Reblog: Parent’s Ability to Demand Child Support CANNOT Be Waived

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Often, one parent forces the other parent to use child support as a bargaining chip during contract negotiations. For example, during a divorce, one parent may promise the other parent a larger settlement amount if the parent entitled to child support waives his/her right to demand child support in the future. The parent entitled to child support may feel pressure to forgo child support in order to obtain a lump sum payout, which would enable him/her to handle immediate expenses, such as the cost of relocating after the sale of the marital residence, attorneys fees, or to help the child transition through the divorce. The agreement to waive the right to demand child support, however, will not be enforced in Pennsylvania.

Why? Because the right truly belongs to the child, not the parent. Child support is intended to simulate a situation where the parents remain in an economic partnership. In other words, a child should not be economically prejudiced because his/her parents are not conforming to a traditional marriage arrangement (i.e., separated, divorce, or never married at all). Therefore, in reality, the right to demand child support belongs to the child and is merely exercised by the entitled parent. A parent can opt to not demand child support, but he/she can never completely waive the right to demand support in the future.

The Supreme Court of Pennsylvania stated:

“Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests, . . . They have no power, however, to bargain away the rights of their children, . . . Their right to bargain for themselves is their own business. They cannot in that process set a standard that will leave their children short. Their bargain may be eminently fair, give all that the children might require and be enforceable because it is fair. When it gives less than required or less than can be given to provide for the best interest of the children, it falls under the jurisdiction of the court’s wide and necessary powers to provide for that best interest. . . . [The parties bargain] is at best advisory to the court and swings on the tides of the necessity that the children be provided.” Kraisiner v. Kraisiner 928 A.2d 333 (Pa.Super. 2007) (citing Knorr v. Knor, 527 Pa. 83 (1901)).

In Blizzard v. Mehaffie,  a 2009 decision by the Court of Common Pleas of Adams County, Mother and Father, who both lived in Maryland, had a child. In 2000, Mother and Father entered into a custody agreement because Mother was going to marry a third-party who planned on adopting the child. The agreement explicitly released the Father’s obligation to pay support for the child. The third party never ended up adopting the child and later the Mother and the third party divorced. Mother then moved to Pennsylvania and, because her financial circumstances had changed, she sought child support in Adams county. Mother was awarded support, which Father contested. He based his appeal on his waiver in the Maryland agreement. The Court of Common Pleas in Adams county held that the agreement, which was formed under Maryland law, was contrary to established Pennsylvania public policy and therefore our system would not give the Maryland agreement “full faith and credit.” Thus, Father was required to pay Mother child support to aid in the care of the child.

Remember, the right to child support belongs to the child and, therefore, no parent can forfeit their power to demand child support.  If you or a loved one have any questions regarding child support or a divorce settlement, please contact me directly at mhovey@gmail.com.  Thank you.

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Reblog: Can I Void My Prenuptial (Premarital) Agreement in Pennsylvania?

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While viewed as taboo by many, prenuptial or premarital agreements can be beneficial to a marriage and are frequently utilized by engaged couples.  This is especially true if one or both of the parties is older, has assets, and/or has children to whom they wish property to pass upon their death.  The prenuptial agreement can be designed not only to protect assets in the event of a divorce, but to protect assets from automatically passing to the spouse upon the parties death, rather than to the children.  Nevertheless, when a divorcing couple has a prenuptial agreement, it is proper to review (for both offensive and defensive purposes) whether the agreement is voidable.  This article seeks to highlight the law in Pennsylvania invoked when a client asks: can I void my prenuptial agreement?

While there is a lot of caselaw on the subject that provides nuances to this area of the law, generally speaking the statutory answer lies in 23 Pa.C.S. § 3106(a), “Premarital Agreements.”  3106(a) declares that the party seeking to void a prenuptial agreement bears the burden of proof.  That burden is “clear and convincing evidence.”  Clear and convincing evidence, is defined as “testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.”  See In re ALD, 797 A.2d 326, 336 (Pa. Super. 2002).

