Are personal injury settlements marital property in PA?

Q: Wife was in an accident last March 2017. Vehicle was in my name. The girl responsible for the accident insurance company offered wife a settlement and she declined stating she was getting a personal injury attorney to represent her. (Circa September/October 2017) The personal injury attorney tells us we will get about 20K settlement. Wife and I have a conversation (both in-person and through text) since receiving that information up until April 21, 2018 about how we planned on utilizing the money. (i.e., Investing it, down payment for a new car, etc., etc.) Then April 24, 2018 she leaves me and files for divorce in June 2018. Since then our divorce has been at a standstill because she refuses to give me any of the settlement payout. So, if the divorce gets finalized before she receives the payout, am I still entitled to the settlement? Also, if the settlement gets paid out to her and our divorce isn’t finalized, am I still entitled to the settlement? (Pittsburgh, PA)

A: The only time frame that matters is what was your marital status when the accident occurred. When the proceeds of the settlement are paid does not matter. There is new case law on this, so I advise you to consult with an experienced family law attorney. As the law stands now, if the accident occurred between the date of marriage and the date of separation, the proceeds of the settlement are marital property.

Deposition after the judgement?

Q: Judgement is already made and reported. It is not from the courts to appear at a deposition of execution for a credit card. Do I have to appear? I am disabled and on a fixed income with SSI and Veterans pension only. is there a way to put my information in the courts so I am judgement proof? The lawyers made this look like it came from the courts. I always thought that a deposition had to be before a judgement was made not after. (Pittsburgh, PA) A: After a judgment is taken, there are Civil Procedure rules that allow the Plaintiff to conduct discovery to determine if assets exist and where they are located. This is done, so the assets can be executed on, or seized. A deposition is one form of discovery, as are written interrogatories. A Notice of Deposition can be sent from an attorney’s office and does not need to be court ordered. If you don’t go to the deposition, the Plaintiff can get a court order requiring your attendance and may ask for counsel fees for doing so. Apparently, you did not have a lawyer to fight this judgment or you may not be in this situation. I advise consulting with one to see if you have options.

A: After a judgment is taken, there are Civil Procedure rules that allow the Plaintiff to conduct discovery to determine if assets exist and where they are located. This is done, so the assets can be executed on, or seized. A deposition is one form of discovery, as are written interrogatories. A Notice of Deposition can be sent from an attorney’s office and does not need to be court ordered. If you don’t go to the deposition, the Plaintiff can get a court order requiring your attendance and may ask for counsel fees for doing so. Apparently, you did not have a lawyer to fight this judgment or you may not be in this situation. I advise consulting with one to see if you have options.

How much time can he get?

Q: In Pennsylvania, what is the maximum penalty for an F3 and M1 violation? (Baldwin Borough, PA)

A: A defendant is normally not sentenced to the statutory maximum. A judge follows the PA Sentencing Guidelines when invoking a sentence. The “guidelines” are a complex matrix based on Prior Records Score and Offense Gravity Score. To answer your question however, A F3 is punishable by 7 years in jail and/or $15,000 fine. M1 is punishable by 5 years in jail and/or $10000 fine.

CRIMINAL LAW, SENTENCING, STATUTORY MAXIMUM

Can A POA take hourly pay if not in the original POA contract?

Q: I have an elderly client who just found out her POA been paying themselves for services. She doesn’t remember them even agreeing to pay nor is it in her POA contract. They have paid themselves $20,000 over the last 8 1/2 months and two of the months she was in the nursing home/rehabilitation facility. Some checks say it was a stipend and the others say for a certain month rate of $35.00 an hour. I guess my question is should there have been an agreement on payment for services? Thanks. (Pittsburgh, PA)

A: Agent acting under a POA cannot take a fee for his or her services unless it is authorized in the POA document. Based on what you state, it sounds like this may be a case of elder abuse and the Agent is acting beyond the scope of their authority. Your options would be to question the Agent about these expenditures and demand an answer and if there is no explainable reason, report this to police and make an appointment with an experienced elder law attorney.

ELDER LAW, POWER OF ATTORNEY, AGENT, FEE, REASONABLE

Brother moving out can my mom do anything?

A: I think you are asking can an 18-year old just move out of his or her parent’s home. The answer is yes. At age 18 he is considered an adult under PA law. It is not recommended that he do this unless life at home is abusive. Perhaps some counseling or intervention from a friend can help. It is a tough world out there for an unemployed, uneducated 18-year old.

Q: My parents are divorced, and my brother is 18. He is planning on moving in with my dad. He did tell my mom he would stay until school ended but he then changed his mind and wants to leave now. My question is, can my mom do anything to him or my dad because if he leaves? (McMurray, PA)

Can I get my money back, or is it considered soliciting a prostitute?

