Pennsylvania Family Law : Pennsylvania Divorce Lawyer & Attorney : PA Family Law Blog : Fox Rothschild Law Firm : Family Law Serving Philadelphia, Pittsburgh, Bucks County, Montgomery County, Chester County

Over the course of the past generation, our society has begun to recognize that sexual orientation has nothing to do with a person’s merit as a worker, a parent, or a human being, in general. It is an orientation rather than an aberration, yet our courts do not have the power to create cases or to promulgate laws based on their perception of need for change. Law is developed from the cases or controversies involving real people with existing legal issues.

 So it is that as recently as 1985 the Superior Court ruled that a parent’s homosexual relationship reflected a “moral deficiency” that a Court must consider as an adverse factor in a custody case. That case, Constant A. v. Paul C.A., (496 A.2d 1 (Pa. Super. Ct. 1985) stood unchallenged for twenty-five years until a recent decision by the Superior Court. The facts of the case are as follows:

In 2006 a mother informed her husband that she was involved in a same sex relationship with another woman. The mother filed for divorce and shared custody in Dauphin County. Her husband replied by filing for primary custody of the child. A judge heard the case and ordered a shared custody arrangement for 18 months after which the child would live primarily in the custody of the father. The mother waited out the 18 month transition period and then filed for modification asking for preservation of the status quo. The mother also presented expert testimony that the shared physical arrangement was working. When the trial court rejected the modification request and relied upon the 1985 Constant A. v. Paul C.A. decision considering a same sex relationship as a “negative”, the Mother appealed.

 In deciding this case, known as M.A.T. v. G.S.T, the Superior Court heard this case en banc. Ordinarily appeals are heard by panels of three appellate judges. Only in compelling cases (as decided by the Superior Court) are matters heard by panels of nine judges. The premise is that the Court wants the legal community and the public at large to understand that it is intent upon establishing lasting precedent.

The trial court’s opinion in M.A.T. v. G.S.T., it should be noted, found both parents to be fit and interested. It also noted, however, that the Mother did not overcome the principle that a same sex relationship must be harmful to the best interests of the child.

The Superior Court ruled that this doctrine no longer squared with Supreme Court rulings that each custody cases must be decided upon its facts and that each parent has the same burden of showing what is in a child’s best interest. Language that dismissed same sex relationships as “illicit” was dismissed as antiquated. The Court also recited language from its own 1982 decision in Custody of Temos where the Court noted that prejudice against interracial relationships had no place in a custody determination. There as here, the decision in a custody case must turn upon parenting quality in contrast to public perception of whether a particular environment was normal or accepted.

The decision in MAT v. GST was published on January 21. Any appeal to the Supreme Court must be filed within thirty days.

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It is that time of year again: Tax Season. If you have not already, shortly you will start to receive your 1099’s, W-2’s and other financial documents needed to prepare your tax returns. 

But this year, more so than in prior years, you may benefit from reviewing not only your basic tax forms, but other financial data as well. 

The American Recovery and Reinvestment Act of 2009 created a number of tax credits and deductions for individuals that should be kept in mind when preparing your returns. For example, you have probably heard that first time home buyers are eligible for a tax credit. But don’t forget that home buyers who are replacing a principal residence in which they lived for five out of the last eight years are also eligible for a credit. It is also worth reviewing the definition of “first time homebuyer” since your prior homeownership may not disqualify you from claiming this tax credit for your recent home purchase. 

You may not have qualified for the “Cash For Clunkers” program, but if you purchased a new car in 2009, you may qualify for a deduction. 

For more specific information, it is worth visiting the IRS’s site at http://www.irs.gov/newsroom/article/0,,id=204335,00.html

For some creative thinking on the topic, I would suggest Katie Adams’ column at http://www.msnbc.msn.com/id/34848380/ns/business-personal_finance/ 

Obviously, you should review all of your deductions and credits with a tax professional, but as we approach that most wonderful time of the year (do you sense my sarcasm?), it would be a shame to overlook the new credits and deductions.

