The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

Alimony, Spousal Support and the Entitlement Defense

In divorce proceedings, one spouse often seeks to receive alimony or spousal support from the other.  What is the difference?  Alimony can be provided in a final divorce decree to the spouse with lower income and fewer assets.  In contrast, spousal support can be ordered by the Court after a divorce complaint has been filed and while the divorce is pending.  The most obvious difference is that alimony may be a long-term or permanent, post-divorce payment.  Spousal support is temporary, while a divorce is ongoing.

In more-or-less the same temporary situation as spousal support, after the married couple has separated and divorce proceedings have begun, the spouse can ask the Court to order alimony pendente lite, or “APL.”.  Like spousal support, the individual in a more difficult financial position wants to maintain the same standard of living as the couple achieved during the marriage.  Spousal support and APL may not be received at the same time.

When requesting spousal support, the husband or wife with lower income and earning capacity needs to demonstrate that they deserve spousal support simply based on the financial circumstances. This fact is usually evident from the employment information such pay statements and tax returns.   When contesting the request for support, there is a defense known as “entitlement.”  If it can be shown that the expected recipient has conducted himself or herself in a way that would constitute grounds for a fault-based divorce, they may not be entitled to spousal support.

The majority of divorce decrees are issued on ‘no-fault’ grounds, when the relationship has broken down to the point that the parties should not remain a couple based on their differences.   Divorces can also occur on the fault-based allegation that misconduct by one party caused the marriage to end.  If it is the fault of one party that the divorce is being sought, that party may not be entitled to spousal support.  Fault-based grounds for divorce include adultery, desertion, and cruelty.  For all of the grounds for divorce, see 23 Pa.C.S. 3301    The spouse who is innocent may be able to successfully argue that the individual who caused the marriage to end should not be entitled to spousal support.  The entitlement defense does not apply to child support.

To learn more about alimony and spousal support and related defenses, contact an experienced family law attorney at the Mazza Law Group, P.C.

New Tax Laws Impact Alimony

The new U.S. tax law, known as the Tax Cuts and Jobs Act, was approved by Congress on December 20, 2017 and went into effect in January 2018.   The focus of the media coverage regarding the tax reforms so far has been related to tax brackets, tax rates and the potential effect of the new law on net income.  If you are involved in divorce proceedings or thinking about divorcing your spouse, you also need to know that the new tax laws will significantly change the way alimony is treated on your tax returns.

Under the current laws, the recipient of alimony must report the payments as “income.”  In contrast, those who pay alimony to an ex-spouse receive a tax deduction.   These tax factors have been in place for more than 70 years.  Beginning on January 1, 2019, the tax deductions for payment of alimony and the reportable income related to the receipt of alimony will no longer exist.   Section 11051 of the newly adopted tax code abolishes the provisions that had allowed alimony to be taxable for the recipient or deductible for the payor.

Since these provisions regarding taxes and alimony will be eliminated in 2019, individuals who have been considering divorce with the expectation that alimony payments will be required in the final court order should initiate the divorce process now.  It can be anticipated that the changes will affect divorce negotiations and urgency to finalize court orders this year.  As long as the divorce decree is issued by December 31, 2018, the taxability/deductibility remains the same as it currently exists.  It can be expected that the new tax laws will change the way that divorce agreements are negotiated or ultimately settled this year.

For those who pay alimony, there will be a greater motivation to finish a divorce proceeding by the end of 2018 to take advantage of current tax deductions.  Likewise, the new tax laws will make a dependent spouse inclined to request greater alimony for a longer period of time.  The spouse with higher wages will be encouraged to offer alimony to the spouse who is in need of support. One thing is clear – married couples should consider initiating divorce proceedings soon if it is expected that the process will be completed by the end of the year.  In Pennsylvania, the mandatory 90-day waiting period after the separation of the parties or filing of a divorce complaint should motivate couples worried about the effects of this new tax law to start the process right away.

If you are interested in learning more consider contacting an experienced family law attorney at The Mazza Law Group now for consultation or representation.

IS DRUG USE WHILE PREGNANT CONSIDERED CHILD ABUSE?

The Pennsylvania Superior Court has ruled that illegal drug use by a woman while pregnant could be considered child abuse after the child is born. If a child is born with injuries caused by the mother’s use of drugs, the baby could be defined as an abused child under the Child Protective Services Law (CPSL).

