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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

SUPERIOR COURT CLARIFIES WHEN CUSTODY FACTORS MUST BE EVALUATED

Posted in Custody, Practice Issues

We are slowly observing some flesh of judicial precedent applied to the bones of the custody stature enacted by the General Assembly and made effective in January, 2011.  A recent and significant contribution to that came in a Superior Court decision which was ascribed precedential value on July 11.

S.W.D. v. S.A.R. is an appeal from a custody decision made in Armstrong County.  The dispute involved a child identified by initials in the opinion as B.A.D. and is reported at 2014 Pa. Super. 146.  The primary dispute revolved around where a five year old would attend kindergarten.  The parents disagreed and when that disagreement ended in selection of public versus church oriented kindergarten, the Father appealed.

The seminal question decided in this case was whether a school decision required the trial court to evaluate the sixteen specified custody factors legislated by 23 Pa.C.S. 5328(a).[1]  The Superior Court’s panel, consisting of Judges Stabile, Bowes and Wecht provide bench and bar with a cogent analysis of when the factors must be drawn from the statute book and applied to the facts in order for a trial court decision to be fully reviewed.

The Court latches on to the statute itself and its internal statement that the factors must be applied to any form of custody.  This is distinguished from custody decisions which may change terms but not form.  The Court decided that a decision related to where a child is schooled is not one that warrants analysis of all of the statutory factors, although it did note that a school change that required a change in the form of the custody (e.g.,  a school so distant that one parent could not fulfill the custody arrangement and get the child to school) might require the complete analysis.

The Court also cited its own decision in M.O. v. J.T.R. wherein the question was whether a parent awarded a custodial period had the duty to take time off from work when awarded custody during school vacation times.  85. A.3d 1058 (Pa. Super, 2014). In that opinion the Court stated that if the decision does not affect the physical allocation of time between the parents, the Section 5328 factors do not come into play. Id., at p. 1063, n. 4.

The panel also cited three other cases involving school selection as cases which did not involve changing the form of the custodial arrangement.  See, Staub, 960 A.2d 848 (Pa.S. 2008); Fox v. Garzilla, 875 A.2d 1104(Pa.S. 2005); Dolan, 548 A.2d 632 (Pa. S. 1988)

The Court notes that the 16 factors may become relevant in any custody decision and that both the factors and the general mission of any Court are to promote the child’s interest. All that the decision really concludes is that not every trial court opinion need come wrapped in a 16 point analysis.

Meanwhile, the ultimate decision is to reverse and remand. Why? In 2010 the trial court had imposed its version of a physical custody arrangement. But somewhere along the way the parties had decided to alter it to something else.  The petitions that brought them to court requested reinstatement of the 2010 order and, alternatively, judicial endorsement of the existing arrangement (i.e., “something else”). The Superior Court held that a request for something else besides the docketed order was, per force, a request to modify and required an analysis that did incorporate the statutory factors. So the cases was remanded for a full hearing on the question of whether a five year old is better served by spending 42.86% of time with Father or 50%.


[1] The newest factor effective 1/1/14 is involvement with child abuse and related protective services.  Sec 5328(a)(2.1)

PA COURTS WILL ENFORCE OUT-OF-STATE RESTRAINING ORDERS

Posted in Child Abuse, Evidence, Practice Issues, Protection from Abuse
Welcome Gift for Coming to PA and Violating a Restraining Order

Welcome Gift for Coming to PA and Violating a Restraining Order

Like many border areas of states, living in eastern Pennsylvania commonly results in legal issues which “span the river” into New Jersey, New York, Maryland, or Delaware (for our colleagues in the central and western part of the state, you can add West Virginia and Ohio); states with distinct laws and procedures from each other. Jurisdictional issues, choice of law issues, and standing can become important considerations for cases. For an action like a Protection from Abuse (“PFA”) or, in New Jersey, a Final Restraining Order (“FRO”), it is not uncommon for parties to live in each state and for incidents to occur in each jurisdiction.

Such is the recent Bucks County case on appeal to the Pennsylvania Superior Court. In this case, the issue arose as to whether Pennsylvania Courts had jurisdiction to enforce a New Jersey FRO. The FRO was entered against two individuals in New Jersey in 2009. Later, in 2012 and 2013, the protected party had interactions with the defendants which rose to violations of the FRO. He brought contempt actions in Bucks County after a series of incidents with the defendants in Pennsylvania.

The Bucks County wrote this opinion after the defendants sought appeal on three different grounds based on a due process claim, insufficiency of evidence, and, the one relevant for this discussion, that Bucks County did not have jurisdiction to adjudicate the contempt action against the defendants.