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According to statistics available through CHIP, there are 197,150 people enrolled in CHIP in Pennsylvania. CHIP in Pennsylvania is available to all uninsured children and teens up to 19 years of age, who do not qualify for Medical Assistance. Due to CHIP’s eligibility requirements – which has no income limit for eligibility – it is often a viable option for people from a diverse range of economic backgrounds. Many times the cost of medical insurance through employment for a child support “obligor” is cost-prohibitive to the payor, while the payee receives less support due to the credit given by the Pennsylvania Support Guidelines to the paying parent. By minimizing both parties’ exposure to medical costs, so long as they are eligible for the benefit, CHIP has the effect of extending medical coverage over children, while possibly eliminating unreimbursed medical expenses to the parties.

CHIP, however, has recently made the news due to its consideration within the new Federal health care legislation. CHIP exists as both a state and federal program, with Pennsylvania enacting CHIP in 1992, and a Federal version being signed into law by President Bill Clinton in 1997. Both the U.S. House of Representatives and the Senate have two different ideas as to how to deal with CHIP within the Federal health care systems.

First, the Senate version of the health care legislation proposes extending federal financing through 2015 (it is currently set to expire in 2013). This amendment, advocated by Senators Bob Casey (D-PA) – whose father, Governor Robert P. Casey, originally signed Pennsylvania’s CHIP legislation into law – and John D. Rockefeller, IV (D-WV) would effectively keep the current version of CHIP in place, allowing for some changes in income eligibility.

The House, on the other hand, advocates eliminating CHIP altogether and funneling participants into Medicaid, the federal-state insurance program for the poor, or to one of the health insurance exchanges whereby medical insurance would be purchased at a reduced cost with government subsidies offsetting the cost.

An excellent summary of the two bills was written by David M. Herszenhorn for a New York Times health policy blog: (http://prescriptions.blogs.nytimes.com/2010/01/03/program-for-children-has-uncertain-future/)

Currently, CHIP eligibility and cost is determined by income and the number of children. http://www.chipcoverspakids.com/assets/media/pdf/2009_income_guidelines.pdf There is no income limit to qualify for CHIP, though income will effect amount of subsidy a child is eligible to receive, while under the proposed legislation, eligibility for the Medicaid option in the Senate plan would include up to 133% of the federal poverty line, while the House bill would be up to 150% of the poverty level.

The outcome of the Federal health care legislation will determine the future of CHIP in Pennsylvania and will be closely monitored in the coming weeks.

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Much as with a presidential election, the Pennsylvania support guidelines are to be revised by the Pennsylvania Supreme Court once each four years.  Drafts of proposed changes to the guidelines were published in July and December, 2008.  In each instance comment from the legal community and public was invited.  But for more than a year now we have been left to wonder how the guideline changes would look once finally completed.

The task was concluded on January 12 of this year when The Supreme Court issued Order 519 amending the guidelines effective May 12, 2010.  Until that date the existing Rules prevail but since the changes in the guidelines are themselves a change in circumstance, any order issued between now and May 12 is subject to further amendment at that time.  So, for practical purposes the guidelines are here today.

The major changes have to do with child support for households with combined net incomes exceeding $20,000 a month.  Under the last set of guidelines any case where income exceeded $20,000 was to be decided based upon proven expenses under a 1984 case, Melzer v. Witsberger. The data and calculations required to do a complete Melzer analysis were complicated and often produced wildly varying results from case to case and judge to judge.  So a decision has been made to take the guideline grids to $30,000 a month.  Where income is higher than $30,000 a formula is provided from which a presumptive amount of support may be calculated.

There are changes in the guidelines themselves although our initial review of those changes do not portend much radical change.  Here are some samples:

COMBINED NET

                                                1                              2                              children

10,000                               1390 (old)                1840 (old)

                                       1385 (new)                1965 (new)

15,000                                1741 (old)                2253 (old)

                                       1782 (new)                2319 (new)

20,000                                2301 (old)               2877 (old)

                                       2144 (new)               3018 (new)

25,000                          Melzer analysis required (old)

                                       2443 (new)              3389 (new)

30,000                          Melzer analysis required (old)

                                       2756                       3777 (new)

Many members of the bar are critical of what they see as an inherent stinginess in these guideline amounts.  In each instance, where combined net income triples from $10,000 to $30,000 a month, the amount of child support essentially doubles even though the parents presumably have much more free money (beyond their own core needs) to contribute to child support.

