Category Archives: Blog and FAQ

Can I divorce my husband who is in prison in PA?

Q: I want to divorce my husband, we got married while he has been incarcerated. We have never lived together and have never consummated the marriage. We both agreed to the divorce. He nor I will contest it. Is there an easy way to do this?

A: A no-fault uncontested divorce is usually easy, as long as he can accept service of documents where he is living and can return mail. If you don’t feel confident in doing it yourself, which most people don’t, shop around for a good price from attorneys. If you are indigent, or under a certain income level, you may seek help from Neighborhood Legal Services or from the Allegheny County Bar Association indigent divorce program.

Can my husband take my vehicle if it’s in his name?

Q: My husband and I haven’t been together in a year. We are not legally separated nor has the divorce started. We have 2 vehicles both purchased since we have been married but both unfortunately in his name. We’re living in 2 different states, myself in PA and him in Ohio. There haven’t been any issues as far as the vehicles go unit now. Last week his transmission went out and now he is demanding my car. If this was “my” car bought while together married both of us paying for the vehicle is he able to take it and or report the vehicle stolen? My car is the only belonging I am left with. Thanks in advance! (Pittsburgh, PA)

A: You will have a good argument when the court divides your property in the divorce action, in that regardless of who is on the title, it is marital property. However, as to here and now, he is on the title and if he wants to, he can try to take it. The police may or may not let him do it. They are not going to involve themselves in a driveway divorce settlement. They may be persuaded that he has the title. Or, knowing that you are married, they may tell him to hit the road and talk to his divorce lawyer. You may want to tell your local police what is going on in just in case. What you can do is keep the car in a garage, hidden or blocked in, if that is possible. The police will not take a stolen vehicle report where the alleged perpetrator is the wife. In the meantime, you may be able to have an attorney file an emergency motion to give you exclusive possession of the car, pending the divorce proceedings. You may also tell him that such a foolish act will hasten your filing of a spousal support complaint. If his behavior turns to harassment, you can file for protection under the Protection from Abuse (PFA) statute.

Can a school question a student without a parent present?

Q: My child was questioned last year about an incident for 3 hours by school officials. There was no danger to anyone. They ended up calling state police and criminal charges were filed. I was notified after everything was complete. He has ADHD and ODD and was only 12 at the time. The school was aware but had no 504 or IEP in place because they have been dragging their feet. He is now facing criminal charges for which the school has no proof, no bus camera, no witness and did not do a thorough proper investigation. Now the girl’s story has changed. They coerced him for 3 hours into a confession and made him write a confession letter. Can you please provide me with law specific to this? (Peters Township, PA)

A: I assume he has juvenile delinquency charges and a court date in juvenile court. Your best course of action is to hire a private lawyer. If you cannot do so, sign up for the Public Defender. It sounds like you may have some defenses. As you have noted, you may have an issue that his statement was illegally obtained. I would need to research the latest case law for a definitive answer but how they obtained his statement does raise a red flag. If there are facts to support an illegally obtained statement, the attorney can file a motion to suppress it, and have it excluded from court. It may also help to have your son evaluated by a Psychiatrist to document his Mental health diagnosis. Additionally, if this is your son’s first juvenile case, there may be a diversionary option for him in juvenile court, so he can get out of this with no record. A lawyer can help the situation and answer your questions as they relate to your specific facts.

What are the parent’s responsibilities for an 18-year-old?

Q: Our child will be 18 soon. She is still a senior in high school and wants to move out the day she turns 18. She works and says she can pay for rent, phone, etc. She than told us her guidance counselor said we had to sign for college loans and pay for medical bills until she’s 26. If She moves out isn’t she responsible? We cannot afford to pay for college. Why are we being taunted by school and her. She does not listen to house rules and her friends are not safe near our smaller children, she’s been in trouble with law breaking entry, drinking and her boyfriend is on probation and not allowed near small kids and keeps trying to bring him here for sex. Please help. It’s for the safety of my smaller children. We don’t have the money to pay for college or her medical. (Pittsburgh, PA)

A: Once she turns 18 she is an adult in PA and you have no financial responsibility for her. Under current PA law, you are not obligated to pay for college, or other post-secondary education. If you really want to cut her loose, you can, not that I am recommending it. The current law allows you to keep her on your health insurance until she is age 26 but does not require you to. If you want, once she is 18, you can put her stuff on the porch and change the locks.

How can I be removed as guardian?

Q: I am permanent guardian of the person and estate for a 50-year-old adult son with mental illness. However, he can and has acted independently to get jobs and credit cards. It has become almost impossible to track his spending and I question if he is legally incapacitated. At I minimum I cannot handle the guardianship any more. I also receive no compensation for it. He is no longer under the auspices of the mental health system but is in jail with a potential mental health commitment for competency. (Pittsburgh, PA)

A: If you have been appointed guardian of his person and estate, you can petition the court to appoint a successor guardian. Unfortunately, you will need an attorney to do this. You might be able to find an agency to take over but without knowing more, I am not sure what agency would accept him for services. If an agency would step in, they may be able to handle petitioning the court to have you removed and replaced. The interest of an agency will increase if he is collecting disability or if there is some other source of income for him.