The Bucks County court relies on 23 Pa.C.S. § 6114.1 of the PFA Act which allows a plaintiff to file a petition for civil contempt with the issuing court or on a foreign protection order. As defined by 18 U.S.C. § 2266, a foreign protection order covers any order or injunction in civil or criminal court which prevents violent or threatening acts or harassment against sexual violence, contact or communication with or physical proximity to the protected person. In other words, if any jurisdiction issues a restraining order or something comparable, Pennsylvania will enforce it provided the violating act occurred in Pennsylvania.

The logic behind this section of the PFA code is obvious: what good does a restraining order do if its effectiveness stops at the state line? By allowing for the enforcement of the order in Pennsylvania’s courts, the goal – the protection of an individual from harm by others – is accomplished. Furthermore, by limiting the enforcement to incidents happening in Pennsylvania, there is no opportunity for forum shopping or abuse of the system by plaintiff’s looking for a favorable jurisdiction.

The Bucks County opinion strongly argues that jurisdiction exists to consider the Pennsylvania incidents for contempt of the New Jersey FRO. What this cases serves to demonstrate, however, is that restraining orders travel in Pennsylvania; the Courts will not deny someone an opportunity to enforce that protection simply because the restraining order was issued by a court in another state. The emphasis should be on the protection of the individual.

Smithers v. Stanton, C.P. Bucks County, Family Division, No. A06-09-61861-A-36; 2014 BCBA, 87 Bucks Co. L. Rep. 286 (2013).

(Image: www.wisegeek.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

ATTORNEY-EXPERT CONFIDENTIALITY NOW A RULE

Posted in Divorce, Practice Issues

In May I wrote about the Pennsylvania Supreme Court’s split decision (resulting in affirmation) on protecting the communication between attorneys and the experts working on their cases. This was an important decision for a number of reasons, but despite the affirmation of the lower court’s decision, the fact it was a 3-3 split with some dissent made it precedence, but not without some concern that another case could cause the courts to shift course again.

The Pennsylvania Supreme Court has now taken that decision one-step further and codified it as the new Rule 4003.5 of the Pennsylvania Rules of Civil Procedure. Unlike the Federal rule on attorney-expert communications, the Pennsylvania rule has no exceptions to its prohibition against producing this information. Some attorneys have cited concerns about this rule effectively making it impossible to detect manipulation of their opponent’s expert or the expert simply signing their name to a report prepared by the attorney. Nevertheless,this “bright-line rule” has gone into effect and precludes any production of communication between an expert and the attorney.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

COLLEGE SUPPORT AND THE APPARENT REVIVAL OF MILNE V. MILNE

Posted in Custody, Divorce, Support

MAZUREK v. RUSSELL   2014 Pa Super. 130 (2014)

College provisions in property settlement issues have always been a source of controversy.  The typical provision calls for mutual consent “which consent shall not be unreasonably withheld”.  The language seems clear enough when pen is set to paper but when enrollment time comes the games begin as mother has one set of ideas and father another.  The other wrinkle is that by the time college rolls around a child may be estranged from one parent.  So what is “consent” and can it ever be reasonably withheld?

A case decided on June 24 affords us some insight into these questions.  In Mazurek v. Russell, the parties agreed in 2010 to the typical language recited above.  When Mother filed an emergency petition to compel payment for one of the children to attend Marymount Manhattan college in NY, Father blasted back with several defenses including:

1.            Son had lackluster academic performance in high school;

2.            Son had been estranged from Father for five years despite Father’s best efforts. 

Father then said, he would pay if Luke reconciled with Father, maintained a 3.0 GPA and did not take a car.  His terms were not agreed to.  He then noted that there had been no consultation about the school selection.  

A hearing was held in late July, 2013.  The trial court heard evidence and ruled that Father was on the hook for the college and Mother’s counsel fees. 

On appeal a panel of the Superior Court found the “not unreasonably withheld” consent language to be ambiguous as a matter of law and subject to parole evidence to help interpret the intent of the parties.  The Court then looked at two conflicting cases where consent has been an issue.  The first, Fina v. Fina, 737 A,2d 760 (Pa. Super, 1999) held that mutual consent language required meaningful interaction.  A second case, Wineburgh v. Wineburgh, required payment on the basis that the agreement’s use of language that Father would “have a say” did not require consultation. 

The Mazurek Court sided with the ruling in Fina, noting that “we cannot ignore the significant of {mutual consent} language to which the parties contracted.  The Court found that Father evinced a reasonable basis for withholding his consent.  It also appears from the opinion that Father’s prior history of paying large sums for private secondary school for all children and private college tuitions for two other children were factors that weighed in his favor.  