In cases where the income exceeds $30,000 per month net, formulae are employed to calculate the support amount.  Where one child is involved the support will increase by 6.5 cents for each dollar of income beyond the $30,000.  In the case of two children the support increases by 8 cents for each dollar over the $30,000 threshold.  So, if combined net was an astronomical $50,000 per month, two children would warrant a monthly award of $5,377.  One child would warrant $4,056.

Another significant area of change is in the area of shared custody.  Historically, to qualify for a discount from the standard guideline amount premised upon significant custodial time spent by the child(ren) with the non-primary parent, that parent had to have custody for 40% of the year or 146 nights.  Reaching that threshold entitled the parent to a discount upon his share of the support amount by 10 basis points.  Thus, if Father had the child 146 nights and earned 60% of the combined net income of both parents, his percentage obligation would be reduced by 10 basis points from 60% to 50%.

The new regime assumes that a parent who does not have primary custody still has the child 30% of the time or 109 nights.  If that parent has less than that amount, support may be adjusted upward on the theory that the non-custodial parent is not paying his/her share. This concept did not make it into the rule itself; only the commentary to the rule so that the issue needs to be raised before the Court and argued.  As before, once the 40% custody level is attained there is a 10 basis point reduction.  At 50% it is a 20 basis point reduction.  So if the non custodial parent has 78% of the net income, the support will be 58% and not 78%.  The new rules now state clearly that under no circumstances shall support of any kind be awarded to a spouse where the result would have the payee with more income than the payor.  The commentary states that Courts are to be less concerned about who has the child overnight and more focused upon what child expenses each parent is contributing.

Where each parent has primary custody of one or more children it has now been clarified that in calculating the support amounts the Court does not include the child support due to a parent as part of his income when doing the calculation for the other child or children.  It is only that parent’s net income before any child support award that it utilized.

In a rare case of the Rule of Civil Procedure reversing case precedent, the new rules state that mortgage adjustments in the amount of support for high mortgage cases shall only apply in cases where the parties are not yet divorced.

There are changes to the amount of spousal support and alimony pendent elite (pre divorce alimony) that warrant attention as well where the income of the couple exceeds $30,000 a month net.  In those cases, the commentary directs trial courts to apply the governing formula (30-40% of the difference in incomes depending upon whether there are minor children subject to support payments) but adds that the grounds to deviate from the guidelines recited in Rule 1910.16-5 as well and make a record of whether deviation was warranted.  To that end the commentary states that income and expense statements are to be filed in these cases so that the record may be developed.

There are also smaller changes worth mentioning.  In low income cases, the amount of income a person must have to support him or herself before a child support order may be entered has been raised.  Orders must be tailored so that any obligor retains $867 a month to support him or herself.

The use of earning capacity data (e.g., Dept. of Labor earnings reports) to calculate support orders is being discouraged.  The use of this data is relevant only when the Court finds that the obligor has willfully failed to secure employment consistent with abilities and that finding must be on the record. And earning capacity is to be based on a single full time job rather than some hypothetical construct of how and when a person could work.  The rule does not go so far as to exclude over-time or second job income from consideration in making an award where that income is actually paid.  Whether this means that a litigant could decline additional hours or quit a second job and use that as a basis to seek a reduction in an order premised upon historical over-time or supplemental employment is not really clear.

The guidelines themselves are appended to this summary with the following link:

http://www.aopc.org/OpPosting/Supreme/out/519civ.attach.pdf  rules

A new day begins…

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A couple of weeks ago we were asked by one media outlet to comment upon the Gosselin divorce.  While this certainly was a “media opportunity” the plain truth is that there was not a great deal to say that would have been newsworthy.

The Gosselins were a phenomenon created by the media.  While their family situation was most unusual, they were not unique nor newsworthy but for the fact that they had so many children and that got them a television show.  In the end, their notoriety made them somewhat wealthy and newsworthy but there was no true staying power to the story.  One has to wonder whether their marriage would have survived had they been the same people they started out as; a young couple with a large family struggling to make it all work.  Ten years from now, they will be a trivia question and little more.  

The Woods situation is quite different.  It is clear to anyone who can read a newspaper or click onto “The Golf Channel” that Mr. Woods changed the sport in a way much as Arnold Palmer did in the late 1950s and early 1960s.  He is the face of the sport.  But fame comes at a price and brings with it many complications far beyond the ken of the young people upon whom the fame is bestowed.