What then needs to be proven by clear and convincing evidence?  3106(a) provides the party seeking to void the prenuptial agreement with two paths to invalidation.  The voiding party needs to prove either: (1) that the agreement was signed involuntarily; or (2) before the execution of the agreement, (a) the voiding party was not provided with a fair and reasonable disclosure of the property or financial obligation of the other party, (b) the voiding party did not voluntarily and expressly waive, in writing, the right disclosure of the property or financial obligations of the other party beyond the disclosure actually provided, and (c) the voiding party did not otherwise have adequate knowledge of the property or financial obligations of the other party.  In other words, to void a prenuptial agreement, you will need to prove that did not voluntarily sign the agreement (e.g., physical duress, mental incapacity, etc.) or that your spouse hid assets or liabilities from you which were completely unknown to you and you did not adequately sign away your right to the disclosure of this information.

If you or a loved one have any questions regarding a prenuptial agreement, please contact me directly at mhovey@gmail.com.  Thank you.

 

A Call for Division One Student-Athletes to Organize

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A definition for “leverage” is a “positional advantage; power to act effectively.”  There is an exploited segment of our society which unknowingly possesses an incredible amount of leverage, if it ever organizes and demands its piece of the proverbial pie.  That group consists of the collegiate student-athletes in division one sports.  If collegiate student athletes, football and basketball players in particular, fully comprehended both the exploitation and leverage inherent in their position, the landscape of college sports could be dramatically and instantly reshaped.  The fallout would ripple through academia, the entertainment industry, and professional sports.

Division one athletics is a billion dollar industry.  According to ESPN, in 2008, the top forty college athletic programs generated $3.1 billion in revenue, including ticket sales, donations, media rights, and branding.  When you expand the calculation and include all division one schools, the revenue was in excess of $5.6 billion.  When considering these figures, keep in mind that they are five years old and do not include recently renegotiated television deals and the proliferation of conference specific television networks, as well as the pending implementation of a college football playoff system.

An analysis of the athletes’ share of that revenue is staggering.  Time magazine’s blog published an infograph on the gap between what athletes receive and what, in theory, they should receive.  The calculations assume that the athletes, the working class of the industry, should receive 50% of revenue.  The infograph then allows you to enter a specific division one school and view the shortfall in the student athletes’ share of the revenue.  At Penn State, the shortfall per athlete on the football team is $335,258 per year.  At Texas, the shortfall is $546,832 per football player per year.  Even at Temple, which has a lower national profile athletically, the shortfall is $131,388 per year per member of the basketball team.

Almost all of that money is going to somewhere other than to the player on the field.  The athlete is placing his (or her) body in jeopardy and doing so while the institutions pocketing all of the financial benefits provide no long-term insurance or protection.  Further complicating the matter is the tome of NCAA restrictions on the athletes’ ability to personally share in the money making machine, supposedly written to promote amateurism.  While the school can profit from the sale of an athlete’s jersey, personalized signature, or participation in promotional materials, the student can do no such thing.  The athlete is limited to a scholarship.

While a scholarship is tremendous and should not be undervalued in any way, it also should not be overvalued.  The issue is not whether a student athlete should receive a scholarship; it is whether a scholarship is enough.  The student athlete should be entitled to more.  Imagine if the Penn State football player had the cumulative four year shortfall of $1.34 million available after graduation to fund graduate or professional school, create a start-up company or non-profit service organization, allow for a year or two of service in Africa, help care for a sick family member, and/or buy a home.

How could the athletes create the leverage needed to protect their futures?  Simple, all they need to do is to refuse to take the field.  Imagine what would happen if right before this year’s National Championship game the players on both teams refused to take the field.  The players would instantly have the attention of the executives at ESPN, the NCAA, the sponsors, the conferences, and the universities.  Without the players, the billion dollar machine stops.  So when you turn on the television this Saturday night for the game of the week, stop and consider where the money goes.  Stop and wonder what would happen if the players organized.  Stop and imagine what an athlete could do with both an education and significant funding to support post-academic pursuits.  Both the motivation and leverage for change quickly becomes obvious.

Pennsylvania: Illegal Placement of Children for Adoption or Custody

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Presently, a hot topic in the news is the illegal placement of adopted children.  The focus of the news stories are foreign born children adopted by American couples who later decide to shirk their responsibility and privately (and quietly) transfer the children to another individual or couple.  One such story is about Anna Barnes, a Russian transferred by her adoptive parents at age 13.   The article can be found at: http://investigations.nbcnews.com/_news/2013/09/10/20407919-adopted-girl-says-new-mom-slept-naked-with-her?lite.

As stated in the article, to help protect adopted children, Pennsylvania passed the Interstate Compact on the Placement of Children.  If the placement of a child crosses state lines, then the law requires that notice be given to the Department of Public Welfare and, if the child is being received into Pennsylvania, approval secured.  Placement is defined as “effecting admission of a child to an institution, except an educational institution, or effecting his reception in a family home, whether or not a charge is made for his care by the institution or family home.”  62 P.S. § 746 (2013).  In other words, the law applies not just to adoption, but also to transfers of custody.  A child shall not be transferred into or out of Pennsylvania without the Commonwealth’s approval.

To secure the Commonwealth’s approval, the payment of a bond (not to exceed $1,000) may be required if the child is “is not of unsound mind or body.”  62 P.S. § 749 (2013).  “If prior to [the child’s] eighteenth birthday or his adoption, he becomes a public charge or is adjudged a delinquent” then the Commonwealth may demand the child’s removal from the State by the original parents.  A failure to comply will result in the loss of the bonded monies.

The penalty for violating this law, however, is relatively light.  Knowingly placing a child in violation of this law may result in a misdemeanor, subject to a fine not to exceed $100 and up to 30 days in imprisonment.  62 P.S. § 753.

It is vital to note, however, that placements are excluded if they involve “a parent, stepparent, grandparent, aunt or uncle, nor to an adult brother, sister, half brother or half sister, when any such relative receives or brings a child into this Commonwealth for the purpose of giving him a home in the relative’s own family.”  62 P.S. § 752.

What is the take-away then?  (1) If you are an adoptive parent seeking the adoption of a child born or residing outside of Pennsylvania, verify that the placing agency or party complied with the requirements of this law prior to proceeding with the adoption.  If the placement is in violation of this law, there may be potential complications during the actual adoption process.  (2) If you are looking to place a child with a family friend (for example, a loving aunt and uncle who are not actual blood/legal relatives), even if they do not intend to adopt the child, you must comply with this law.

If you have any questions regarding adoption or custody crossing state lines, please contact me directly at mhovey@wolfbaldwin.com for a formal consultation.  Thank you!

Reblog: In Pennsylvania, Can I Force My Spouse to Move Out of Our Home?

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A common scenario after a husband and wife separate is neither party wants to move out of the marital residence/home.  For a variety reasons (e.g., financial, children, proximity to work, hope for reconciliation, spite, etc.), the parties remain in the same home, as roommates and attempt to maintain as much normalcy and civility as possible.  Often, unfortunately, the parties cannot make it work and one, or both, of the parties eventually wants the other other spouse out of the home.  The question is presented then: how can I force my spouse to move out of the house?

23 Pa.C.S. § 3502(c), “Family Home,” provides that “the court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.”  In legal terms, we refer to this as filing “exclusive possession of the home.”  It is strongly recommended that you hire an attorney to prepare and prosecute the Petition for Exclusive Possession on your behalf.

In determining to whom to award exclusive possession of the home, the court will consider a variety of considerations, such as whether the party seeking relief can afford to maintain the home on his/her own, the impact of the award on any children, whether the other party can afford independent housing, any marital misconduct of the parties, and other considerations.  As a result, be especially prepared to demonstrate the financial abilities of both parties.  The court can also limit the award of possession of the home.  In other words, you could be granted the home during the pendency of the divorce, but in equitable distribution, the home is awarded to your spouse as part of the division of the marital estate.

