Reblog: In Pennsylvania, If My Spouse Had an Affair, Can I Use That Against Them in Our Divorce?

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An affair can often lead to a divorce, which then leads to the question from clients: if my spouse had an affair, can I use that against him or her in our divorce?  The answer to the question is complicated and will depend greatly on the facts of the case.  The goal of this article is to explain the various situations where an affair can play a role in a divorce.

23 Pa.C.S. § 3301(a)(2) provides that a fault divorce can be obtained when the offending spouse has “committed adultery.”  That is only half of the story, however, because the law provides for defenses to fault grounds.  Generally speaking, the defenses include provocation, condonation (“forgiveness”), and insanity.  There are also defenses specific to adultery, laid out in 23 Pa.C.S. 3307(b), which include: (1) other spouse guilty of the same conduct; (2) other spouse admitted the offending spouse into a “conjugal society;” (3) offending spouse embraced the defendant after learning of the affair; (4) allowed the offending spouse to prostitute himself or herself; or (5) exposed the offending spouse to “lewd company” which led the offending spouse to have the affair.

In terms of you versus your spouse, of the those defenses, the two most common defenses raised are that either you, yourself, also had an affair and/or you knew of the affair and forgave them, either verbally or through your conduct.  That last part is important because, legally speaking, spouses often bestow forgiveness without realizing it.  While it can be debated whether the caselaw needs to be updated, under the current state of the law of Pennsylvania, if the husband and wife have sexual relations after the affair is revealed, forgiveness has likely been bestowed, which nullifies the affair in legal terms.

If the offending spouse cannot raise a defense, then the affair is most relevant when it comes to the grounds for divorce, claims for alimony, and claims for spousal support.  You may use the affair against your spouse in these contexts.  Otherwise, the affair is not relevant.  This is surprising to clients who expect to gain an advantage in the distribution of the marital estate, but the affair is not relevant to property division.  23 Pa.C.S. § 3502 provides the factors the court is to consider when equitably dividing the marital estate.  Marital misconduct is not one of the factors.  In fact, the legislature explicitly instructed that property is to be divided “without regard to marital misconduct.”

If you or a loved one have any questions regarding the interplay between marital misconduct and a divorce, please contact me directly at mhovey@gmail.com.  Thank you!

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Reblog: In Pennsylvania, What Happens if We Divorce Without Dividing Our Property?

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Most couples can agree to get a divorce, but few can agree on how to divide their property.  As a result, equitable distribution in Pennsylvania can be very costly and require the assistance of an attorney and experts, such as real estate appraisers and forensic accountants.  Many couples, therefore, either choose to not or cannot afford to utilize equitable distribution.

What happens to the marital property then?  Who owns the property?  Who can possess the property?

The answer is enunciated in 23 Pa.C.S. § 3507(a), but understanding the statute requires an understanding of the legal terms it employs.  The two terms are “tenancy of entireties” and “tenancy in common.”  When a husband and wife purchase/receive property, they own it as “tenants by the entireties.”  Essentially, they own it jointly and there is an automatic transfer of the property from one spouse to other upon the death of one spouse.  Prior to the conclusion of equitable distribution, the court can step in and divide this property between the spouses “equitably,” based on the factors in 23 Pa.C.S. § 3502.  Once the divorce is concluded, however, the property converts to “tenancy in common,” and the ex-spouses own it as “tenants in common.”  Tenants in common are more of partners.  They own the property equally in separate shares.  One tenant in common could sell his or her share or will it any one they want.  The property will not automatically pass from one tenant in common to the other.

The conversion of the property can cause issues if either party wants to pursue their share of the property in court.  At any time, either party could file for the sale of the property, so that the proceeds can be divided equally between the parties.  This could be to the detriment of one party if in equitable distribution the could had the power to grant them 60% of the equity in the property, but now, because of the divorce and conversion, the court is capped at 50% of the equity.

This also creates the risk for unfair surprise and a lot of financial uncertainty.  For example, if both spouses own a house, divorce without pursuing equitable distribution, and one spouse voluntarily moves out of the home, at any time that ex-spouse could file an action with the court to force the sale of the other ex-spouses home.  The house will either be sold or the ex-spouse residing in the house will need to buy-out the other ex-spouse.  These are only some of the negative consequences of not pursuing equitable distribution.

The best alternative to a nasty fight over property is to reach an agreement on how to divide the property between of you.  If this occurs, it is strongly recommended that even you hire an attorney to prepare a property settlement agreement rather than simply divorcing without addressing your property issues.  Failure to do so could be disastrous or cause issues with lenders.  The property settlement agreement can properly avoid the surprise and financial uncertainty described above.

If you have any questions regarding the division of marital property, please contact me directly at mhovey@gmail.com  Thank you.

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.