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Keeping things Separate During Separation

A typical family case between two people often involves more than one issue to be litigated between them.  Most commonly, a divorcing couple will also be pursuing cases involving child custody and child (and/or spousal) support simultaneously.  As these sorts of cases involve the same people and similar issues, people sometimes want to handle them together.  In one way, it makes logical sense to handle them together, but, when considering applicable legal procedures and issues, it is ultimately unwise to do so for most cases.  Please note that this post deals with situations where the parties elect to enter into an agreement on these matters and are seeking the best way forward to facilitate that.  Obviously, if there is an impasse between the parties, then agreements will not be prepared and filed, regardless of whether they follow best practices.

Divorce, custody, and support, though all involve the same set of people and similar facts and issues, are all procedurally litigated independently.  Each gets a unique case number.  In larger jurisdictions (e.g.: Philadelphia) each gets a different judge.  Court orders are entered into each case individually by a judge or court.  Although related, the legal arguments, the applicable laws, and the relevant facts at play in each, are different.  Based on the above, though divorce, custody, and support all have the appearance of being facets of the same case, they are, in actuality, all different cases.  As a result, in most cases, it is unwise to treat them as the same case when bringing them to a resolution in an agreement.

The most common way to bring these sorts of cases to a resolution together is through a global and/or omnibus contract/agreement.  The agreement lays out, in some combination, the details for all the property division to be done, all of the support to be paid, and all of the custody issues to be addressed.  Generally speaking, as the divorce precipitates the custody and support issues, the global agreement is filed with the divorce and a Decree in Divorce is entered with the global agreement.

Although the combined case described above appears to be logical, clean, and neat, there are potentially significant logistical problems in enforcing the custody and support aspects of it.  The main issue is the fact that the Court views divorce, custody, and support as separate legal cases and one cannot seek enforcement of a custody and/or support matter in what is ostensibly a divorce agreement (it is a divorce agreement as it is filed with the Decree in Divorce).

For example, working out one’s custody in a divorce agreement means, under the current procedures, there is no case or agreement in custody.  As a result, when one attempts to enforce the custody arrangements laid out in a divorce agreement, there is no custody case established to provide the context in which to seek enforcement of the divorce agreement.  One cannot file for enforcement in divorce court because custody is not a divorce issue.  Further, if custody is worked out in a divorce agreement, and no custody case is ever opened, there is no custody order to enforce or ask a police officer or other third parties (e.g.: schools or therapists, &c.) to use/have for their purposes.  Ultimately, when one seeks enforcement or use of a custody arrangement in a divorce agreement, a custody case will have to be opened and the divorce agreement entered into the record as an order.  The most expedient way to deal with this is to simply file a custody case at the outset, prepare and file a separate custody agreement (or, if an omnibus agreement is insisted upon, the omnibus agreement itself), and request a custody order in the context of a custody case based on the terms of the agreement.

The issues that arise in the context of co-mingling divorce and child support, and my solution, is the same as when one co-mingles divorce and custody: as they are separate matters they should be filed separately and concluded with separate agreements.  The negative impact of an omnibus divorce agreement may be worse and more complicated for support than custody.  Customarily, child support is entered by an order of court, in the context of a separate support order, and is paid via wage garnishment through an agency of the Commonwealth of Pennsylvania which tracks payments, maintains payment records, and calculates payments, arrearages, and/or credits.  If support is done thought a divorce agreement, and not through support, the payments are made personally by the child support obligor (the person who pays), the Commonwealth does not keep track of payments (or lack there of) and cannot, through the operation of applicable law, apply wage garnishment upon the income of the child support obligor.  As a result, when one attempts to modify and/or enforce a child support arrangement, and possibly establish a wage garnishment, within a divorce agreement, one, much like a custody case described above, has to start an entirely new support case in support court and enter the divorce agreement there.  As above, if this support case could have been established at the outset, this issue could have been avoided.  The extra hurdle in the context of support is calculating the amount of the payments made, determining the dates when those payments were made, and calculating arrearages or credits in support.  If years pass before enforcement and/or modification is requested, finding the records for the payments made and/or missed may be lost or difficult to find or simply non-existent because the payments were made in cash and without receipt instead of through a traceable method through an agency of the Commonwealth of Pennsylvania.  As a result, an accurate rendering of the support paid and/or owed may be impossible; at the very least the effort to come up with the figures is time consuming and a recipe for litigation.

Although “getting a case over with” through a single agreement seems easy and logical, enforcement and/or use and/or modification of that agreement can become very tricky.  The benefit one receives today for the simplicity of a single omnibus agreement is not worth incurring the headaches from that omnibus agreement in the future, especially when the alternative to the omnibus agreement is not that much more time and work.  At the time of agreement, all one must do is establish separate custody and support cases and file an agreement with each.  As the parties are in agreement on the issues, there is virtually no additional litigation and no court appearances necessary.  Although three different agreements seem cumbersome today, one will be happy to have done it that way in the future when it comes time for use, modification, and/or enforcement of those agreements.

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One thought on “Keeping things Separate During Separation

  1. Pingback: A Collection of Family Law Writings by James W. Cushing, Esquire | judicialsupport

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