Termination of Child Support in Pennsylvania

Termination of child support payments and when is a substantial and nuanced question we often receive as family lawyers.

Child support payments contribute to a variety of expenses that fall to the custodial parent. These can include medical fees, children’s school and activity expenses, and food and clothing necessities. These court-ordered payments commonly end when a child reaches the “age of maturity” but do parents know exactly when that age is in PA? And, are they adequately preparing for the termination of the order?

When a family is going through divorce, the court aims to keep the children’s best interests in mind, as do most family law attorneys. There are legal orders in place to protect children— custody orders seek structure for children’s new living arrangements and child support orders ensure the noncustodial parent contributes financially so the children’s lifestyle is sustained as much as possible.

What is the “Age of Maturity” in Pennsylvania?

The end of the child support order often catches parents by surprise, especially considering the order may have been in place for years. State law dictates when support orders should end. Most states, like Pennsylvania, will end the child support order when the child reaches the “age of maturity” which is typically when the child turns 18 or graduates high school – whichever comes later. In some states the “age of maturity” is 21.

Can a Child Support Order be Terminated Early?

The order can be terminated earlier if the child becomes emancipated. Through a court process, a child can be emancipated because they are able to support themselves. This can coincide with the child leaving the home, joining the military, or getting married.

Can a Child Support Order be Extended?

Alternatively, the order can be extended past age 18 or 21 to provide child support while the child is in college or in cases where the child has special needs.

So, the Termination of Child Support Happens Automatically?

Even though the child support order may include a termination date, it does not end automatically. You must take specific steps to terminate the agreement. Until the order is actually terminated, the noncustodial parent is obligated to continue payment.

What Do I Need to Do to Terminate the Child Support Order?

To anticipate the termination, the parent making payments should file a modification petition a few months in advance of the expected end date. In cases with multiple children, this must be done individually for each child.

What if Child Support Money is Still Owed?

When the time comes to terminate a child support order, there may be a past due balance of payments. Money that is still owed is referred to as “arrears.” Arrears are owed even after the support order is legally terminated.

Can I Get Child Support Owed Reduced?

Best practice is to try to get the arrear balance reduced prior to termination. The court will typically provide options such as making lump payments when possible, or reducing the amount of each payment to prevent skipping.

What If They Won’t Pay the Owed Child Support?

That’s where Custodial parents may need the help of a family law attorney. They may land in a situation where they need legal assistance to collect the balance. In these cases, they may have to file a separate civil action to recover the credit.

Congrats, Parents

Try as we might to stop time, children eventually grow up. In the rush that goes along with experiencing a big moment in your child’s life – turning 18, getting married, or graduating and going off to college or the military – pausing to accomplish your associated parental duties is just as important as taking time to enjoy the moment. For divorced parents, determining the future of the child support order is likely one of these duties. As a both a parent and a family law attorney, I hope this article provides guidance to separated parents.

2021 Child Tax Credit: Which Divorced Parent Gets It?

Before 2018, listing a dependent child on the federal tax return meant a per person exemption resulting in paying less federal taxes. From 2018 to 2025 the dependency exemption is suspended. For now, the issue of child dependency is still relevant but more complicated.

Let’s begin with a scenario: a married couple with two minor children separate in April 2020, and are now getting ready to file 2020 income taxes and plan to file separately. They don’t know who gets the child tax credit and other benefits when both of the children are dependents. Is it fair for each to take one dependent child? Does the splitting of dependents save the most in taxes? If one parent has served as the primary custodian since separation, how will this affect the decision?

A child is a dependent under the following criteria:

  1. the child is under the age of 18 at the end of the tax year for which the return is being filed
  2. the child lived with the parent(s) for over half of the given tax filing year

The latter of these criteria is called the residency test. When parents are separated it’s not unusual that one parent will be the primary custodian, in other words that parent maintained physical custody of the child for over 50% of the year. Thus, the primary custodian is entitled to take a dependency exemption for the child.

Exceptions to the Child Residency Test

There are certain exceptions to this residency test which allow for the non-primary physical custodial parent to take a dependency exemption. The non-primary physical custodian, or non-custodial parent for tax purposes, may be able to declare a child as a dependent if they are a member of one of three groups:

  1. already divorced (keep in mind that Pennsylvania does not have a decree of separation which IRS will consider in other states)
  2. the couple has signed a separation agreement
  3. if the couple was never married they have been separated from July to December of the tax year

For the non-custodial parent to list the child as a dependent these rules apply:

  1. the child must have received over 50% of her or his support from the parents
  2. the child must have been in the custody of one or both parents for over 50% of the year
  3. the custodial parent (the one who had custody more than the other parent) must sign a proper release that the custodial parent will not claim the child as a dependent and that release is attached to the non-custodial parent’s tax return.

While the federal tax regulations (Section 152-4) give a variety of examples of the proper form of a release or revocation of a release, the simplest form, that cannot be questioned is Internal Revenue Code Form 8332. It’s important that the parents understand a handshake agreement about this issue won’t survive an IRS audit.