In the case known as In re L.B.,  IN re L.B. decision prenatal drug use.pdf  the Superior Court overturned the ruling of the trial court about a Clinton County woman who tested positive for opiates, benzodiazepines and marijuana after she gave birth in 2017 to a child that suffered symptoms of withdrawal. The office of Children and Youth Services (CYS) appealed the lower court’s finding that actions committed by the mother prior to birth cannot be considered child abuse.  CYS argued on appeal that the mother’s prenatal drug use was a “recent act or failure to act “that then “caused” or “created a reasonable likelihood of bodily injury.” According to the CPSL, bodily injury is the “impairment of physical condition or substantial pain.”

In the decision of a three-judge panel, the Superior Court found that the use of illegal drugs could cause bodily injury, as defined in the CPSL, and they remanded the case to the lower court for a new trial about whether abuse had occurred.  The parties and the Court agreed that a fetus or ‘unborn’ child did not meet the definition of “child” under the CPSL, but the case was not about the definition of life of child.  The Court’s focus was solely on the extent of harm to a child post-birth, if the bodily injury was caused by prenatal acts of the mother. If a child suffers “bodily injury,” then the Courts may find that they have been abused. 49 Pa. Code  §48.51 – definition of child abuse.

The concurring opinion of one of the judges on the panel stated that a full Superior Court panel of more than three judges or the state Supreme Court should review the case.  The judge expressed concern that the decision may ultimately interfere with pre-natal treatment for women addicted to drugs.  The pregnant woman must act “knowingly, intentionally or recklessly” to be considered a perpetrator of child abuse. The judge stated that “we should not delude ourselves into thinking” that the decision could “intrude upon a woman’s private decision-making as what is best for herself and her child.”

Family-Based Immigration- How long does it take?

One way for a foreign national to become a lawful permanent resident, and eventually a citizen, is through family-based immigration. US Citizens and lawful permanent residents may file a petition with USCIS (United States Citizenship and Immigration Services) known as a “Petition for Alien Relative” (I-130) for certain close relatives. Those include spouse, parent, son or daughter, or sibling.

How long does it take to get to the next step of applying for the visa or green card in family-based immigration?

If the I-130 is approved the length of time to apply for a visa depends on the status of the US relative (citizen or permanent resident). It also depends on their relationship to the intending immigrant and the country that they are coming from.  If the petitioner is an adult US citizen, and the intended immigrant is an “immediate relative” (spouse, unmarried child under the age of 21, or parent) they may apply for an immigrant visa as soon as the I-130 is approved.

But, if the intending immigrant is not an “immediate relative” for purposes of immigration, they could have a long wait.  That individual must wait for their “priority date” to become current.  The priority date is the date upon which the I-130 is filed with USCIS.  Each month, the Department of State publishes a Visa Bulletin, indicating the priority dates for applications being accepted that month.  In order to be eligible to apply for the visa based on an approved I-130, the priority date must be on or before the date published in the Visa Bulletin.

As an example, in the February 2018 Visa Bulletin, a citizen of the Philippines who has an approved petition that was filed by his US Citizen brother on or before March 1, 1995 is currently eligible to apply for an immigrant visa. That’s a wait of nearly 23 years.

If you are interested in filing a family-based immigration petition for a relative, or in exploring immigration options for yourself, contact the The Mazza Law Group to schedule a consultation with an Immigration Lawyer to review the options available and the time frames involved.

Firearms Possession: Are you a prohibited person?

Anyone convicted of a felony is prohibited from firearms possession but did you know…

In Pennsylvania, you can be prohibited from firearms possession if you have been convicted of any of the enumerated offenses found under Title 18, section 6105(b). Additionally, section 6105(c) outlines offenses that prohibit an individual from possessing a firearm, including driving under the influence of alcohol on three or more separate occasions within a five-year period.  Federal Law also prohibits individuals from possessing a firearm. Under 18 U.S.C. 922(g), anyone convicted of a crime that has a maximum prison sentence of 2 or more years in state court is prohibited from possessing a firearm, regardless of the actual sentence received.  That means under Federal Law, anyone convicted of a misdemeanor of the first degree or higher in Pennsylvania would not be allowed to possess, manufacture, control, sell or transfer firearms.

We have seen quite a few scenarios in which an individual was not aware their conviction would prohibit them from possessing a firearm until they completed a background check for the purchase of a firearm and were denied.  In these situations it is very important to understand the questions you are answering because Pennsylvania State Police investigate the background checks. If you provide false information you can be charged and prosecuted for a felony offense.  Do not guess on these questions, if you are unsure of how to respond, please consult with an attorney.

IS THERE ANYTHING YOU CAN DO TO RESTORE YOUR FIREARMS POSSESSION RIGHTS?

The short answer is YES but it depends on how long ago the conviction was.  If it has been longer than 10 years you may be eligible to apply for relief. Individuals who qualify may make application to the court of common pleas of the county where they live for relief from the disability upon the possession, transfer or control of a firearm. Please contact our office to discuss the available remedies.  When you call our office, if you mention this blog we will provide a free 30-minute consultation with one of our experienced criminal defense attorneys.

 

PUBLIC ACCESS POLICY – New Restrictions to Protect Privacy

On January 6, 2018, the new Public Access Policy rule will go into effect in Pennsylvania to limit the personal information contained in court files accessible to the public.  It is likely to have significant impact in family law cases like divorce and custody, where attorneys and individuals representing themselves will be required to exclude personal information from pleadings that are open to the public.  It does not matter whether the court records are available to be seen at the courthouse or online.  The public access policy applies to all documents that are filed containing some types of private information.

The Administrative Office of the Pennsylvania Courts (AOPC) has developed the policy to bring uniformity to the way that courts in the Commonwealth protect sensitive information.  Both the lower/trial courts and the appellate courts have been allowing electronic filings and remote access to case records, but the new policy will limit the types of documents and information that can be viewed.  If it is considered to be a public record in the courts, petitioners will be required to omit or redact certain information.  This includes the dates of birth of minors, social security numbers, and financial account numbers among other things.  The entire policy, including a description of all information that will be considered confidential can be read at http://www.pacourts.us/assets/opinions/Supreme/out/477jad-attach1.pdf?cb=1 .

It is a growing concern that privacy is violated with many kinds of online access, in courts and elsewhere.  It is expected that each county court in Pennsylvania will now protect the same private information by excluding it from the public eye, but it will be important to check local court rules for the required method of compliance.  In most cases, the attorney or individual filing a pleading can remove the information that is considered to be confidential, but there are other methods of compliance.  Section 7.0 of the policy includes a list of confidential information to be excluded and allows the court to impose sanctions for noncompliance.

If you have questions about how to comply with the public access policy, consult with an attorney at the Mazza Law Group, P.C. for representation or assistance.

 

International Student: Immigration Consequences of Criminal Charges

Consider the following scenario:  Jacques is a foreign national and is admitted to a university in the United States.  He goes to the US consulate in his home country to apply for the visa.  After all the paperwork is in order and he is deemed to be admissible to the US, he is granted a visa.  With that visa, he can enter the US, attend school as an international student, and travel home to visit over the holidays, re-entering the US for the next semester at school.

However, let’s assume Jacques is arrested for Driving Under the Influence, or Possession of Marijuana and Paraphernalia.  Not to worry, the police officer tells him, and perhaps even his lawyer tells him, because he is eligible for a first-offender program which places him on probation without a conviction on his record.   He is told to just stay out of trouble and pay the fine, and that will be the end of it.

Unfortunately, many international students learn the hard way that they face the prospect of having their student visas revoked and being deemed “inadmissible” to the United States.  Even though their offenses may be misdemeanors and they receive minimal punishment, immigration laws are strict with regards to alcohol and controlled substance offenses. Some students may get notice that the visa has been revoked, while others may not learn until they attempt to return to the US after visiting home.

A foreign national charged with a crime should consult with an experienced criminal defense attorney who is well versed in immigration law, or who will consult with an immigration attorney, as soon as possible- even if charges have not yet been filed, because an attorney may be able to engage in helpful negotiations with law enforcement or prosecutors.  After charges are filed- the “crimmigration” attorney can work to help Jacques resolve the charges in a way that minimizes his immigration consequences as a international student and in the future.

If Jacques does receive notice that his visa has been revoked, he should consult with an immigration attorney before traveling outside the United States.  The attorney can help him decide whether he should return home to apply for a new visa, and if he does, how best to present himself during that process.

If you are an international student at Penn State or Lock Haven University and you have had contact with law enforcement, call to schedule an appointment with the immigration and criminal defense attorneys at The Mazza Law Group, PC.

Immigration Temporary Protected Status Ending for Haitians

On November 20, 2017, Acting Secretary of Homeland Security Elaine Duke announced that Temporary Protected Status (TPS) will be ending for approximately 59,000 nationals of Haiti who entered the US following the devastating effects of the 2010 earthquake on the island nation, and must either gain a different legal immigration status or leave by July 22, 2019. This follows a decision last month ending similar protections for Nicaraguan and nationals, as well as the termination of temporary protected status for citizens of Sudan (announced September 18, 2017).

These terminations raise additional questions for those impacted by immigration law and policy in the US:  Will the administration continue to terminate these programs which allow individuals to flee war, natural disasters or catastrophes?  Is there anything that can be done for individuals learning that their temporary status will be being terminated?