There is an interesting twist to this reported opinion.  Judge Allen devotes a fair amount of time to discussing the estrangement issue and the opinion has a strong flavor of Judge Cirillo’s famous opinion in Milne v. Milne, 556 A.2d 854 (1989) where nine judges of the Superior Court decided that a child’s conduct toward a parent could be grounds to forfeit what was then a judicially imposed, non-contractual duty to contribute to college.  The question the bar will grapple with in the wake of this opinion is whether “reconciliation” with a parent is a necessary component to consultation and consent.  What makes the question even more complicated is that if Father’s testimony is to be credited, he was estranged from his child two years before he contracted to pay 100% of his reasonable expenses for college.  Did Father not have the last clear chance to demand “reconciliation” as a condition to assuming this pricey obligation?

FAMILY LAW TAX ISSUES: THE GIFT TAX EXCLUSION

Posted in Divorce, Equitable Distribution, Taxes
I hope you enjoy your box full of $20's

I hope you enjoy your box full of $20′s

As we head into the second half of 2014, now is a good time to take stock of your financial and tax situation, particularly if you are separated or divorcing. Over the next few posts, I am going to highlight some areas worth considering if you are in either situation since it is much easier to stay ahead of these issues rather than scramble to catch up to them in January or February next year.

For this post, I wanted to give a brief summary of how monetary gifts are dealt with by the IRS and how they can impact a divorce case.

The first thing to know is that the IRS has a maximum tax exclusion of $14,000.00 for gifts.  The IRS allows up to that amount to be excluded from taxes, however, anything above $14,000.00 requires a Gift Tax Return to be filed by the person giving the gift and the possibility that they will have to pay tax on the gift. The recipient (or “donee”) does not have to file anything with the IRS or pay any taxes on the gift they receive. Anyone giving gifts in excess of $14,000.00 has to file a Form 709. The exception to this rule is if the gifts are made to a spouse.

Understanding the rules on gifts and the threshold for what requires the filing of a gift tax return is important for those receiving financial assistance from a third-party during a divorce action. The donor may be able to contribute the money as an excluded gift.  From the perspective of litigation, it is also important where there are concerns that an estranged spouse is dissipating the marital estate through gifts to third parties. Requesting the production of gift tax returns should be a standard discovery request in most divorce cases.

Though this is really an estate planning concept, it nevertheless can be relevant in a divorce action. There may also be situations where a spouse receives a portion of the estate and there are tax ramifications which he or she cannot address due to their income levels. Gifts and other estate planning devices may be useful tools for managing such issues. If you have questions about gifts and gifts exclusions, speak to your attorney. In my firm, we are fortunate to have many excellent estate planning attorneys who collaborate with us on family law cases to help address such issues.

Form 709 can be found here.

(Photo Credit: www.giftster.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

 

 

SOCIAL MEDIA PRENUPS TRY TO ENSURE PRIVATE MOMENTS STAY PRIVATE

Posted in Equitable Distribution, Evidence, Practice Issues, Prenuptial Agreements
The Instruments of Embarrassment

The Instruments of Embarrassment

A recent story through ABC’s Good Morning America website highlighted the evolution of the prenuptial agreement in the social media age. Divorce lawyers are reporting an increasing amount of requests for language in prenuptial agreements – if not stand-alone agreements – addressing social media usage.

It makes a lot of sense. In an age where nothing ever really seems to be removed from the internet, protecting one’s privacy or “personal brand” on social media is a major personal and professional priority. People have been fired from their jobs due to content someone posted about them online; personal and professional reputations have been tarnished over embarrassing photos.

The concept of this clause does raise some intriguing legal issues. First, your ex-wife posting an embarrassing photo of you is not going to be defamation per se; after all, it is difficult to assert she is lying when the photographic evidence speaks for itself. Secondly, how can financial damages even be measured for someone posting on social media? Unless a job is lost or there is a concrete connection between the posted content and the outcome, I think a person calling “foul” over their ex-spouse posting photos will have a difficult time proving they lost income.

The way to give such an agreement “teeth,” therefore, is to provide for a defined financial sanction against the posting party. One attorney in the story suggests that the sanction should be relative to the earning power of the violating party and apply to each incident in which barred information was published. Practically speaking, the sanction has to be great enough that neither party will feel that the personal satisfaction of humiliating their former spouse outweighs the financial penalty.

