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

Leave a comment

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!

Advertisements

Child Custody: Do I Really Need His Permission to Move? (Published in the 422 Business Advisor)

Leave a comment

I am pleased to announce that my article on Pennsylvania’s Relocation Statute was recently published in the 422 Business Advisor.  Click here to view the article: http://www.422business.com/groups/legal-perspectives/child-custody-do-i-really-need-his-permission-move.  This is a must read article for anyone considering relocation with a child subject to, or potentially subject to, a custody order.  Please email me with any questions or concerns at mhovey@wolfbaldwin.com.  Thank you!

Frontiers in LGBT Family Law: Marriage and Beyond

Leave a comment

I am pleased to announce my attendance today at the continuing education class “Frontiers in LGBT Family Law: Marriage and Beyond” organized by the Pennsylvania Bar Institute in Philadelphia. Topics of the class include changes in federal rights and benefits post-Windsor, detailed analysis of all the state and federal cases currently pending involving gay marriage in Pennsylvania, assisted reproductive technology and adoption for same-sex couples, custody issues, and other pertinent topics. The presenters also include Bruce Hanes, the Register of Wills and Clerk of the Orphans Court for Montgomery County, who is issued almost 200 marriage licenses to same-sex couples in Montgomery County.

Please check back over the coming weeks for articles on LGBT rights and legal issues. If you have any questions or concerns (legal or otherwise), please contact me at mhovey@wolfbaldwin.com.

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

Leave a comment

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?

Leave a comment

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.

Analysis of NJ Same-Sex Marriage/Civil Union Decision: Garden State Equality, et al v. Dow, et al

Leave a comment

Moments ago, the Superior Court of New Jersey issued a ruling in Garden State Equality, et al v. Dow, et al in favor of same-sex marriages.  The decision can be viewed by clicking here.  The goal of this article is to explain the decision and provide some analysis of its impact.

To understand the decision, you need to also understand the context of the decision.  In 2006 in Lewis v. Harris, the Supreme Court of New Jersey issued a holding that equal protection required that the same benefits extended to heterosexual couples must be extended to homosexual couples.  New Jersey, however, included a caveat.  In the court’s opinion, equal protection permits different labels as long as the rights available to each set of couples are equal.  As a result, New Jersey passed a law allowing for civil unions for same-sex couples which were identical to heterosexual marriages despite the different titles.  The utilization of civil unions by the legislature was then challenged , but a divided court upheld the use of civil unions.

Then, earlier this year, the US Supreme Court in Windsor invalidated the Defense of Marriage Act (DOMA) which resulted in the demand that the federal government recognize same-sex marriages.  This extended a plethora of rights and benefits to same-sex married couples to which they were previously denied.  The relevant intersection with the Garden State case is that the extension of benefits following Windsor has been consistently limited to married couples and NOT civil unions.

The basis of the challenge in Garden State then, which was ultimately validated by the court in New Jersey, is that Windsor is a game changer and, as a result, civil unions are no longer equal to heterosexual marriages because the designation of “civil union” denies same-sex couples all of the federal rights and benefits available to heterosexual marriages.  The court provides a full list of examples of the type of benefits denied to same-sex couples in civil unions.  The court, therefore, found that the “ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy.”  As a result, the court deemed that the distinction between marriages and civil unions was no longer superficial and therefore in violation of the requirements of Lewis.  It concluded that “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”

Analysis for Pennsylvania: While a significant victory for same-sex marriage, the effect will be limited to New Jersey.  New Jersey’s situation is unique in that its court system previously required that same-sex couples be afforded the same benefits as heterosexual couples.  This is wholly distinct from Pennsylvania, which has yet to require equal treatment either superficially or substantively of same-sex and heterosexual couples.  That does not change my long-term projection for same-sex marriage in Pennsylvania, but the impact of the decision stops at the Commonwealth’s borders, in my opinion.

Please feel free to email at mhovey@wolfbaldwin.com with any questions or concerns.  Thank you.

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

Leave a comment

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.

Older Entries