Because these programs are temporary, they periodically come up for renewal, and over the next two years, the Secretary of Homeland Security will be announcing decisions regarding several nations- whether the TPS should continue, or whether the individuals and their respective countries should prepare for return and reintegration.  Only time will tell as to when TPS will end for foreign nationals of Honduras, El Salvador, Nepal, Somalia, South Sudan, Syria and Yemen.

Many of those who have benefitted from temporary protected status have gone to college, been employed, had children (who are American citizens) and have otherwise become part of the communities in which they live in the US.  What should TPS beneficiaries, their employers and families do upon learning that the status will be terminated?  From the recent decisions, it appears that a period of orderly transition is being allowed, during which the foreign national will be able to live and work in the US.  If they wish to remain, there may be forms of relief through family, employment, or student status.  An immigration attorney can review their specific circumstances and provide advice regarding whether they have an option to adjust status and seek a more permanent immigration benefit.

DACA – What to Do While Awaiting Possible Reform?

DACA Recipients and Employers. It has been over a month since the current administration announced that it would be ending President Obama’s executive order known as DACA- or deferred action for childhood arrivals.  President Trump has urged Congress to take action with respect to the “dreamers”- those undocumented immigrants who came to the US as children, who have no criminal record and are generally either students or employed.

Unfortunately, the current state of affairs creates a great deal of uncertainty for DACA recipients, their families, and their employers.  A legislative solution is a possibility, but no one can be sure what that will entail and whether it will get through Congress.

In the meanwhile, what should DACA recipients or their employers do to avoid the potentially harsh consequences of losing this form of relief?

First of all, an immigration attorney should be consulted to discuss all potential avenues for relief.  There may be immigration benefits available which would only be discovered after a thorough discussion with an attorney about the individual’s family, how and when they entered the US, their employment and education, whether they are a victim or witness to criminal activity, or may be a victim of abuse or human trafficking.  For example, some individuals may have a claim to citizenship through a parent that was a citizen.  Some may be eligible for relief based on their level of education or outstanding achievement in their field of study or employment.  Still others may be eligible for relief if they have assisted or cooperated with law enforcement in the prosecution of crime.

There have been reports of the potential effects of DACA on employers around the country, who may lose valuable employees and suffer as a reduced labor force.  An employer may be able to assist a DACA recipient by filing an employment-based petition or by helping the employee in finding and retaining an immigration lawyer to explore the potential forms of relief available.

Finally, DACA recipients and their employers must keep abreast of legislative, administrative, and executive changes that affect their status to be prepared to apply for any new forms of relief that become available as soon as possible, and to avoid violating immigration or labor laws.

Nurse Anesthetist Student terminated for refusing Drug Test in PA

A nurse anesthetist student at Bloomsburg University (Bloomsburg) was terminated from the Nurse Anesthetist Program (NAP) for refusing a drug test.  The NAP was a partnership between Bloomsburg, a public university and member of the Pennsylvania State System of Higher Education, and Geisinger Medical Center (Geisinger), a private hospital.  Bloomsburg provided classroom instruction for the NAP program and Geisinger handled the clinical component.  After dismissal from the NAP program, the nursing student, Angela Borrell, filed a §1983 action in the United States District Court for the Middle District of Pennsylvania against Bloomsburg and Geisinger claiming that she was deprived of her due process rights because she was dismissed from the program without a pre-deprivation hearing.

The District Court granted summary judgment in favor of Borrell and awarded her $250,000.00 in compensatory damages and $750,000.00 in punitive damages.  The case took an 180˚turn when the United States Court of Appeals for the Third Circuit overturned the District Court’s decision and entered judgment for the defendants.  The ruling, found a distinction in whether the director of the NAP program, a Geisinger employee, was wearing his Geisinger hat or his Bloomsburg hat when he terminated Borrell.  This is important distinction because Geisinger is a private hospital and its policies permitted termination for failure to submit to a drug test without offering any right to be heard.  Unlike the District Court, the Third Circuit found that the NAP director was not acting under the color of state law in that he had unilateral authority to terminate Borrell based on Geisinger’s employment policies.  Consequently, the protections afforded by Constitution regarding due process did not apply.

The legal authority created by this case raises a number of questions and scenarios that students working to obtain professional licensure encounter.  The decision to not take a drug test created collateral consequences that Borrell was probably not prepared to face.

If you or someone you know is working to obtain a professional license or certification in Pennsylvania and encounters questions or problems, they should consult a lawyer to find out how their rights may be affected.  A lawyer at The Mazza Law Group can help.