Tag Archives: separation

In Pennsylvania, Can I Voluntarily Move Out Without “Abandoning” or “Deserting” My Spouse?

By Matthew T. Hovey, Esquire

Potential clients often call in and want to know: my marriage is over, but we still live together — can I move out or will that be abandonment or desertion?  This is a legitimate concern for many spouses faced with a divorce.  They fear being penalized for acknowledging that the marriage is over and wanting to move out to diffuse a tense situation at home.

The answer is no, it is not desertion or abandonment, as long as you move out in a responsible and respectful manner.  23 Pa.C.S. § 3301(a) enunciates the grounds for a “fault divorce.”  (a)(1) provides for a fault divorce when “the other spouse has committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.”  Therefore, if you break that requirement down, in order to desert your spouse, you moving out of the house must be (1) on purpose (2) and malicious (3) and last at least one year (4) and there is no reasonable justification (e.g., abuse) for you moving out (5) and your spouse must be innocent of any wrongful conduct (e.g., affair, abuse, etc.).  Additionally, the Superior Court in Johnson v. Johnson, 171 A.2d 638, 641 (Pa. Super. 1961) made it clear that the relocation from the home must be continuous for the specified time period (at least one year) or the absence does not qualify as desertion or abandonment.  Thus, as long as you notify your spouse of your intentions, provide him or her with a contact number, and continue to fairly contribute to your marital financial obligations, you should not need to be concerned about desertion or abandonment with respect to your divorce proceedings.

If you intend to move out of the marital residence, however, it is strongly recommended that you consult with an attorney.  While your move may not qualify as desertion or abandonment, it may significantly impact other rights, such as spousal/child support and custodial rights, especially if you have children who you intend to relocate with you.  If you, a family member, or friend are considering moving out of the home shared with a spouse, please contact our office for a free initial consultation.


Filed under Family Law

Can the Non-Custodial Parent Ever Claim the Children on Federal Taxes After a Separation or Divorce?

By Matthew T. Hovey, Esquire

It’s tax season again and the April 15th deadline is quickly approaching!  As a result, as a family law attorney, a lot of tax related questions are coming in from my clients.  A common question is: can the non-custodial parent ever claim the children on federal taxes after a separation or divorce?

The answer is yes, with the cooperation of the custodial parent (the parent with 51% or more custody).  If you and the other parent are separated or divorced, then, as long as either of you had primary custody of the child or children for the taxable year and either of you provided a majority of the support for the child or children for the taxable year, the custodial parent can transfer the claim to you, the non-custodial parent.  In order to effectuate the transfer, the custodial parent must execute IRS Form 8332 and you, the non-custodial parent, must attach the signed/executed form to your tax return.

A natural follow-up question is: why would the custodial parent agree to transfer the tax claim?  Often the transfer is part a negotiated property or custody settlement.  If the non-custodial parent is also the primary financial provider, the credit can be very valuable to them.  Additionally, those benefits can be long lasting because the children can be claimed for years and years.  As a result, it becomes a valuable bargaining chip and the custodial parent may find it beneficial to transfer the tax credit to the non-custodial parent in exchange for a larger immediate payment in a property settlement.

Lastly, what tax benefits are gained by claiming the children?  To answer this question, I’d point you an excellent article posted online by Bill Bischoff of the Wall Street Journal: Child-Related Tax Breaks After Divorce.  The article provides a breakdown of the available tax benefits.

If you are currently involved in negotiations for a property or custody settlement, please contact our office at 888-313-0416 to schedule a free initial consultation!

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Filed under Family Law