Negotiating for a dependency deduction

When deciding whether to negotiate for a dependency deduction as a non-custodial parent, one should consider the value to them individually and collectively. It makes sense to minimize taxes, thereby maximizing funds available to support the child(ren). When the dependency exemption was suspended for 2018-2025, the IRS provided for a number of tax benefits related to dependents, including the child tax credit. The child tax credit is worth up to $2,000 per dependent child. For a low income parent, if that parent has little or no tax liabilities, up to $1,400 per child is refunded to the parent. Although in the past a couple would split the dependency exemptions, now the parents should more carefully consider the income level of each parent because the higher income parent may earn too much money to get the entire child tax credit. The IRS provides a formula for the decline in the tax credit based on the income of the parent.

Other Child Tax Credits

In addition to the child tax credit, there are other tax credits linked to a dependent child. The CARES Act, initially passed in response to the COVID-19 pandemic and more recently supplemented, resulted in the distribution of stimulus checks in March and December, a portion of which was directly linked to the claim of a dependent child on the 2019 tax return who qualified for the Child Tax Credit. Since the stimulus checks issued in 2020 were based on a lookback to prior tax returns, some parents are now eligible to file separately in 2020 with lower taxable income, and will claim a dependent child for the first time. The parents will be able to apply for the child tax credit on their 2020 return, and if in fact the stimulus check did not issue to that parent they may be eligible to claim the Recovery Rebate Credit.

Putting emotions aside and doing what is right for the children

For many couples the prospect of negotiating or litigating over these matters is overwhelming and often the financial benefit is outweighed by the aggravation and cost of legal and accounting fees to get to the accurate results. Here are suggestions for parents who want to minimize the aggravation and do what is right for their children:

  1. Ask their tax preparer(s) to crunch the numbers splitting or shifting the dependents from one parent to the other and compare the results.
  2. If the loss of a dependent means money out of pocket for the parent who owes taxes, the tax credit enjoyed by the other parent could be shared to soften the blow.
  3. If payments like the stimulus checks of 2020 continue in some form, discuss in advance whether funds will be shared by the parties or how funds will be utilized. The parents are encouraged to primarily view these payments as funds to support the children. If they are already able to support their children, funds could be saved for the future benefit of the children.

It is the responsibility of tax advisors and legal counsel to lay out the options. It is a smart parent who will put emotions aside, take steps to pay only the taxes required, and make sure the financial relief is used for the benefit of their children.

Do Workers’ Comp Benefits Apply When Employees WFH (Work From Home)?

The impacts of COVID are undeniable. Chief among them has been the proliferation of a WFH (Work From Home) workforce. Gallup reported that 43% of employees work from home at least some time. Businesses and employees have had to adapt to that new reality. One of the questions that arises is whether or not workers’ comp benefits apply for WFH.

The short answer is yes. Workers’ compensation benefits may apply for injuries sustained by employees while working from home. Employees are covered for injuries regardless of location, outside or inside the employer’s workplace. The primary consideration is whether the injuries are, in fact, work-related. That said, whether the injury is truly work-related is a more complex question. It comes down to the details.

It’s clear that if an employee slips while moving a box on the employer’s premises while performing work, the corresponding injury is work-related and subject to workers’ compensation benefits. But what if that same action occurs while the employee is working from home? The answer depends on how and why the accident happened.

  • Did the injury occur while the employee was doing something on the employer’s behalf? Compare a fall while walking down the stairs to perform a personal household function, versus a fall while walking down the stairs carrying work files to the employee’s at home desk.
  • Was the employee required to conduct the activity by the employer? I.e., does the activity resulting in the injury further the interests of the employer.
  • Was the action approved by the employer even though it happened off-site? I.e. did the employee take work home on a voluntary basis, or has the employee been authorized or directed to work from home, either part time or full time.

The burden of proof is on the employee. But, if an employee is able to explain how the injury was work-related, they may very well be given the benefit of the doubt. According to courts, it’s irrelevant whether or not the employer has control over the home-based work environment.

Commonwealth of Pennsylvania Rulings

Pennsylvania addressed the issue of workers’ comp for WFH employees during a 2006 case, Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Alston). An employee was working from home and fell down her stairs injuring her neck.

The injury happened when the employee left her basement office to get a drink. When returning to answer the phone, she fell. She filed a claim alleging she was injured furthering her employer’s business interests. The Commonwealth Court ruled in her favor.

The ruling was determined based on two factors:

  1. The home office was approved “secondary work premise.” Essentially, the employee’s home was an extension of the employer’s premises.
  2. The timing of the injury fell under the “personal comfort doctrine”. The employee was authorized to work from home by her employer and was working prior to leaving her office to get the drink. The Court focused on the their determination that the employee sustained an “injury arising in the course of his employment.”

With regard to “off premises” work injuries, the Commonwealth Court has consistently determined that minor deviations from work, like getting a drink, does not remove an employee from the “course and scope of employment” and therefore an employee may still qualify for benefits. This concept has come to be referred to as the “personal comfort doctrine.” Employees are entitled to deviate from work for personal comfort like going to the bathroom or getting lunch to perform work more effectively.

