside of the marriage may escape the equitable distribution process in Pennsylvania under certain circumstances. Marital assets include tangible and intangible property. Examples of tangible marital assets include houses, furniture and cars purchased during the marriage. Money held in bank, retirement or investment accounts acquired during the marriage are examples of intangible marital assets. Such assets are subject to the equitable distribution process. Also, an increase in value during the marriage of a party’s non-marital property is subject to equitable distribution. Some assets may have both a marital and non-marital component. In that case, the non-marital value of the asset is excluded from the equitable distribution process. In addition to dividing property, most couples also have debts when they separate that are subject to equitable distribution.
Because Pennsylvania is an equitable distribution state, its courts divide marital assets and debts based upon principles of equity, or as they think is fair.
Factors the court may consider in determining equitable distribution include the duration of the marriage; previous marriages; significant non-marital assets including assets excluded by a prenuptial agreement; age, health and income of the parties; and the role of the parties as custodian of any minor children. Fault for causing the end of the marriage is not a consideration in the equitable distribution process.
• Custody disputes
Physical custody is the actual physical possession and control of a minor child or other dependent. Legal custody comprises the right to make decisions, such as what school the child will attend. Any number of custody arrangements may be made including primary, partial and shared (or joint) custody and/or visitation rights.
If the parents are not able to agree on a custodial arrangement, court action may be necessary. The formal legal process begins when a custody complaint is filed, typically in the county of the child's residence for the past six months. In Allegheny County, the parties in a custody action must attend a mediation session with a court-appointed mediator. If the custody problems are not resolved by mediation, the next step is a conciliation (or meeting) with a custody conciliator. If an acceptable agreement still cannot be reached in the conference, the matter is transferred to a judge. If one of the parties wants full custody, both parents and the minor children will likely be subject to psychological evaluations. After the psychological evaluations are completed and a report is issued, a hearing is conducted if the parties still cannot agree to a custody resolution. Then the court will determine the custodial arrangement that is in the best interest of the children.
Estates and Trusts
The Estates and Trusts Practice Group furnishes a full range of services to provide for one's heirs and the proper distribution of an estate. This practice group concentrates on the probate of estates, trusts and the creation of estate plans. Many of our clients have significant assets including real estate and interests in closely-held corporations. Carefully drafted wills and trusts can minimize any ambiguity that could result in contested wills and/or trusts and minimize taxes that may be due at death.
We provide estate and trust services before and after death and advise family members and fiduciaries about their duties regarding administration, business and tax matters. Additionally, the Estates and Trusts Practice Group offers services to contest a will or trust.
The Estates and Trusts Practice Group offers assistance in the following areas to our clients who are planning for the transfer of their estates:
• Estate planning
A well-drafted estate plan is critical to ensuring that your estate is distributed to whom you want, in accordance with your expressed wishes. Without a comprehensive estate plan in place, your family is subject to the distribution scheme set forth in the Probate Code, which is likely to be substantially different from your wishes. Additionally, the absence of an estate plan could allow the government to take a portion of your estate. Many options exist in estate planning, and our firm will work to ensure that your unique needs are met through your plan.
• Will and trust contests
Under some circumstances, a court proceeding - or contest - may be conducted to determine the validity of a will. A "contestant" - the will's challenger - presents reasons that the validity of a will should be questioned. The "proponent," or person who is defending the will, must respond to such claims.
A will may be contested for any of the following reasons:
- Testator lacked mental capacity: A testator (the person that made the will) with lowered mental capacity due to conditions such as Alzheimer's disease or dementia may not be qualified to execute a will.
- Testator under undue influence: If a testator is coerced or persuaded by a third party in a manner that impacts the execution of the will, the will may be invalid.
- Will did not meet statutory requirements: A number of statutes govern the validity of wills in Pennsylvania. A will that fails to meet all of these requirements is invalid.
- Testator did not sign will: A will that is unsigned or not signed by the testator is invalid, regardless of whether the missing signature is an oversight or was left off purposely.
- Not the testator’s final will: The testator may have made a will subsequent to the making of the will at issue. The most current will that disclaims all prior wills should be the will probated.
In a will contest, the contestant offers proof or evidence that the will is invalid. Such proof is usually intended to demonstrate any one or more of the above criteria.
Trust Matters
The proper management of a trust and its assets is of prime importance to the creator of the trust and its beneficiaries. When a trust is poorly managed, a beneficiary, along with trained legal counsel, may want to examine the trustee’s performance closely. A surcharge action to recoup losses incurred by poor management of the trust or the replacement of the trustee may be in order.
A trustee’s performance is contested for many reasons including:
- Standard of care: A trustee must administer a trust with the same level of care used for the trustee’s own assets. If a trustee’s performance falls below that standard, the trustee might be liable for related losses.
- Undivided loyalty: Trustees have a fiduciary duty to make decisions favoring beneficiaries over the interests of all other parties. But sometimes it is difficult to balance the competing interests of different beneficiaries.
- Excessive fees: The fees charged by the trustee must be reasonable for the service provided as compared to industry standards. The amount of the fees must be disclosed, and the basis for the fees charged must be fully explained.
• Legal guidance relative to family businesses
Going into business with a relative is a challenging endeavor and if not handled properly, the results can be disastrous. Our firm's attorneys have counseled many clients who are considering opening a business with one or more family members. Like any other business entity, family businesses have dangers that potential partners must explore before opening and operating a business together. Our firm can help such businesses navigate many difficult areas, including business structure, profit sharing, human resources issues and numerous others. |