If you or a loved one has any questions about removing a spouse from the marital residence, please contact me directly at mhovey@gmail.com.  Thank you.

Wolf Baldwin and Associates

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I am proud to announce that as of today, September 3, 2013, I am now a member of the Wolf Baldwin team.  Wolf Baldwin and Associates is a general practice law firm with offices in Pottstown, West Chester and Reading, Pennsylvania.  The firm’s website can be viewed at: http://www.wolfbaldwin.com/.

As an attorney with the firm, I will be handling general civil litigation with a focus on family law and business representation, as well as assisting with the firm’s extensive municipal practice.  My email address is now mhovey@wolfbaldwin.com.  Please do not hesitate to contact me with any questions, concerns, or comments.

Reblog: Does Pennsylvania Have Legal Separation?

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A common question from new clients is, “does Pennsylvania have legal separation?” The answer yes, but how it is achieved differs from other states. The goal of this article is to explain, in general terms,legal separation in Pennsylvania. Three follow-up articles will focus on how a couple can become legally separated, how legal separation affects each spouse’s property rights, and how legal separation affects the couple’s marital rights.

In some states, in order to obtain legal separation from your spouse, you are required to file with the appropriate court. The story I use to illustrate how this works is that of Holly Lahti of Idaho. In January 2010, Ms. Lahti won half of the $380 million Mega Millions jackpot. At the time of the drawing, Ms. Lahti and her husband, who had a violent history, were separated. Nevertheless, at the time of the drawing, neither party had filed for divorce, so they were not legally separated. As a result, Ms. Lahti’s husband is likely entitled to a portion of her $190 million winnings. Upon learning of this news, her husband remarked, “That’s awesome! I won’t have to pay child support!” (See “Mystery Surrounds $190 Million Idaho Lottery Winner,” USA Today).

In Pennsylvania, however, you are NOT required to file any documents with the Court. According to 23 Pa.C.S. § 3102, separation occurs when the parties cease “cohabitation, whether living in the same residence or not.” Unless proven otherwise, legal separation is presumed to commence no later than when the divorce complaint is filed and served.

The Superior Court, however, has defined cohabitation as “the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” Thomas v. Thomas, 483 A.2d 945 (Pa.Super. 1984). This definition means that you and your spouse can be separated while living in the same home and, conversely, you can live in separate homes, but still not be legally separated.  The filing for divorce is typically not required to qualify for legal separation.

As a result, there is no clear test for determining whether a couple is separated. The courts review each separation on a case-by-case basis. The court consistently considers certain factors, however, including: (1) whether the parties still live together; (2) whether the parties maintained a social life as husband and wife; (3) whether the parties have continued sexual relations; (4) whether the parties have separated their finances; and (5) if the parties still live together, whether they continue to share the same bed. Compare Mackey v. Mackey, 545 A.2d 362 (1988), with Britton v. Britton, 582 A.2d 1335 (1990). No one factor controls.

The court has explained that the reason for such a loose examination of separation is to avoid discouraging reconciliation between the spouses. The court explained that a stringent test for separation could have a “chilling effect” because “estranged spouses would be reluctant to attempt a reconciliation if a failed attempt to re-establish the marital relationship causes” a delay in the overall divorce procedure. As a result, the court is there to resolve issues of separation without getting in the way of married couples working through a difficult, emotional divorce.

The Divorce Code states, however, that is presumed that separation occurs at the latest at the time when the divorce complaint is served on the opposing spouse. See 23 Pa.C.S. § 3102 Nevertheless, it must be noted that this is merely a presumption and can be rebutted by competent testimony and evidence to the contrary.

Understanding when you legally separate from your spouse is extremely important because it can directly impact your property rights related to both marital property and, like Ms. Lahti, post-separation property, as well as your procedural rights under the divorce and your entitlement to support. As a result, if you are considering a separation from your spouse (even if you are not interested in a divorce), I recommend reviewing the on this topic and then consulting with an attorney to understand your rights and obligations.

If you have any questions on legal separation, please contact me directly at mhovey@gmail.com.  Thank you.

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