Addressing Workers’ Compensation Risks for WFH Employees

Generally speaking, courts error in favor of employees regarding distribution of workers’ compensation benefits. The premise is that the Courts are to interpret the facts of a given case in the context of the humanitarian nature of the workers’ compensation law.

By law, employers are responsible for providing a safe work environment regardless of whether an employee is on premises or telecommuting.

A business owner, may take steps to reduce liability for a workers’ compensation claim.

  1. Establish policies relating to WFH employees. Create a written policy that governs employees obligations for working from home.
  2. Define work hours. WFH workers may fail to take appropriate breaks leading to fatigue. As a result, injuries may occur, including carpal tunnel, neck pain, back pain, and posture issues. Musculoskeletal disorders annually exceed $50 billion in workers’ comp claims according to OSHA.
  3. Establish home office guidelines. Make sure employees understand and agree to WFH guidelines. They should have an appropriate workstation setup to prevent repetitive stress injuries.
  4. Examine home office setups. By reviewing home office setups, you can eliminate potential work hazards that might lead to an accident.

Filing a Workers’ Comp Claim

Pennsylvania employers are required to carry workers’ compensation insurance. The system of workers’ compensation is considered a no-fault system . If an employee is granted WFH privileges, their home is their workplace and injuries occurring there may result in workers’ comp benefits.

Should an injury occur at home, both the employer and the employee should follow the same protocol as if the injury occurred on the employer’s premises. The first step an employee should take is to report the workers’ compensation claim. Work from home injuries may be viewed with some initial skepticism by the employer and the workers’ compensation carrier, so WFH workers need to pay particular attention to the details surrounding the circumstances that lead to the injury, and making sure they accurately communicate that information to their employer.

The first step for the employer and it’s worker’s compensation carrier is a thorough investigation. Naturally, an immediate on premises investigation may not be possible, but a thorough telephonic fact finding is a necessity. Remember, these claims are highly fact specific.

Talk to a Workers’ Comp Lawyer

If you have any questions or are looking at a workers’ compensation claim, it pays to talk with a lawyer near you. Our local law offices are located in Doylestown and Norristown and now Cherry Hill. We’ve helped countless clients with workers’ compensation claims.

Our law firm offers comprehensive legal services ranging from workers compensation to business law, litigation, and employment law.

Social Media and Divorce – 5 Tips to Follow Right Now

Understand that anything you type, post, or reply can and will be used against you in a court of law.

It seems like we can’t turn on the news today without hearing about yet another social media or texting disaster. We watched the downward spiral of Armie Hammer’s career due to his social media posts shared allegedly with his friends only. Next we watched the GM of the New York Mets face termination for sending below-the-belt photographs via text to a woman who did not invite those images. With instant communication at our fingertips, it is easy to make errors in judgment that you regret moments later.

A cartoon was circulating among attorneys recently, the message of which was “don’t put anything in writing you do not want read aloud at a deposition to a room full of people.” That advice couldn’t be more accurate, but even more so when facing the high-stress, high-conflict world of a divorce or child custody case in Pennsylvania.

Here are 5 tips about social media and divorce cases that may help you avoid disaster:

1. Stop!

Take a break from Instagram, Facebook, Twitter, or anywhere that you post content, as harmless as your posts may be. There is nothing good to come from sharing details of your family’s life on a public platform at this time. Stop sharing and do not let other’s share on your behalf without your permission. Also, it’s time to change your passwords.

2. Erase Your Urge to Erase

Deleting past posts to avoid making yourself look a certain way is a big ethical no-no. What can be found will be found. Control what you can control, which is your digital footprint moving forward.

3. Don’t post anything you wouldn’t want read aloud in court

Your communications to your spouse or others can be admissible in court – this includes texts, emails and other forms of messaging. If you are feeling emotional, put your phone down until you are calm and able to think clearly without emotional influence.

Identify and utilize stress relief outlets to help you resist shooting back quick, but regretful communications. It may be as simple as walking around your house for 5 minutes or popping on a song that calms you. Have quick stress relievers available to you and use them anytime you feel your heart rate rising.

4. Monitor your children’s use

If your children use social media, you may already be keeping an eye out. If not, now is a good time to start. Divorce and custody cases are tough on your kids. Be sure they are not using their online community as a therapist instead of communicating with you or a trusted individual.

5. Compartmentalize

Consider compartmentalizing the time you spend dealing with the stress of your divorce or custody case. I have multiple clients who will check emails on certain days only. I also have clients who ask for a break on weekends. This is particularly important if you have a spouse or partner who engages in excessive communication where there are not issues that require immediate action.

Setting a reasonable amount of time each week during which you will handle and respond to communications and relaying that to your attorneys and the other party can provide you relief from feelings of being overwhelmed. Of course, emergencies can happen which will not fall into those windows, but most of the time, any communication can wait a day or two so long as you disclose your timetable in advance.

Following the above tips could protect you from the unenviable position of having your communications read aloud in court or used against you. In many cases, social media and divorce don’t mix. Be mindful of your online presence and it won’t come back to bite you!