Can a house be taken from you by the executor? if left to you in a will

Q: My husband was left his grandmother house in a will. But his father is the executor or person in charge of everything. One minute he wants to give us the house. Then, the next minute he wants to rent it out. It will be one-year next month. We are paying the bills to keep the lights on, water bill, and just started two months ago paying the taxes and house insurance. We are not sure if we should move in because we are scared he might put us out. (West Mifflin, PA)

A: You are not saying if grandmother died yet. If she did not die, she and only she can draft another will changing the disposition of her property. If your husband’s father does not like the fact that you will inherit the house, he is stuck unless he commits fraud by destroying the will, or has grandmother execute another will which can only be done if she is competent. He could also sell the house through a legal Power of Attorney, assuming she has one naming him as agent in which he is authorized to sell her home. Different story if grandmother has died. If there is an estate opened for grandmother, your father-in-law must follow the directives of the will and the estate attorney should be advising him to do so. Since it sounds like the house was specifically devised (given) to you, the only way that gift could be thwarted is if there are not enough estate assets to pay debt which would require the estate to sell the house. If that is not an issue, you may want to consult with an attorney. If grandmother has not died and her will is in your father-in-law’s custody, you need to be careful. You should get a copy and consult with an attorney. There may be a legal procedure whereby a petition can be filed in court to produce the will and hold it in escrow. You want to make sure the will is preserved.

Can the government take my parent’s home?

Q: If my parents sell their home to their children within the 5 years? How does the 5-year issue work in Pennsylvania? (Munhall, PA)

A: PA manages its Medicaid program through the PA Department of Human Services. Under Medicaid regulations, any transfer of an asset by a Medicaid applicant for no consideration (i.e., gift, $1.00, under market value, etc.) within 5 years preceding a Medicaid application, can cause the applicant to be ineligible for Medicaid benefits to the extent of the fair market value of the asset transferred. You say your parents sold the home. If it was a legitimate sale for fair market value, it would not rule your parent’s ineligible. If the proceeds of the sale went to your parents for their living expenses, which should be easily documented, there should be no problem. I suggest consulting with an attorney to review this sale before you do it.

Can CYF hold a mother responsible for the actions of the father?

Q: My sister in recently had her children taken from her custody and placed with her mother-in-law for a failed drug test and a somewhat recent drug related charge. My sister’s husband is a heavy drug user and hasn’t even contacted the children since they have been placed with his mother. My sister claims that CYF told her that they will be holding her accountable for his actions even though they are separated and not even living together. Is this legal? (West Mifflin, PA)

A: It helps if the heavy drug user father is out of the home. However, if mother has a positive screen and drug related arrest, it can result in children being removed from her home. More facts would need to be known. I suggest the mother speak with a lawyer who handles custody and cases involving CYF. If she cannot afford a lawyer, I suggest she contact the Allegheny County Bar Foundation Juvenile Court Project to see if she qualifies for a free attorney. In situations like this, mother may have a better chance of reunification and getting custody back if she splits from father altogether and enters and completes a serious drug and alcohol program.

Do I have any custody or visitation right as an aunt?

Q: My husband and I have been in his life since birth up to a little over a year ago when his mother took all visitation away. I supported him with diapers and cloths and wipes and we had him all the time. We love him, we taught him to swim gave him lesson we put him in early classes to learn to play with other kids! She got a boyfriend now so there are no visits. (Pittsburgh, PA)

A: Generally, grandparent have not right, or “standing” as they call it, to visitation or custody. However, you may benefit from recent amendments to the custody statute found in 23 PA CS Section 5324 based on your lengthy past relationship with the child. I would consult with a family law attorney to see if it would be worth filing a petition for custody or visitation standing.

What documentation do I need to obtain a Short Certificate?

Q: Both of my parents have recently passed. first my mother, then my father within an eleven-day span. I am the executor of the will and want to proceed in filing out whatever forms need to be filed and to carry out the will. I just need to know exactly what information to take to the courts to obtain the short certificate and be named legal executor. The only assets that my parents have left is a bank account with about $3000 in it as they were both in an assisted living facility before there death. (Pittsburgh, PA)

A: If there is only one asset as you mention, and it is in your parent’s name, you will not have to open an estate. Per statute, the bank can release less than $10,000.00 to certain next of kin if a paid funeral receipt is produced. There will be inheritance tax owed. Also, you need to be aware that if your parents received Medicaid, this money may not be free and clear to disburse. If this matter is a simple as you state, an attorney can assist you in getting the money and prepare an inheritance tax for you at a modest fee.