I would think such an agreement, however, would need to carve out an exception for trial evidence or at least be narrowly tailored to the dissemination of information through social media platforms. Pictures and video acquired during the marriage can be a valuable resource for the corroborating behavior or actions of a party; it can provide important, admissible evidence. A blanket prohibition of the dissemination of pictures or video could undermine their application at trial and would certainly be subject to a discovery motion as to whether the agreement precluded the use of information at trial or, merely, the use of such information on social media. I would be surprised if people – particularly if they plan to have children – would want to prospectively preclude the introduction of certain types of evidence which may be relevant at a custody trial. An exception for the use of such media evidence at trial or, possibly, an agreement that such evidence would be viewed by the judge “in camera” (i.e. not in open court) could also help address the sensitive nature of the evidence.

It is axiomatic that technology changes faster than the court system can keep up. Private agreements, however, can mirror the shifting landscape of technology and privacy. Expect to see greater creativity in prenuptial and post-nuptial agreements dealing with this and other technologically based issues.

(picture credit: celeritystaffing.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty

SAME-SEX MARRIAGE LEGAL IN PENNSYLVANIA

Posted in Divorce, Same Sex Marriage

This afternoon,U.S. District Judge John Jones ruled that Pennsylvania’s version of the Defense of Marriage Act banning same-sex marriage is unconstitutional. This decision, out of the Middle District of Pennsylvania, paves the way for legal, same-sex marriage in Pennsylvania. The repercussions of this decision remain to be seen, however, since there are other pending cases in other courts in the state, namely the validity of same-sex marriage licenses in Montgomery County.

This decision is the recent result of both sides of the case asking the court to make a determination on the pleadings, rather than going through a trial.

Read the full memorandum opinion here.

 

SECRET, SECRET, I’VE GOT A WORK-PRODUCT PROTECTED SECRET

Posted in Divorce, Equitable Distribution, Evidence, Practice Issues
Psst, can I stop whispering in your ear and just email you instead? Its work-product.

Psst, can I stop whispering in your ear and just email you instead? Its protected as work-product.

Many of my cases involve the use of expert witnesses; individuals hired to review and testify about a specific issue or topic. Usually they are financial experts whose job is value a particular asset such as a business, while other experts could be psychologists conducting a custody evaluation. In other areas of law, there are individuals qualified as experts in virtually every conceivable topic and issue.  Whatever the underlying issue of a case, it is reasonable to assume there is an expert out there prepared to testify about it.

Consequently, communication between an attorney and the expert working on the case is critical and often encompasses trial strategy. It is vitally important that the expert and the attorney can openly and easily communicate about the case.  Not too long ago, however, this relationship and communication became subject to discovery in the case of Barrick et al. v. Holy Spirit Hospital of the Sisters of the Christian Charity et al.  At the time, the trial court ruled that expert testimony was subject to Pennsylvania’s liberal discovery rules and should be turned over to the other side. This was a radical departure from commonly held beliefs and practices protecting this communication and created significant consternation among attorneys.

The Superior Court heard the case in 2011 and overruled the trial court’s decision and barred the production of communication between a surgeon serving as an expert and the plaintiff’s attorney in a personal injury case. Attorneys across the state breathed a sigh of relief; they could actually email their experts again.

Recently, any ambiguity was mostly removed when the Pennsylvania Supreme Court upheld the Superior Court’s decision through a split, 3-3 decision (an evenly divided court results in affirmation of the Superior Court decision). I say mostly because it was a 3-3 split, but in affirming the decision, three justices created a bright-line rule denying the production of expert/attorney communication.

The argument that communications with experts did not fall within the work-product doctrine of confidentiality and were critical for counsel to the cross-examination and critiquing by counsel was not accepted by the Court. The Court felt that by having the opportunity to cross-examine the expert, there was sufficient opportunity to attack his/her opinion without having to divulge communications between the expert and attorney.

This is an important decision in Pennsylvania and affects every litigator, regardless of area of expertise and will allow for experts and attorneys to freely exchange ideas without fear that they will turn into trial exhibits.

Photo Credit: www.health.com

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty

THE ACCIDENTIAL BIGAMIST: CONGRESSMAN CITES BIGAMY TO VOID 24 YEAR MARRIAGE

Posted in Divorce
Good luck pulling that off, pal.

Good luck pulling that off, pal.

Until something changes regarding same-sex marriage, Pennsylvania generally has a few pretty simply criteria for getting married: be over eighteen years of age; be of “sound mind;” be sober (at least at the time the license is issued); don’t marry your first cousin (or sister, or uncle, or mom – there are fourteen different iterations in the code), and; don’t be married to anybody else.