How Might the Pandemic and The CARES Act Impact a Divorcing Couple’s Business?

Beware: the CARES Act may distort business cash flows from 2020.

Almost every business faced an unusual year in 2020. When the pandemic hit, work slowed dramatically then came the whiplash effect. In particular the sweeping Coronavirus Aid, Relief, and Economic Security (CARES) Act provided short term help for many businesses.

While the hospitality and entertainment sectors tanked, some businesses soared. (Did you need cardboard boxes?) As the business books and records are studied during a pending divorce and support litigation, the CARES Act impact on the business will distort the usual balance sheet entries. There will be changes in the treatment of business income expenses and losses.

Those changes may be unfamiliar and in some cases misleading. Why?

  • When Payroll Protection Program (PPP) loans were awarded, business expenses (payroll, taxes, rent, and qualified expense) were paid from these federal funds. Now, many and possibly most PPP loans are being forgiven. The forgiven loans that paid certain expenses will result in deductions for those expenses. Loans over Two Million ($2,000,000) Dollars are routinely being audited by the federal government. Spot audits are possible. Inquiries by divorce courts and the litigants should include a review of all loan applications and loan forgiveness paperwork. In the event a business received COVID-19 related loan money, the 2020 business cash flow may be artificially high.
  • Employers can delay payment of payroll and self-employment taxes for 2020. Fifty percent are due in December, 2021 and fifty percent are due in December, 2022. The delayed payment will be made without interest charges. In the meantime, the liability entry will remain on the books.
  • The 2020 legislation reversed restrictions on loss carrybacks. A business owner can now amend tax returns for 2018 and 2019 to allow five years loss carryback. The losses in 2020 also benefit from the five year carryback.

In cases when a business is owned by someone in the midst of divorce proceedings or litigation for payment of child support or dependent spouse support, the changes in the typical business cash flow may appear unusual. The law may create a change in the way company income (revenue and expenses) is recorded and the loss carryback could cause confusion and possibly suspicion or financial mistrust. While a federal government or bank audit of a PPP loan may find mistreatment, the business owner may decide bending the rules is possible because the chance of audit is remote.

Yet in the context of divorce and support litigation, the forensic accountant and advocate for the non-employed spouse will look closely at the books and records.

Some of the topics based on the three changes in the law follow:

  1. The business owner who received a PPP loan, later forgiven, may argue the 2020 revenue and cash flow cannot be replicated in 2021 or thereafter. 2020 cannot be treated as a typical year for the purposes of income available for support in 2021 or business valuation based on past performance.
  2. The non-owner spouse who is desperate for spousal and child support may ask that the deferred payroll taxes, albeit a liability on the books, allows current cash flow to fund payment of reasonable support.
  3. If 2020 is a post-separation year for a divorcing couple the business owner will need the cooperation of the estranged spouse to file amended tax returns to get tax refunds for the pre-separation years. While the amended returns will trigger tax refunds, if the loss occurred post-separation, in this case during 2020, should the carryback loss during the marital years trigger a refund that belongs to the marital estate? It could be argued that the 2020 loss creates a refund that is post-separation and non-marital. On the other hand, the non-owner spouse will seek to share in the benefit of the refunds which are dependent on that person’s cooperation with filing amended returns.

Experienced family lawyers and forensic accountants (like our friends at Savran Benson of Bala Cynwyd, Pennsylvania) net income available for support (NIAS) calculations will be difficult to project in the future based on 2020 data. Will the NIAS for 2021 mirror 2020? Can 2019 be considered more typical after the upheaval of 2020? Will the business promptly return to 2019 circumstances?

In divorce cases where a business is valued, it is typically based in part on the economic performance for the past three to five years. The business valuation will consider normalized revenue based on typical income and expenses. Arguably very few businesses operated according to past norms in 2020, therefore can the 2020 books be considered typical? What adjustments are warranted?

Some business owners will argue the terrific year, for example manufacturing cardboard, in 2020 will never be repeated. Other business owners that suffered in 2020 will ask that the review to earlier stable years are inappropriate and therefore the business value should be modest for their struggling companies. Will litigation about a cash-strapped business owner be affordable by the divorcing couple considering the in-depth analysis required? Collecting the data from 2020 will be important and the insights of the attorney and forensic advisors will be critical.

Coronavirus Pandemic Legal Services, Information, and Resources

Updated on 1/28/2021

COVID-19 Vaccine Registration Links for Southeastern PA and NJ Residents

We are continuing to follow state guidelines as we navigate the safe opening of our offices to the public.

For those clients who require in person meetings, accommodations will be made.

As we have since early March, our firm will continue to service our clients with our same standard of excellence and we look forward to our full reopening at the earliest possible date.