Q: So, this “mistress” and I have been talking for a while. And she requested $160 for us to meet up. I sent it, and never heard from her in 2 weeks. Should I try to file a police report? Or will it backfire on me? (Clairton, PA) A: I would let this one go. She is a scam artist, a flim-flam woman, con-woman, grifter, cheater, con-artist. hustler, crook, swindler, bilker, bunco artist, clip artist, wise-girl, fleezer, clipper, fleecer, etc. You get the idea. Even if you find her so the police can arrest her, you run the risk of being charged for solicitation or conspiracy.

A: I would let this one go. She is a scam artist, a flim-flam woman, con-woman, grifter, cheater, con-artist. hustler, crook, swindler, bilker, bunco artist, clip artist, wise-girl, fleezer, clipper, fleecer, etc. You get the idea. Even if you find her so the police can arrest her, you run the risk of being charged for solicitation or conspiracy.

Do we need to open an estate?

Q: Mother’s husband died and no will was found after 2 weeks. How do I assist with no money assets? They have a house with reverse mortgage, title held in his and her name along with car. No other liquid assets. What steps do I take? By state law, they apparently have a small estate, is mom a successor if jointly held asset in both names? (South Park, PA) A: You cannot petition the court for a small estate if there is real estate. Plus, if your mother is on the deed with her husband as husband and wife, the property passes to her by operation of law (entireties) and is not part of his estate. Additionally, my question is whether there is, or will ultimately be, any equity remaining in this house if there is a valid reverse mortgage on the house. I suggest reviewing the estate assets and the reverse mortgage document, with an attorney to determine if there is any reason to open and estate and if there are any inheritance tax issues. More information is needed. Normally, the heirs can change title to a car without opening an estate. In these situations, the heirs take the title, the death certificate, a copy of the will and any other documents necessary, to a motor vehicle transfer agent such as AAA.

Can I get my retainer back from a law firm?

Q: I recently hired a law firm, but the attorney that I spoke to transferred my case to one of his partners without my consent. I paid the firm $3,500 for the retainer. However, since they changed my attorney without my consent or prior knowledge I no longer wish to do business with this firm. (The initial attorney told me that I would be working with him exclusively and then threw in partners and paralegals after payment was made) I did not sign anything (they do have a form). The “contract” is oral. Since firm has done no work for me yet (initial consultation was free), can I ask for my $3,500 back? Since there is no signed contract another attorney who is a friend told me to contact my credit card company to process a charge back if they don’t comply with my request. (Pittsburgh, PA)

A: If you have no signed contract, and work has not begun, you have a good chance in getting your retainer back. You need to act as soon as possible before they can bill for work. I would call first thing in the morning, send an email and hand deliver a letter to the firm, or if not overnight it with some sort of confirmation. You could also call your credit card company and stop payment or file a dispute, but you need to do that asap.

CIVIL LAW, LEGAL RETAINER, CONTRACT, FEES, DISPUTE

How do I turn myself in on a PA warrant?

Q: I want to turn myself on a warrant for failure to appear in to PA for a drug paraphernalia charge from 2015. I’m scared I will go to jail. I also live in Buffalo, NY, and I don’t drive. That is the reason I don’t go back for my court date. Now three years later the warrant is showing up and I just want to take care of it but I’m not sure what to do. (Buffalo, NY)

A: If you have the resources to hire an attorney, an attorney can handle most of it and take you before a criminal motions judge to set your bond. You may want to call the County court administration and see if there is a way to do this without waiting in jail. Allegheny County has a set up where someone in your situation can turn themselves into Pretrial Services, who process them and take them before a judge for a bond to be set without going to jail. You will likely be better off with a lawyer who practices in the county in PA in which the warrant is.

What type of attorney handles fraudulent transfer agreements?

Q: My late father had dementia as all his extensive medical records show. His MD told me on the phone that my father had not been not competent enough to sign any financial documents for the previous 4 years before his death. My father could not write well or speak clearly, and he was mainly in bed. My father’s emails show that an attorney had been contacting him urging him to sign this TOD, yet my father seemed annoyed at these requests. The attorney went to my father’s home and wrote out the entire TOD agreement for my father and had my father scribble ONLY his name to sign the agreement with his financial institution (a stock brokerage/bank) so the agreement was between my father and his brokerage. There was no independent notary observing this interaction as the attorney was also the notary. I am the executor of his estate and his only child/only legal heir and do not believe this is fair treatment of someone who had dementia and should not have been signing financial documents. Is a contract law attorney or “will dispute” attorney most efficient at handling this case which is in the federal court as an interpleader case with the other beneficiaries suing too? (Pittsburgh, PA)

A: The matter sounds complicated. If litigation in Federal Court has begun, you need to have an attorney or may forfeit your interest. If you have a medical opinion that states your father was incompetent when he signed the transfer, you have the beginning of a good case. I think you need an experienced estate attorney who also handles litigation in Federal Court. This is an unusual combination. The other more realistic option is to hire an estate lawyer and let him bring in a Federal Court litigation attorney as co-counsel. Good luck with your claim.

ELDER LAW, COMPETENCY, ELDER ABUSE, TRANSFER, LITIGATION