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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

DELAWARE PASSES CHILDREN’S BILL OF RIGHTS

Posted in Child Abuse, Custody

Leslie Spoltore in our Wilmington office recently wrote about Delaware’s passing a children’s “Bill of Rights” into law.  This law specifically addressed what children are to receive while under the care of the Department of Services for Children, Youth, and Their Families.  I suspect that many of these rights already exist in whole or part in other sections of Delaware Code, but by condensing them down to a single law and, perhaps more importantly, allow the child the right to address any violation of these rights through equitable relief with the court.

Pennsylvania revamped its Child Protective Services Law effective January 1 of this year in a reaction to the administrative and functional vulnerabilities and ambiguities cases like that of convicted abuser Jerry Sandusky exposed in the existing code.

There cannot be too many checks and balances in place when it comes to the care of children.  I think Delaware’s Bill of Rights for children is good law combining the symbolic act of distilling protective service concepts into a “bill of rights” along with some functional, helpful methods for a child to obtain relief when those rights are violated.

16 WAYS TO BETTER MANAGE CUSTODY CASES

Posted in Custody

I try not to become angry with clients; recognizing that they are in the middle of family law litigation.  But there are times when a client will insist that they know best “what the court will do”.  That can be a frustrating experience.

I had this occur with a client on Friday yet with a remarkable result.  The client was giving me conflicting messages of the result he desired and when I suggested possible settlement approaches, each was summarily rejected.  So, I got mad.  Along the way the client referenced the sixteen factors which Courts must now consider in rendering any custody decision.  So I told the client: “Look, this is going to court so I want you to be prepared.  Look at the factors and give me a brief analysis of each so that we have mustered our best arguments.”  I wasn’t expecting much because I really felt that the client was trapped in his own anxiety and paralyzed in the decision making process.

I still believe that to be correct.  But, on Monday I received a six page single space analysis of the factors as they related to his children.  The analysis was both reasoned and balanced.  He identified the other parent’s strengths while also giving full rein to the weaknesses.

The client surprised me.  And as I read his work, it occurred to me EVERY custody litigant should be required to prepare and submit a similar document with EVERY custody pleading.  I am not a fan of “make work” projects.  But in a world where I recently have had several conversations with judges and masters bemoaning the avalanche of new pleadings, many of which do little more than say that custody should be modified because “it’s in the child’s best interests”, is it not time to make litigants and counsel do more to frame the issues?  I have witnessed many hearings where the parties and, sadly, sometimes the attorneys, cannot articulate what change they want or why the existing arrangement no longer works.  I have watched judges and hearing officers tamper with arrangements where no one can really articulate how the current arrangement is broken, yet they will try to fix it through modification anyway.  Sadly, this does little more than invite more petitions and more tampering.

So, I offer a modest proposal.  Every custody pleading should have appended to it an analysis of the factors described under 23 Pa.C.S. 5328(a) prepared by the filing party.  The responding party has 20 days to file a similar document.  If the General Assembly thought these factors important enough to insist that the judges evaluate them in every case, shouldn’t the litigants be obliged to provide both the Court and each other with a specification of what is, right, wrong and/or in the best interests of the child.  As we all know the process of putting pen to paper often crystallizes issues and forces most people do deeper thinking.  As any judicial officer in Pennsylvania will tell you, custody litigants and attorneys could not be harmed by thinking more about custody issues and vocalizing less.

Note Bene: The “Factors” can be found by searching the statute:   23 Pa.C.S. 5328(a)

WHAT THE ASHLEY MADISON DATA BREACH REALLY MEANS TO DIVORCE LAWYERS AND THEIR CLIENTS

Posted in Divorce, Equitable Distribution, Evidence, Practice Issues, Support
Ashley Madison Data Breach only Slightly Less Obvious

Ashley Madison Data Breach only Slightly Less Obvious than Lip Stick on the Collar

 

When I first heard of the Ashley Madison data breach, I seem to be one of the few family law attorneys who felt somewhat cool to the idea it was going to result in a crescendo of divorce filings. First, due to Ashley Madison not having an email verification protocol, the presence of an email on the list is not in any way a confirmation that the legitimate owner of the email registered it with the website. Secondly, I had to assume that anyone with common sense was not using a “real” email and the chance for exposure would be minimal. Thirdly, I assumed that of the millions of identified users, perhaps a smaller percentage were active users and a portion were fake emails or users who registered as a goof; I imaged a much smaller pool relative to amount of registered users. Finally, I considered the other spouse and whether they would have the wherewithal or suspicion to search for their spouse’s email (emails?) among the users. Overall, I imagined a smattering of “Ashley Madison motivated divorces” being reported, but nothing that would move the needle on average filings.