Wishing you all good health,

High Swartz Attorneys and Staff



Information for Small Businesses and Employers from High Swartz Attorneys

Business Owners in PA – Your Reopening Questions Answered by James B. Shrimp and Thomas D. Rees

Business Interruption Insurance in PA – Are You Really Covered During the Pandemic? by Joel D. Rosen

A Small Business Game Plan to Follow During the Coronavirus Outbreak by Don Petrille

Does Workers’ Comp Cover Coronavirus? by Thomas E. Panzer

How the Families First Coronavirus Response Act Will Affect Local Business by James B. Shrimp

Employers: Does a Force Majeure Clause in Your Contract Cover You During the Coronavirus Pandemic? by Thomas D. Rees

Can I Collect Unemployment Compensation During the Coronavirus Pandemic? by James B. Shrimp


Important Sites for Small Businesses During the Pandemic

Frequently Asked Questions about The Paycheck Protection Program from the Small Business Administration

The mission of The Smalll Business Administration (SBA), while consulting with the Department of the Treasury is to provide up-to-date guidance to address borrower and lender questions involving the implementation of the Paycheck Protection Program (PPP) which was established by section 1102 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

“Borrowers and lenders may rely on the guidance provided in this document as SBA’s interpretation of the CARES Act and of the Paycheck Protection Program Interim Final Rules (“PPP Interim Final Rules”) Currently, the government will not challenge lender PPP actions that conform to this guidance, and the PPP Interim Final Rules and any subsequent rulemaking in effect at the time.”

High Swartz intends to update this information as it becomes available to us.

Coronavirus Tax Relief and Economic Impact Payments: Tax help for taxpayers, businesses, tax-exempt organizations and others – including health plans – affected by coronavirus (COVID-19)

Commonwealth Financing Authority 

Pennsylvania Industrial Development Authority


Family Law Insights

Which Parent Gets the $500 Child Stimulus Payment and How Does It Impact Support? by Elizabeth C. Early

PA Support Modifications in the Time of COVID-19 by Chelsey A. Christiansen


Commercial, industrial, or residential property owners in Pennsylvania

Delco: You Could Save Money by Appealing Your Property Assessment by Stephen M. Zaffuto

PA Commercial Property Owners: Should You Consider Appealing Your Property Tax Assessments During the Coronavirus Pandemic? by William F. Kerr, Jr.


Estate Planning During the Pandemic

College-Bound Kids? Why a Power of Attorney is More Important Than Ever

Is it worth getting Short-Term Limited Duration Health Insurance during the Pandemic? by Mary Cushing Doherty

Do I Need to Pay Philadelphia City Wage Tax During the Pandemic? by Kathleen M. Thomas

Update on 3/20/20 at 3:30pm EST


Dear clients, business partners and friends,

On Thursday, March 19, Governor Wolf ceased operations of all non life-sustaining businesses in the Commonwealth.

Although High Swartz physical offices are temporarily closed, our attorneys and staff are working remotely and available to assist you.

Attorneys are also able to receive any deliveries from you. Because of physical office closures, FedEx and UPS shipments need to be delivered to a temporary address specific to your attorney.

If you have a delivery already in transit, please forward your tracking number to your attorney, and we can then reroute it.

Your delivery is important to us, and we ask that you please contact your attorney directly for their temporary address.
________________

Update on 3/18/20 at 5:00pm EST

High Swartz continues to closely monitor the COVID-19 situation. Below is an update of the firm’s plans and preparedness.

On the advice of Governor Wolf, we have decided to operate both our Norristown and Doylestown offices remotely, effective Wednesday, March 18, 2020.

All attorneys and staff will continue to work and are available to address your legal needs. Our switchboard remains open during normal business hours, 8:30 am to 5:30 pm, to answer your calls and be sure they are routed to the requested party. Email addresses for our attorneys are available here.

Information regarding the re-opening of our physical offices will be relayed as soon as possible.

In the meantime, you may continue to reach your attorney and other employees of High Swartz in the ordinary course.

If you need general assistance, please contact our offices at the phone numbers below or contact info@highswartz.com

The firm wishes you continued good health and safety during these difficult times.

Norristown Office
610.275.0700
40 East Airy Street
Norristown, PA 19401  

Doylestown Office
215.345.8888
116 East Court Street
Doylestown PA, 18901

What Can Landlords Collect During the Eviction Moratorium, and What Can They Obtain After it Expires?

Landlords are eager to collect unpaid rent and repossess their property, but with the CDC’s eviction moratorium in place, what can landlords collect, and when?

In May, Pennsylvania Governor Tom Wolf entered an executive order preventing owners of residential properties from evicting their tenants for the tenants’ failure to timely pay their rent. Though renters were never permitted to permanently withhold rent payments, the executive order also permitted renters to delay making month-to-month payments while they navigated the COVID-19 pandemic. Governor Wolf extended the provisions originally set forth in the executive order through July 10, and again through August 31.

However, landlords in Pennsylvania could not resume eviction efforts even after Governor Wolf’s executive order expired on August 31. On September 4, the Center for Disease Control (CDC) entered its own order under Section 361 of the Public Health Service Act which placed a nationwide eviction moratorium on residential tenants effective when tenants submit to their landlords a document known as a “CDC Declaration.” The CDC’s order, which aims to prevent the further spread of COVID-19, will not expire until December 31, 2020.

