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!

Reblog: How Do I Get My Maiden Name Back During/After a Divorce in Pennsylvania?

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A common question asked during the divorce process is: how do I return to my maiden name?  While many aspects of a divorce are complicated, this is not one of them!  The requirements are laid out in 54 Pa.C.S. § 701(b).

A woman can revert back to her maiden name by simply filing a Notice to Retake Prior Surname with the court.  The form can be prepared by an attorney, but it also normally available at Prothonotary’s Office for the county where the divorce has been filed.  The form must be completed, signed, notarized, and then filed with the court, along with the proper filing fee.  The Prothonotary will then stamp and seal the form, making it official.  You can resume your maiden name before or after the divorce is finalized.

Then, you will be required to notify all the relevant institutions about your name change.  This will include the Pennsylvania Department of Transportation (PennDOT), Social Security Administration, and various other institutions.  Additional copies of the Notice can be obtained at the Prothonotary’s Office.

If you have any questions or need assistance with reverting back to your maiden name, please contact me directly at mhovey@gmail.com.  Thank you!

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: 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.

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.

 

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.

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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