That last factor, believe it or not, is actually not listed in 23 Pa.C.S.A. § 1302 which identifies the restrictions on issuing marriage licenses. Instead, it can be found in § 1702 which addresses marriages during the existence of a former marriage. Under Pennsylvania’s law, being a “bigamist” (which is against the law) will not actually immediately invalidate a marriage. Section 1702 offers a wordy, if not pretty simple, analysis on how to handle that situation. It assumes the “bigamous” a marriage was entered into in good faith and if it turns out someone was currently married, but mistakenly thought that they were unmarried due to death, annulment, or termination of the marriage, the the subsequent marriage will be valid effective the date that prior marriage is officially terminated.

Basically, the accidental bigamist has an opportunity to cure the defect – maybe they need to have a decree entered; maybe their former spouse faked their death or they were so estranged for so long that they thought they were dead. Whatever the case, if the couple involved wants to remain married, they will have an opportunity to address the prior marriage.

On the other hand, bigamy is justification to annul a marriage under § 3304. The effect of an annulment is to treat the marriage as though it never existed. This could have major ramifications to the determination of a marital estate (i.e. there is not one). Not unlike situations we have seen with common law marriages, where a marriage is determined to be null and void, the protections a marriage affords people instantly dissolves: people own property as “joint tenants” rather than by the “entirety”; the appreciation on an asset is simply the titled party’s asset without any right by the other to the value through marriage. In short, the marital estate ceases to exist and titled ownership dictates who retains what. For a long marriage, this could leave the “dependent spouse” with little or no assets and property rights. A civil lawsuit might be the only option to recover any financial interest.

Such is the potential for Florida Congressman Alan Grayson. Congressman Grayson is in a bitter divorce with his wife and recently filed an answer to her divorce petition seeking to have the marriage annulled on the grounds that she never divorced her first husband. If successful, Congressman Grayson would have a twenty-four year marriage immediately voided. Since there would not be equitable distribution without a marriage, he is seeking civil damages against his wife in the form of ‘”all of the money and property she has received” during their “purported” marriage.’ He is also seeking custody of their five children.

Even under Pennsylvania law, if Mrs. Grayson were to cure the defect to the marriage, because there is no intent to remain married it is unlikely she would be able to establish her marriage to Congressman Grayson as valid. Moreover, even if she were successful on that point, there would be no marital estate because the establishment of the valid marriage would be superseded by the date of separation.

Photo Credit: The Bigamist

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty

SUMMARY JUDGMENT MOTIONS IN PA SAME-SEX MARRIAGE CASE MAY PROMPT EARLY DECISION FROM COURT

Posted in Divorce, Same Sex Marriage
Mexico Institute

(Photo Credit: Mexico Institute)

The battle over same-sex marriage rights in Pennsylvania has been simmering since last summer when concurrent litigation was initiated in a few different judicial venues. One case was filed in the Middle District of Pennsylvania and involves as plaintiffs eleven couples, two minor children, and a widow to a long-term partner. Having had the winter to conduct discovery, marshal together their legal arguments, and prepare for the final phase of litigation, both sides are coming out aggressively in search of a determination by the court before the June 2014 trial date.

Recently, the plaintiffs filed a motion for summary judgment which prompted a reply and cross-motion for judgment from the Commonwealth. In essence, the Commonwealth is asking the judge to rule in their favor on the basis that legislature has the constitutional right to define marriage as it is articulated in Pennsylvania’s version of the Defense of Marriage Act.

While the plaintiffs seek to invalidate Pa.DOMA on the basis that it violates their due process and equal protection rights under the 14th Amendment of the U.S. Constitution, the Commonwealth points to the legislative intent as demonstrating a legitimate state interest. The plaintiffs hope to use the momentum created by the U.S. Supreme Court’s decision in United States v. Windsor, et al. which upheld the invalidation of the operative portion of the federal Defense of Marriage Act; the Commonwealth is actually citing that case as proof that states have the right to legislatively define marriage as they deem fit.

To mix metaphors, each side’s attempt to win through summary judgment is analogous to throwing an early knock-out punch rather than go through the siege warfare of trial. If the judge decides to rule on the motions, a decision can be made after May 12th. Based on the article written by Dan Packel for Law360.com, the motions seem to make it likely the June trial date will be moved to accommodate the briefing and argument schedule for summary judgment.  

A determination adverse to the plaintiffs in this case would not eliminate the chance for marriage equality in Pennsylvania; the other cases filed would keep that opportunity open. However, it would be a serious set-back and carefully considered by pending litigation in Pennsylvania and nationally. Based on the outcomes of similar litigation in other states, upholding Pennsylvania’s DOMA and continuing to ban same-sex marriage would be appear be run contrary to prevailing national decisions.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty