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Pittsburgh lawyers answering your divorce questions

What should a business owner's first step be after being served with divorce papers?

The first step that a client should take when being served with divorce papers is to consult with an experienced family lawyer. It’s terribly important for the client to understand what the do’s and don’ts are right at the outset to avoid any pitfalls or statements that might prejudice him or her later on in the case. That would be the first suggestion I would have.

The next thing I would suggest is that the client not sign anything that’s proffered to them by the other spouse or by counsel for the other spouse. The only exception to that would be if you get a green card in the mail indicating that you’ve received something from the post office. You can sign that, but other than that, I think it’s not wise for the individual to sign anything that’s being offered to him or her without consulting with counsel.

My third answer would be that it’s probably best not to discuss significant financial matters in detail with the other spouse once you’ve been served with a divorce complaint without getting some advice about that from counsel. I would not want to have anything said that could be used against you later or that might prejudice any arguments we might wish to make, so it would probably be wise to talk to a lawyer first about those issues before trying to have that kind of conversation with your spouse.

What property is “marital property”, and therefore to be divided, for purposes of a divorce?

Property that is “marital property” and would therefore be considered for distribution incident to a divorce would be anything that is acquired, regardless of title, from the date of marriage to the date of your separation, EXCEPT assets that were acquired by one spouse by inheritance or gift from a third party. Premarital, inherited or gifted assets are only treated as “marital property” to the extent that they increased in value between the date of marriage (or the date of inheritance or gift) to the date of separation. The date of your separation is the later of when you start living in separate residences, or one of you files for divorce.

So this includes all types of assets—real estate, bank accounts, investment accounts, retirement assets, life insurance, furnishings, vehicles, jewelry, trust interests, and many other types of assets, as well as all debts (mortgages, loans, credit card balances, etc.).

Does a premarital or prenuptial agreement override normal property division rules?

Yes, the principal reason somebody would enter into a prenuptial agreement would be to set their own rules, so to speak, in terms of how they would divide a marital estate in the event of one spouse’s death, and/or a divorce. Those are valid and binding contracts, and so long as there’s a full and fair disclosure at the time that those agreements are made, and however those agreements are written, those will carry the day at the point in time when somebody looks to get divorced.

For a high-net-worth person who’s coming into a potential marriage, it is often advisable when they have significant assets to enter into a prenuptial agreement.

What happens when the parents cannot agree on where their children will attend school? For example, what if one parent prefers private school over public school?

Choice of school is considered a legal custody issue, so if the parents cannot agree on where their child will attend school, the court will schedule a hearing on this issue. At the hearing, both parents can present evidence on the respective schools and the court will make a determination as to which school the child will ultimately attend.

The court may have to decide between public schools, private or parochial school, and could even be called upon to decide which elementary school a child would go to within the same school district.

Types of evidence that the court would consider in a school choice hearing include information about the respective schools, such as class size, curriculum, location, ranking, etc.

It’s also possible for the court to choose to give one parent the legal authority to decide where the child goes to school. This happens when the court appoints one parent as legal custodian for schooling issues.

What is a custody evaluation – and how is it used by the court?

A custody evaluation is a process where a psychologist will evaluate the parents and children and possibly will make a recommendation to the judge regarding child custody. They are not ordered in every case, but often are ordered in cases where, for example, both parents are seeking primary custody of the children. Sometimes an evaluation can be ordered on a specific issue, such as in regard to allegations of drug abuse or alcohol abuse. In a custody evaluation, the psychologist will generally meet with the parents two to three times and each parent will bring the children to meet with the psychologist one time. The psychologist will obtain background information and family history from the parents. They will also administer certain psychological tests to the parents, will generally observe the parents with the children, may meet with the children individually and often will review information from third parties, such as therapists, guidance counselors, or others who live with the children, such as grandparents, or significant others. All of this information will be assessed by the psychologist and put into a detailed report, which is then given to the judge and the parents. If the case does not settle, then the psychologist is usually called as a witness for one of the parents.

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