Philadelphia Divorce Attorney - An interview with Faye Riva Cohen
Q. Tell us about yourself and your practice.
A. My name is Faye Riva Cohen. I am the President of the Law Office of Faye Riva Cohen, P.C., located at 2047 Locust St., Philadelphia, PA19103. My telephone number is (215) 563-7776. I received my undergraduate degree summa cum laude from the University of Minnesota (I grew up in Minnesota) and I graduated from the University of Denver Law School where I was a member of the Denver Law Journal. I moved to Pennsylvania in 1974 with my family. I am in my 35th year of practicing law, and I have an AV rating (the highest rating) from Martindale Hubbell. I practiced for many years with large and medium sized law firms prior to opening my own law firm. I was named a Super Lawyer in 2008 in Labor and Employment. There are four attorneys associated with our Firm, which is a general practice civil litigation Firm, with emphasis on all aspects of Family Law, as well as Labor, Employment, Civil Rights, Disability Issues, Personal Injury, Pension Issues, Estate Planning and Litigation, Real Estate, Business, and Traffic Court and License Issues. We represent individuals and small businesses, and we practice in state and federal courts and before numerous administrative agencies. Our website, located at www.fayerivacohen.com, provides a more complete description of our areas of practice. The Firm belongs to many referral organizations, and we are referred hundreds of cases a year by them. The referral organizations check our credentials and make certain that we are current in the areas of law within which we practice. Our Firm practices law in Philadelphia, Bucks, Chester, Delaware and Montgomery Counties most frequently, but we have also handled cases in other Pennsylvania Counties. The attorneys in our Firm regular write articles in legal publications and are asked to speak at seminars on different areas of the law, and I have authored over 50 articles. I have served as a government consultant as well as a solicitor of a government agency. Our Firm emphasizes aggressive representation, yet we try to give our clients the support they require when they need to become involved with the legal system.
Q. How long do you take to process a divorce?
A. This response, as well as all of the following responses are subject to current Pennsylvania law. The time to process a divorce depends on how adversarial the parties are and/or on how many aspects of the case they agree on. A divorce complaint can be prepared and filed within a week’s time. Upon filing, it must be served within thirty (30) days or else it must be reinstated. In most cases, service can be perfected within thirty (30) days, but sometimes it can take longer due to not having an accurate address or the opposing party intentionally dodges service. If service cannot be perfected, it will take time to locate the opposing party, and, if all else fails, the serving party can request permission from the court to serve by alternate means (e.g.: a newspaper advertisement). Once service is perfected, the parties can request a divorce decree after ninety (90) days have elapsed. However, if the parties do not both consent to the divorce, they will have to wait until two (2) years have passed after they separated to request a decree in divorce. Meanwhile, the parties can try to resolve any property, support, and other related issues. Again, if the parties are generally cooperative, these issues will be resolved fairly quickly. If they cannot agree or are uncooperative these issues can take some time to resolve, and sometimes take years. Once a divorce decree is requested, which requires that all property issues be resolved in Pennsylvania at least, it usually takes about thirty (30) days for a judge to sign it. To sum up, a divorce, from initial consultation to final decree, can take as short a time as approximately four (4) to five (5) months but can also take many years. It all depends on how easily service is perfected and how adversarial the parties are.
Q. Does your office offer paralegal services to help with simple document filings?
A. We have at times had paralegals assist with these services. At present our attorneys perform these services. The term “simple document filings” is a misnomer, as many courts currently require electronic filing, which requires advance registration, and many errors can be attributed to improper filing. The filing clerks are not lawyers and cannot give legal advice, and if they do give advice, and the advice is often incorrect or misinterpreted, the party accepting the advice bears full responsibility under the law, not the clerk or the court system. There are also stringent legal deadlines related to filing and service of documents and considerable case law on problems arising from errors in both. Normally clerks accept anything they are presented with for filing, and it is not their responsibility to inform the party if a filing is incorrect or missing something. Also, filing documents can be a frustrating experience as the requirements for number of copies, attachments and fees, are not clearly enunciated and often seem to be governed by which filing clerk receives the documents. This is very frustrating for lawyers and their staff. The legal system is very complex and requires the advice and experience of a legal professional even for things which appear simple.
Q. How is child support determined?
A. Child support is primarily determined according to the respective incomes of the parents/guardians of the child(ren) at issue. Usually a party’s income is determined by his/her most recent pay stubs and tax returns. Sometimes, as in the case of a stay-at-home parent, the party’s income is limited or non-existent. In these situations, the court determines the parties’ income “capacity.” That is, a party’s income will be assessed at what the court thinks the person could reasonably make if s/he were presently working given the person’s work experience, education level, availability and age. Sometimes a self-employed parent under reports his/her income. In these cases, the legal burden of proof is placed upon the person receiving the support to prove that the opposing party has a greater income than s/he has reported.
These incomes used to calculate the support amount according to the “guidelines” established by the Pennsylvania state legislature. Although generally uncommon, there are a few occasions when some sort of deviation from the guidelines may be warranted. A deviation is usually warranted when a party has an unusual expense or source of income. For example, if the party required to pay support is caring for a disabled sibling; if the child at issue has received a large sum of money through inheritance or a law suit; and/or the party receiving the support is cohabitating with someone who is gainfully employed, a deviation from the guidelines may be considered.