If initial reports are accurate, I clearly overestimated the common sense of many Ashley Madison users and grossly underestimated their laziness in not opening anonymous, dedicated email accounts to register to the site.

Now that the data has been dumped and various websites are combing the data for notable users and email suffixes, I am much more certain that there will be some serious fall-out for relationships, certainly, but also for the employment of users. The news coverage surrounding the breach also brought to light what might end up being the most relevant aspect of the breach for any future divorce cases: the expense. Again, while the presence of an email is not dispositive of use, the credit card records are pretty conclusive.

Based on the price scaling reported, a motivated philanderer could rack up a fairly significant bill on Ashley Madison before they ever get to their first illicit rendezvous. When you factor in the costs of carrying on an affair (i.e. meals, travel, and gifts) the expenses increase exponentially. Each dollar applied to the affair is a dollar inappropriately dissipated from the marital estate.  Once the affair is exposed and a case is in litigation, a forensic accounting of bank accounts and credit cards will occur and eventually the financial scope of the affair will emerge.

The affair, in of itself, may not have a tremendous impact on a case since equitable distribution in Pennsylvania is blind to the bad actions of parties (unless those actions have a financial impact on the estate). For members of the armed forces, however, adultery is a punishable crime which could lead to dishonorable discharge and loss of financial benefits, such as pensions. Losing a pension adversely impacts not just the service member, but the service member’s spouse. Losing a retirement account due to such behavior would undoubtedly be argued as a dissipation of that marital asset and with the value of the lost pension being assigned to the service member and corresponding assets given to the spouse (assuming there are any).

Other people may be in sensitive positions involving confidential data or public positions where the appearance of impropriety from an exposed affair has a greater impact than whether the affair affects their ability to do their job. Losing a job over an affair could be interpreted as a “voluntary decrease” in income, not unlike being fired for cause or voluntarily taking a lower paying position to avoid a support obligation.

The real story about Ashley Madison data drop is not the salacious exposure of people seeking out affairs, but the breach of security for an organization relying so heavily on confidentiality – their entire business model and marketing campaign hinges on it. Go see our blog on data security for more information on such topics.

What will continue to generate news for the coming weeks, however, will be the cases where Ashley Madison data will be presented as evidence for economic loss in divorce or support cases, and the jumping off point for investigations into certain registered users. After the initial fireworks of the disclosures, this will be a slow burn story as more people are exposed and the repercussions are felt. The easy joke is that this is a boon for divorce lawyers, but I think it will be the family therapists and accountants who end up the busiest in the end.

(Photo Credit: Copyright a href=’httpwww.123rf.comprofile_toniton’toniton  123RF Stock Photoa)

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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

STOCK SPLIT HISTORY.COM; A RESOURCE FOR LAWYERS

Posted in Divorce, Equitable Distribution, Practice Issues

On April 15 of this year, a company called ETSY went public offering 111.25 million shares of stock at $16 a share. This produced what in stock parlance is called a market capitalization of 1.78 billion.  That means what the world thought ETSY was worth.  Once offered to the public it quickly shot to almost $30 a share, doubling its market capitalization. Today, the stock trades below $15.

Sometimes stocks rocket to levels that make them difficult to trade. In 2006 Mastercard went public at just under $40 a share. By 2014, it has risen to more than $800 a share. In order to make the stock more attractive to buyers in January of that year, the company announced a 10:1 split. Thus a person who owned 100 shares of the stock on January 21, 2014, awakened the following morning with 1000 shares.  Eureka! Right? Well not really, because when a stock splits, the price is divided commensurate with the split. So the 818.00 closing price on the day before the split was an $81 price the next morning. The market capitalization did not change. The investor was not enriched. Now typically, Mastercard at $81 a share is an easier stock to buy than at $818 but lawyers and clients need to understand that splits do not themselves create value.

There is also something called a reverse stock split. We saw some of these in the wake of the 2008 recession. When a stock plummets so low that buyers start to equate it with a penny stock, discussion turns to pumping up the price by reducing the number of shares. In 2009 the insurer AIG announced a 1:20 split. The AIG owner who went to bed with 200 shares on one night woke up the next day with 10. Again, the market value of the investment is not changed but the stock now has a price that seems more “dignified”.  Radio Shack is struggling with this issue as we write this. RSH trades for under 10 cents.