We have no real familiarity with the situation but Mr. Woods was “built” from birth to become a world class golfer.  And in that aspect, he succeeded admirably.  But we commend to you a careful reading of Andre Agassi’s autobiography “Open”.  It describes a childhood not unlike that experienced by children who worked in coal mines in the early 20^th century.  Yes, Mr. Agassi was hitting tennis balls in exclusive clubs throughout his childhood but after one has hit 1,000 serves during the course of a weekend of practice, is the result any more enjoyable than separating bituminous from anthracite coal on a conveyor belt?  Woods has not yet written his story and chances are it will be some time before he does but we suspect that while most of us were at proms and hanging out during high school at the neighbor’s pool, Mr. Woods was devoting his time to safely exiting sandtraps and pot bunkers.  Having devoted his childhood and the first decade of his adult life almost exclusively to golf, it is little wonder that he may have been tempted to indulge in other sports.

From a divorce side, the fascination for us is in the “issue” of brand value.  We are told that Mr. Woods has earned more than $1 billion dollars in his relatively short career.  But the brand produced as much as $100 million dollars a year in revenue and until a month ago that brand seemed to have no foreseeable end.  Thus, it made perfect sense for him to renegotiate with his wife what was a $20 million payout after ten years (the couple has been married for five) and “up” the payments to $80 million if it would buy silence and peace for the “Woods brand”  This revelation however, only caused the number of sexual claimants to multiply.  If Ms. Wood’s can quadruple her “take” in exchange for her silence, why can’t every woman who kissed, slept or claims to have had a relationship with Mr. Woods sign on for some kind of remuneration or a moment of fame.  In a word, the levee broke and we now have an entire coterie of women claiming that they were involved in some way or another.  

The reason why Mr. Woods could earn $100 million a year was because he was not only a fabulous golfer but was perceived to be squeaky clean. John Daley could win the grand slam and four other majors and never hope to equal that kind of income.  So, if guilty, it is only fair that the endorsements depart and Mr. Wood’s will have to resort to a journeyman’s income of $20-30 million.  But what is sad, and often lost in this the race to “the truth” is that two young people with small children are caught in a maelstrom of controversy that only hurts them and their offspring.  Their advisers are largely “friends” who feel badly for her and who live from the income that his huge prestige has provided. Most of us will never know what that kind of wealth and notoriety bring.  But they come with a price and that is the complete loss of privacy not only for one’s self but for family as well. And while we often find ourselves coveting the wealth and notoriety of others, realize as well that these blessings come at a price that is almost as great as the benefits they bestow.

There is also very real contrast to be drawn.  The media made the Gosselins and, we can speculate, by making them famous, they planted the seeds of marital destruction.  It may have happened in any event but, as with the Woods family, fame and wealth created temptations.  But Mr. Woods’ talent will afford him the capacity to make many millions more.  The Gosselins are famous by circumstance and the television show that made them famous was among the first to reject them when their fantasy world crumbled.  We all aspire to be rich and famous but, as they approach this season of thanksgiving we suspect that wealth and fame are not being celebrated in two households that started 2009 as our vision of ultimate success stories.

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We are involved in a relatively simple case.  Wife is a homemaker only recently returned to work.  Husband is a mortgage broker.  Like many couples they became a bit over committed in the real estate market of the last few years. They wanted to participate in the real estate gains of the last few years and some of their investments had not panned out.  This is a classic work out settlement of the type we see with increasing frequency.  The smart move is to realize the problem and negotiate a settlement that preserves assets.

We have been litigating this case for the past 18 months.  In our judgment almost all of the litigation was not only unnecessary, but detrimental to preservation of the marital estate.  We entreated our opponents that more litigation was the last thing the parties needed.  Still the other side insisted that the battles go on.  We fought over support for a full day in a world where the incomes of both parties were either agreed upon or plain from the information provided by the employers.

Next we received a counsel fee petition.  The dependent spouse owed her counsel tens of thousands of dollars even after securing a substantial retainer. We resisted this request vigorously arguing that the facts were apparent from the beginning and the litigation almost completely unnecessary.  When the request for attorneys fees did not go in the direction she aspired, the opposing counsel filed a petition to withdraw.