With the prohibition on evictions lasting throughout the calendar year, landlords are undoubtedly anxious to reclaim possession of their rental properties. And though previously unable to collect owed money due to the Pennsylvania moratorium eviction, many landlords are eager to reclaim unpaid rent needed to pay the mortgages, taxes, and utilities on those rental properties.

So what is a landlord entitled to recover once the eviction moratorium expires?

Landlords can actually seek out monetary judgments at this time—the CDC’s order prohibits landlords from evicting tenants throughout December 31. Both Governor Wolf’s executive Order and the CDC’s order do not eliminate the tenant’s obligation to pay rent (though the Pennsylvania moratorium eviction permitted tenants to delay payments). That said, landlords can collect any monthly payments the tenant agreed to make in the lease, including all back rents and (if applicable) utilities. The CDC eviction moratorium merely prohibits landlords from repossessing their property.

What happens if the tenant cannot pay rent after the eviction moratorium expires?

If the tenant cannot pay his rent, but is still bound to several months’ of rent payments, a prudent landlord should inquire what payment the tenant can make. Landlords and tenants are always free to renegotiate the terms of the lease. Agreements to stagger payments of outstanding debts, such as a structured payment plan, can be viable alternatives to litigation. If litigation ensues, it’s best to talk with a real estate lawyer for advice. And, in some cases, agreeing to release a tenant from part or all his lease obligations can be mutually beneficial: the tenant avoids increasing debt from unpaid rent, and the landlord can re-let his property to paying tenants.

What happens if a landlord and a tenant cannot agree on renegotiation of payment?

Under these circumstances, landlords should begin eviction proceedings and would be wise to see the assistance of a real estate attorney.

Not all situations, however, can be resolved. Again, many landlords have gone several months without receiving rent income, and may have no choice but to move on from tenants incapable of meeting their lease commitments. Under these circumstances, landlords should begin eviction proceedings and would be wise to see the assistance of a landlord-tenant attorney. Again, landlords should be mindful that they cannot evict tenants throughout December 31 if the tenant has submitted a CDC Declaration.

What is needed to start the process of tenant eviction?

The first step in an eviction proceeding is the issuance of a “Notice to Quit” letter. The Notice to Quit acts as a formal notification from the landlord to the tenant indicating the landlord’s intent to remove the tenant from the property.

How many days in advance must a Notice to Quit letter be given before eviction?

If the eviction is based on the tenant’s non-payment of rent, the Notice to Quit letter must give the tenant 10 days notice of the eviction. However, a tenant can waive his right to be served with a Notice to Quit, and such a waiver is often contained within the lease.

Can a landlord change the locks or otherwise engage in “self-help” on a tenant who hasn’t paid rent?

Landlords should also know that they cannot engage in self-help to carry out an eviction. This has been the law before the COVID-19 pandemic began, and will continue whether or not the eviction moratorium extends throughout 2021. In other words, in the absence of a court order, landlords cannot change the locks on their property to coerce delinquent tenants to leave, nor can they hire a locksmith to do so. Rather, if the tenant remains in possession of the property after the period detailed in the Notice to Quit, a landlord must obtain an eviction judgment from the relevant court.

How does a landlord get an eviction judgement in Pennsylvania?

Typically, to get that eviction judgment in Pennsylvania, the landlord must file a Complaint with the Magisterial District Court that lies in the same jurisdiction where the rental property is located. That Complaint should request that the Magisterial District Court Judge enter an order for possession in the landlord’s favor as well as a monetary judgment against the tenant for all back rent and court costs. In addition to possession and back rent, the landlord can also request judgment for any new rent that will become due at the time of the hearing, and if the lease permits it, unpaid utilities and attorneys’ fees.

The Court will then schedule a hearing at some later date, at which time the landlord (or the landlord’s attorney) will argue before a Magisterial District Court Judge as to why he is entitled to the relief demanded in the Complaint.

However, the Magisterial District Court will only hear a case when a landlord demands less than $12,000.00 in damages. In light of the protracted eviction moratorium—which will have lasted over eight months by the time the CDC’s order expires on December 31—it is not uncommon for a landlord to claim substantially more than $12,000.00 in back rent, attorneys’ fees, outstanding utility payments, and other potential damages. In this case, the landlord cannot file a Complaint with the Magisterial District Court and instead must look to the local Court of Common Pleas for relief. Cases heard before the Court of Common Pleas can take several months to litigate—much longer than those matters heard in the Magisterial District Court level. That said, a landlord owed a significant balance but more interested in obtaining possession may take advantage of the expedited litigation provided by the Magisterial District Court and agree to cap monetary damages at $12,000.00.

Can a tenant appeal an eviction?

Even if a judge grants an order for possession and other relief in the landlord’s favor, the landlord must wait 10 days before he can file the order for possession. During this 10 day period, the tenant can appeal the judge’s decision. If 10 days pass with no appeal, the landlord can then file and serve the order for possession, but a sheriff or constable will not initiate the eviction until another 10 days after service of the order for possession has passed. During this period, which can last several weeks, if the tenant can come up with enough money to satisfy the monetary judgment and the landlord’s costs in obtaining the order for possession before the constable or sheriff can initiate the eviction, then the tenant may continue to posses the property. (This benefit to the tenant, known as the right to “pay and stay,” is available only when the tenant faces eviction for non-payment of rent.)

Can a landlord evict a tenant for other reasons during the pandemic?

The above information outlines the landlord’s options due to a tenant’s non-payment of rent. The CDC’s order does not prevent landlords from commencing eviction proceedings for other reasons, such as when a tenant engages in criminal activity, destroys property, or otherwise violates provisions in the lease or building code. Under these circumstances, there may be different notice requirements that the landlord must adhere to prior to evicting, and the timeframes set forth in a Notice to Quit are different than in a non-payment of rent matter.

What, exactly, a landlord may recover depends on what he and the tenant agreed to in the lease. An aggrieved landlord should contact a landlord-tenant attorney to review the lease and get a better understanding of what he is entitled to after the eviction moratorium ends.

COVID-19 Vaccine Registration Links for Southeastern PA and NJ Residents

Listed are web links to Southeastern PA and New Jersey Covid-19 vaccine pre-registration and registration for local residents.

Please note we are not affiliated with Vaccine Distribution. We have only provided web links to take you to the Covid-19 Vaccine pre-registration or registration forms for Southeastern PA and New Jersey.

Currently, we are in Phase 1A Distribution which includes:

Residents that are 65 or older, or meet one of the following conditions:

  • Cancer
  • Chronic kidney disease
  • COPD (chronic obstructive pulmonary disease)
  • Down Syndrome
  • Heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies
  • Immunocompromised state (weakened immune system) from solid organ transplant, blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines.
  • Obesity (body mass index [BMI] of 30 kg/m2 or higher but < 40 kg/m2)
  • Severe Obesity (BMI ≥ 40 kg/m2)
  • Pregnancy
  • Sickle cell disease
  • Smoking
  • Type 2 diabetes mellitus 

Montgomery County Residents

For Montgomery County residents, sign ups are available for Phase 1A – anyone 65 years or older or meeting a qualifying condition.  https://veoci.com/veoci/p/form/n8e5ry45jw8y#tab=entryForm

Bucks County Residents

For Bucks County residents, sign ups are available for Phase 1A – anyone 65 years or older or meeting a qualifying condition. Phase 1B and 1C pre-registration is also available but for essential workers only. 

https://buckscovid.powerappsportals.us/Vaccine-Registration/Phase-1A-medical/

Delaware County Residents

The link below is Delco’s pre-registration. If you live (or work) in Delco and want to get the vaccine, fill out this form and you will receive regular updates on distribution timing. https://chesco.seamlessdocs.com/f/delcovac

Chester County Residents

The link below is Chester’s pre-registration. If you live (or work) in Chester County and want to get the vaccine, fill out this form and you will receive regular updates on distribution timing. https://chesco.seamlessdocs.com/f/chescovac

Philadelphia Residents

The link below is Philly’s official Covid-19 Vaccine website. If you live in Philadelphia and want to get the vaccine, fill out this form and you will be contacted later by the Philadelphia Department of Public Health or one of the city’s vaccine partners when it is your turn to receive it. https://covid-vaccine-interest.phila.gov/

New Jersey Residents

Registration is now open. https://covidvaccine.nj.gov/

Thank you and please stay safe.

How to Access the Digital Assets, logins, and passwords of Someone who Has Died

Accessing the digital assets of a loved one after they have passed can be difficult. Below are some tips to make it easier for everyone.

In the age of Covid-19, most of us do everything electronically. Banking, communicating, paying bills, shopping, storing important papers, photos and contacts, filing taxes, keeping a calendar and reminders, sports betting, dating….the list goes on. But where does all of that electronic content go and who can access it for me? What happens if I go on an “extended vacation” – physically, mentally or permanently? Well, things can get messy if you’re not prepared.

I used to tell my partner (half-jokingly) if anything happened to me, to keep my thumb so he could open my phone and computer, to gain access to my accounts/passwords (digital assets) with my fingerprint. Unfortunately, that plan won’t work with the upgrade to facial recognition security, unless he wants to face some tough questioning by the police. And not to mention, the Criminal Fraudulent Access Act prohibits the impersonation of a decedent. So what is he supposed to do when clues of assets and liabilities no longer come through the mail and there is no way to do a global search of assets?

In comes the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), effective January 19, 2021, with a default rule, to help address the frequent challenges fiduciaries (trustees) encounter in accessing the digital assets of a Ward or Decedent.

What is a digital asset?

A digital asset is defined as an electronic record which an individual has a right to or interest in, but not the underlying asset itself (unless we are talking about Bitcoin and the like). For instance, my online bank statement is a digital asset, but the money in the account is not.

The default rule under RUFUDAA, provides methods for a fiduciary to access a catalogue of electronic communications and other types of digital assets, but not the content.

What is a catalogue of electronic communication?

A catalogue of electronic communication “identifies” the person communicating and the electronic address, along with the date and time of the communication. The substance of the communication is not accessible under RUFUDAA.