Q. What is a marital settlement agreement in a divorce?
A. A marital settlement agreement is an agreement between the parties to determine how marital (and sometimes non-marital) property is to be divided upon divorce. A marital settlement agreement is also a way for the parties to agree on how much, if any, support/alimony is to be paid to one of the parties. Essentially, a marital settlement agreement helps the parties come to an agreement on the issues between them without having to go to a hearing to allow the court to make these decisions for them. What is considered to be “martial property” is usually the subject of considerable dispute, and a case by case analysis is required, with many items to be considered. Martial debts are also determined on a case-by-case basis, and should be considered and made a part of any marital settlement agreement. If the parties cannot reach an agreement on the division of marital property and debts, the court will make this determination if requested to do so. I highly recommend settling all matters involving the marriage prior to a divorce, but if there are lingering issues, such as one spouse being able to reside in a house for many years after a divorce, these should be set forth in an agreement which can govern the situation many years later. Many expensive problems, such as division of the proceeds of a home, can occur years after the divorce if these issues are not addressed during the divorce. However, waiting until after the divorce is final to resolve these issues makes them potentially far more complicated, time consuming, and expensive.
Q. What happens if one party refuses to sign the papers?
A. It depends on what you mean by “the papers.” There are at least three (3) sets of “papers” involved in a divorce. The first set is the service papers. If someone refuses to sign to confirm s/he has received service of the divorce complaint, the plaintiff in the matter will have to hire someone to personally serve the complaint (i.e.: personally hand him/her the documents). The second set of papers is the consent forms. If they separated for less than two (2) years, the parties may still be divorced if both execute an Affidavit of Consent. If the Defendant refuses to sign the Affidavit of Consent, the parties will have to wait until they have been separated for two (2) years before a divorce decree is requested. If the Plaintiff refuses to sign the Affidavit of Consent (which is highly unusual) the Defendant can request the case to be dismissed. The third set of papers is the marital settlement agreement. If one party refuses to sign the agreement, then the issues of division of property and support/alimony will have to be decided by the court after one or more hearings.
Q. What should a party do prior to separating from their spouse or parent of their children?
A. The first thing a party should do is to ensure s/he has money in his/her own name in order to pay for his/her living expenses and legal fees. A party should not assume that the opposing party will allow him/her full access to the marital money while separated; obviously if the other party makes the money generally unavailable, it will make one’s life very difficult both in paying for everyday expenses as well as hiring and paying for a lawyer. One may also attempt to remove his/her name (or the opposing party’s name) from credit cards and other sorts of accounts if possible. One may also want to remove certain valuables or other pieces of personal property before the opposing party has a chance to intervene, but this may create an issue later if there is disagreement as to whom this property actually belonged. As a corollary, one ought to try and ensure that s/he has a place to go if life at the marital home becomes unbearable. Obviously, remaining within the marital home is preferred to moving out, but circumstances could certainly become too much to bear in the marital home to stay. A party should also send a letter, preferably by certified mail, to the other party setting forth what s/he believes to be their date of separation. Finally, after the above precautions have been taken, it is beneficial to attempt to have a rational and measured discussion with the opposing party about the separation and whether an agreement can be reached. One may also want to initiate court proceedings regarding custody, visitation and support of the children.
Q. What are the grounds for a divorce?
A. There are four (4) grounds for divorce in Pennsylvania. First is a “fault” ground, which is the traditional/historical ground for divorce. A fault based divorce includes adultery, indignities, abuse, and/or abandonment. A fault based divorce – before 1980 the only ground permitted for divorce – now comprise less than ten divorces per year in Pennsylvania. The second ground is if the opposing party has been institutionalized for a mental disorder for eighteen (18) months prior to the divorce action with no prospect of release in the eighteen (18) months subsequent to the action. Obviously, this ground is just as rare as a fault based divorce. Finally, by far the two most common grounds for divorce are the “no fault” grounds. The first form of a no-fault divorce is available when the parties consent (via affidavit) to the entrance of a divorce decree after ninety (90) days of separation. The second form of a no-fault divorce is available after two (2) years of separation; one party can unilaterally request the entrance of a divorce decree. Since 1980, these two (2) forms of no-fault divorce comprise virtually all divorces in Pennsylvania.
Q. What should one do if served with divorce papers?
A. The first and most important thing one should do is call and hire a lawyer, or, at the very least, consult with a lawyer. The laws concerning divorces, including property issues, support, visitation and custody are quite complex, and are subject to change depending on legislation and case law. Few divorces are simple, and sometimes people miss issues if they think they are simple, and these issues cannot be raised at a later date. It is not a good idea to scrimp on a divorce by trying to handle it on one’s own, or look for the cheapest advertised divorce. There are very limited free legal services available, so one may check those out. Some lawyers may be agreeable to an installment plan after an initial retainer, if one cannot afford a large upfront retainer. Also, one should fully review the documents to know what the allegations are and contact the court regularly as to whether any hearings have been scheduled if one is unclear what the documents require. Finally, one should take defensive action relative to one’s property by ensuring s/he has money in his/her own name in order to pay for his/her living expenses and legal fees. A party should not assume that the opposing party will allow him/her full access to the marital funds while separated; obviously if the other party makes the funds unavailable, it will make one’s life very difficult, both in being able to pay for everyday expenses as well as hiring and paying for a lawyer. One may also attempt to remove his/her name (or the opposing party’s name) from credit cards and other sorts of accounts if possible. One may also want to remove certain valuables or other pieces of personal property before the opposing party has a chance to intervene, but this may be an issue later, if ownership is disputed.