The wife filed an answer professing that she had wanted to settle her case all along but that her attorney had told her the litigation was necessary and that her husband would be required to pay her attorneys fees.

We don’t know whether these allegations are true. But we can state almost without exception, that if an attorney tells a client in a domestic relations proceeding that he or she is certain to secure attorney fees in that proceeding, a second opinion should be secured. Even in cases where there is a contractual undertaking for a party breaching an agreement to pay attorneys fees, we have found that courts award such fees on a very conservative basis.  And in situations where attorneys fees are sought by reason of statutory allowance (i.e., the law expressly allows award of attorneys fees) such awards are usually a fraction of what is sought.

When can one ask for attorneys fees? Absent an agreement, attorney awards require a statutory basis.  Such awards are referenced in the divorce law. 23 Pa.C.S. 3702. Where there is a battle over custody jurisdiction, the statutes provides that counsel fees shall be awarded unless there is a finding that such an award is inappropriate. 23 Pa. C.S. 5452. In support cases Courts “may” award attorneys fees either to the oblige (the person securing support) or that person’s attorney. 23 Pa.C.S 4351 but a subsequent case interprets the statute to mean that the awards should not be a regular part of support proceedings but limited top extraordinary situations. Contempt of any kind of a divorce or alimony order invites a claim for counsel fees. 23 Pa. C.S. 3503(e)(7) and 3703(7). But this does not appear to be the case in a custody ( See Pa. R.C.P. 1915.12) or support case (See Pa. R.C.P. 1910.25) 

The statutes and rules say one thing, but courts remain chary of such awards.

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Whenever there is a deep-seated dispute concerning which parent, if either, should have primary physical custody of a child, a question commonly asked is whether the Court should have the benefit of a formal custody evaluation.  These studies, most often undertaken by psychologists, attempt to evaluate the relative parenting skills of the parents and seek to measure those skills against the perceived needs of the subject child.  The rules of civil procedure authorize courts to order such studies either by agreement or the request of one party. Technically, because these studies involve expert opinions, each party is entitled to his or her own expert.  But Courts actively discourage this not only because the evaluations are expensive (typically $5000-7500) but because experts separately hired by each parent tend to be viewed as “hired guns” for their employers.  The vast majority of such studies are jointly undertaken by neutral evaluators who is tasked to identify what custody arrangement would be in the best interests of the child involved.

The typical evaluation follows a fairly routine protocol.  Most evaluating psychologists send each parent a packet of information intended to secure a history of the individuals, their families of origin (i.e., their parents), the relationship that gave birth to the child and what has transpired since that relationship dissolved.  They will commonly ask for collateral contacts who can verify the accuracy of the information submitted.  If either parent is already involved with a mental health professional, the evaluator will typically ask permission to discuss the matter with the treating professional (e.g., psychologist, psychiatrist, counselor or social worker).  Having secured this information the next step is ordinarily a face to face interview with each parent conduct without the other parent present.  At some point in the process many psychologists want to see the dynamics of both parents together in the same room.  Some like to observe this early in the evaluation; others make it a last step before completing their reports.

Except in instances where the child is too young to effectively communicate, most evaluators want to separately interview each child involved.  They may also want to see the child interact with each of his or her parents either in the evaluators office or in the home where that the parent and child occupy.  The children are often tested using tests directly intended to help the evaluator determine which parent the child is more closely bonded with.

Parents are also commonly tested using devises like the much joked about Rorschach ink blot test and the MMPI (566 yes/no questions that seem pretty bizarre when you read them).  These tests are intended to assess whether either parent has a diagnosable mental condition.

So what comes out of all this. In the vast majority of cases, not much beyond a lengthy written report.  First, most people don’t have a diagnosable mental disorder and in many situations we read that much of the supposed aberrant behavior is attributed to a kind of “divorce syndrome.” The stress of separation and custody litigation does often cloud judgment and create reactive parenting. Second, even people who have mild disorders can still be very effective parents.  Beyond the testing, many judicial officers don’t find the reports very helpful, especially as children grow to be old enough to articulate their own views.  But despite these limitations clients and many attorneys continue to believe that these reports can “win” the case and Courts are inclined to permit evaluations to go forward often because there is hope that a custody evaluation will provide a springboard to case settlement.