How can you access a catalogue of electronic communication of a decedent?

In order for a fiduciary to access to the content of electronic communications (documents, photos, emails, basically any information concerning the meaning of the communication stored electronically), the user must specifically do so by an online tool (facebook and Google have these tools) or in an estate planning document.

What if the online tool and estate documents don’t match?

If the online designations conflict with the estate planning documents, the online designation controls. More importantly, the Custodian’s Terms of Service will control what the fiduciary may or may not do with your digital assets.

Tips for legacy planning of your online accounts

Google.

For accounts that have legacy planning, like Google and Facebook, designate a person who can access your data. You can customize the information you want to share, with up to 10 people, if your account is inactive for a designated period of time (3-18 months).

Facebook.

Under memorialization settlings, you can designate a legacy contact who can manage your account after you pass away.

Financial Powers of Attorney.

Have your Financial Powers of Attorney updated to provide your Agent with authority to specifically access digital asset content.

Wills and/or Trusts.

Update these documents to provide your fiduciary with authority to specifically access digital asset content.

  • If you find yourself in Orphans’ Court on a guardianship matter, make sure to include language requesting Custodians of digital assets to disclose a catalogue of electronic communications and digital content to the Guardian of the Estate of the Incapacitated Person, in the proposed Order.

Write it down.

I give all of my estate planning clients the same homework assignment- which always starts off with “Make a binder with the below outline in mind. Identify automatic debits and payments and keep an inventory of digital and cybersecurity assets. Keep a hard copy and a digital copy, and give your estate planning attorney a copy to secure in the law firm’s vault.

The binder should include:

  • A list of logins and passwords for each of your devices (phone, tablet, watch etc.)
  • A list of all online accounts with user names and passwords
    Banks (brick & mortar and online banks)
  • Social media
    • Facebook
    • Pinterest
    • LinkedIn
    • Twitter
    • Snapchat
    • TikTok
  • Email addresses
  • Online shopping sites
  • Online Bill Pay
    • Utilities
    • Phone
    • Internet
  • Payment Services
    • Paypal
    • Venmo
    • Google Pay
    • Stripe
    • Square

Traveling Abroad with Children When You Share Custody

Traveling abroad with children for parents who are separated can present several unique challenges.

Air travel with your children is a special event for a family. But it can be difficult to get on the same with parents of shared custody. Reviewing your options with a child custody lawyer may be your best bet before making any big decision.

Review your current custody order

Often the custody order will spell out what steps need to be taken to gain consent from the other parent, e.g. providing thirty days written notice, a complete itinerary, etc. It is critical that you adhere to your custody order. Failing to do so can result in the other parent asking a court to find you in contempt.

Without a custody order, or if your order is silent on the question of travel, you should get consent from the other party and/or court approval. It’s highly recommended that you speak to an experienced family law attorney about this.

What written documents are required?

Assuming that the other parent approves with your traveling with the children, the next question is what written documentation is required? While there is currently no legal authority in the United States requiring a parent to get a signed consent form from the other parent in order to travel outside of the United States with the children, a parent can still be stopped either by Customs and Border Patrol in the United States or by Customs in the visiting county.

Best practices dictate that you get the other parent to sign and notarize a consent form to take to the airport with you. The Information Center page for the United States Customs and Border Protection provides helpful guidance on this question, specifically, what types of information should be included in the letter, for instance:

  1. The names of the (child) or children on the trip and their primary address, phone number, date and place of birth, and name of at least one parent or legal guardian for each child.
  2. The name of the group and supervising adult(s) such as: School groups, teen tours, vacation groups.
  3. A written and signed statement of the supervising adult certifying that he or she has parental or legal guardian consent for each child. CBP also suggest that this note be notarized, to easily verify the validity of the parental authorization.
  4. For frequent border crossers, the letter should not exceed one year. It is recommended to have the letter in English.

Be Prepared

Once you go through the process of preparing a letter and having the other parent sign and notarize it, Customs and Border Protection may not ask for it when you travel. Remember, if you do not have clear authorization from the other parent and Customs and Border Protection does ask for it, you and your child[ren) could be detained while Customs and Border Protection sorts out whether consent to travel was given by the other parent.

While the United States Customs and Border Protection doesn’t require this authorization the Customs equivalent for the nation you are visiting may. Our strong recommendation as family law attorneys is to prepare a letter. A sample can be found here. Again, the letter should be notarized so the Customs Officer can quickly ascertain that the other parent has given his or her consent.

Why would Customs and/or Border Protection want to see travel authorization from the other parent?

The rationale for requesting confirmation that the other parent has consented to the travel is to reduce the potential for abduction claims. Taking the steps to ensure that you have written consent from the other parent will allow you the peace of mind so you face no potential issues with Customs either in this country, or in the county you are visiting.

Having a notarized letter from the other parent and being prepared for anything when traveling abroad, especially is smart. Stay up to date by visiting the websites we’ve included above, and make sure to keep your child’s parent informed any travel outside of Pennsylvania, especially abroad. Consult with a child custody lawyer if you have any more questions. It’s more important to make sure you are informed than to assume.