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The Wall Street Journal edition for August 22, 2009 features a fine article by John Freeman which the author describes as a “manifesto for slow communication.”  What made it all the more real was the experience of the past two days.  The most memorable moments of that period were: (1) a colleague telling me that a client’s effort to start a new business was gravely set back by an errant “reply to all email” and (2) the experience of watching a family of six sit down to a Saturday night dinner in a local restaurant whereupon half the family immediately reached for their hand held devices.

I defer to Mr. Freeman:

“The ultimate form of progress… is learning to decide what is working and what is not; and working at this pace, emailing at this frantic rate is pleasing very few of us.  It is encroaching on part of our lives that should be separate or sacred; altering our minds and our ability to know our world…”

While acknowledging that this new technology has its merit Freeman notes that for the first time since the Industrial Revolution the concept of time “away” from work has begun to steadily erode.  In our new search to remain connected he notes that we now endure flotillas of unnecessary jabbering that makes it difficult to distinguish “signal from noise”.

The new phenomenon we experience today is what I will term “drive by lawyering.”  With increasing frequency clients ask to skip coming in for a personal interview in favor of a phone call. Better yet, get an answer on the fly by email. These are indeed useful devices for both lawyers and clients but they are handled without perspective.  The goal is to put your economic house in order or to formulate a new living arrangement with your children.  This kind of goal is rarely advanced in increments of ten or twenty minute conversation let alone a five minute email exchange.

Your divorce involves your family and your money.  Take the time to do your best to get it right and give your lawyer the tools and the time to do so.

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There are two reasons family law will always be a busy area of practice.  The reasons are that there are two subjects we do not teach in school: conflict resolution and money management.  If people could manage their money or the conflict in their lives, the divorce business would be in for a major downturn.

Practical financial advice is hard to come by.  And we say this with some authority because we have been looking for professionals who understand household finance.  Yes, there are thousands of publications out there that will tell you how to ladder certificates of deposit or dollar cost average your way into index funds.  But, how much you spend on a car or an apartment often determines whether you have any money to invest at all.

Ironically, we found some sensible and practical advice in the September, 2009 issue of Glamour Magazine.  No kidding.  Wedged in between Jessica Simpson’s views on men and three flat belly secrets we found an article by Sophia Banay supported by a woman named Galia Gichon who founded something called “Down to Earth Finance.”  The magazine is worth buying for all of the advice but the segment we particularly liked was the part discussing how to budget a $50,000 income.  Gichon breaks down expenses into four categories. She takes the budget and converts to monthly income of about $4150.  She appears to allow for income taxes although that number is not discussed.  But her breakdown is divided between:

    Fixed expenses that don’t change monthly                         $1665 a month

    Discretionary living expenses                                             $830-970 a month

    Retirement savings                                                            $417 a month minimum

    General Savings                                                                 $140-280 a month

Gichon comments that fixed expenses including rent, utilities and car payments should not consume more than 60% of your net income (gross income less income taxes).  She suggests that rent or mortgage payments should not exceed half of the fixed expense budget, although this can be a tough assignment in many urban parts of this country. But if that is where life takes you, the answer may be that you don’t drive the same car or limit your discretionary expenses.

Obviously, it is also possible to forego general savings, especially in a world where you are already saving for retirement.  The article suggests that discretionary expenses be limited to 30% of net pay.  This is where the weak tend to falter at the altar of clothing stores, restaurants and Starbucks.  Another contributor to the article, Maria Bartiromo of Closing Bell on CNBC sagely offers that you allow yourself a day before making any major discretionary purchase.  Time afford perspective and you may actually discover that television is almost as enjoyable on the 30 inch flat screen even though the 42 inch beckons.

The article also addresses the subject of debt.  In the past the standard advice is that you need to save three to six months income to cover you for the “rainy day” of illness or unemployment.  Today, consumer credit may fill in the gap, but we are finding that many people are already using their cards to fund expenses they can’t afford long before the rain day ever comes.  These are folks who simply cannot survive if a crisis emerges because they are already deep in high rate debt.

The goal is to budget but before you can intelligently budget you must first be thoroughly familiar with what you bring home and what you currently spend.  It is not a pretty task but people who want to have money when they stop working had better address the question sooner rather than later no matter what their marital status.

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