When tracing securities holdings this can be important to know.  If husband held 20,000 shares of AIG when he married in 2006, how come he owns only 2,000 today? Dissipation? Transfer to another account to hide the asset. Sometimes a quick check at a website like StockSplitHistory.com can clarify this issue.  Some of the on-line market charts will actually reference a split on the chart. But most charts simply adjust the chart as if the split never occurred because it is the most efficient way to show changes in market price over time. We ran into this recently when a client received a securities account that was 10% lower than the date of trial value in a market that rose 3-5% over the corresponding period. As we examined this, two matters became clear. First, husband’s stock in Apple had undergone a 7:1 split in Summer, 2014 and his heavy reliance upon the future of Russian and oil based stocks had wiped out the gains his other investments had experienced.

There are several sites that provide information on stock splits. It is worthwhile to note this tool in valuing a marital estate.

A LESSON IN PAYING ATTENTION TO ESTATE DOCUMENTS & DESIGNATIONS

Posted in Divorce, Practice Issues

We were consulted recently by a personal representative of an estate concerning the decedent’s death beneficiary of his 401(K) retirement plan.  The decedent had married before ERISA became law, but executed a beneficiary form shortly afterward naming his then spouse.  Later he divorced that spouse with a property settlement agreement by which spouse waived all rights to his ERISA retirement.  The decree of divorce, naturally terminated her status as a spouse.  But the decedent never bothered to execute a beneficiary designation naming a substitute.  As the reader might suspect, decedent dies with his former wife’s name on the form he executed forty years earlier.

So, the personal representative (e.g., executor) makes claim on the pension as part of the decedent’s estate.  The surviving non-spouse intervenes to say “Not so fast, he named me.” Executor responds “You waived.”  Ex-wife says: “I waived the right to make a claim in an adverse proceeding, but decedent’s failure to act demonstrates that he intended to retain me as beneficiary since he knew of my waiver but never named anyone else including the estate.”

Our client had slightly different facts, but those recited above produced Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285.  The Supreme Court of the United States decided that case in 2009 and held that absent more, the failure to change beneficiary designations after divorce means the designations will remain effective despite the intervening severance of the marital relationship.  The Court’s unanimous ruling states succinctly that while ex-wife waived the right to claim benefits in an adversarial sense that waiver also afforded the decedent the right to name his estate or anyone else in substitution by completing a simple form.  His failure to do so must be given meaning in its own right, absent some document or instrument showing a different intent. Ironically, in this case, the decedent had named a different beneficiary for another ERISA qualified DuPont retirement plan.

Matter resolved, correct?  Well, the Estate of William Kensinger was not taking no as an answer. The facts were essentially the same as in Kennedy except that the Estate waited until the benefits were distributed and then sued to recover the funds on the theory that the waiver of interest in the property settlement was effective as a matter of contract law, even if it was not as a matter of federal pension law.  The District Court of New Jersey dismissed the suit, citing Kennedy, but the Third Circuit Court of Appeals reversed on the basis that Kennedy was intended to prevent pension plans from becoming adjudicators among retirement plan claimants. But it held that the once the plan was distributed, it was subject to claims. Estate of Kensinger v. URL, Inc. 674 F.3d 131 (3d Cir. 2012)

So, for now, the word to clients is, even if you do not draft an alternate estate plan, Pennsylvania law helps you by means of a statute holding that a divorce revokes testamentary provisions to someone who is rendered a former spouse by decree of divorce.  20 Pa.C.S. 2507.  But that protection does not extend to matters governed by federal law and ERISA based pensions are the creature of the Congress, not the General Assembly.  The corollary warning is to attorneys who need to tell their clients the importance of changing these designations where they are ERISA based.

 

Obergefell Fallout

Posted in Same Sex Marriage

Last month brought us the decision of the U.S. Supreme Court that same sex marriages need to be recognized. While this is a milestone in its own right, the devil is often in the details. Along the road to the Obergefell decision, states devised different legal mechanisms to permit same sex relationships. These included civil unions and domestic partnerships in addition to same sex marriage. While we now have the guidance that these relationships must be recognized, it is not clear how and when.  A Philadelphia case decided in June illustrates the point.

In June 2014, a couple joined by a civil union undertaken in Vermont in 2002 filed to dissolve that relationship by means of a divorce action. Both were residents of Philadelphia, They each filed consents to dissolution of what they properly termed their “civil union”.  Thereafter a praecipe to secure entry of the dissolution/divorce was filed.

On June 22, 2015, Philadelphia Judge Margaret T. Murphy signed an order dismissing the action citing Pa.R.C.P. 1920.1(a) which explicitly references divorce and annulment of marriage. The Order held that its jurisdiction was confined to the bonds of matrimony and did not extend to a civil union.

In a motion filed on July 17, the Plaintiff sought reconsideration. That motion noted the precedent of Morales v. Purcell  (June Term 2012 Case 3303), a December 2012 decision where the Judge Leon Tucker approved a settlement agreement between a same sex couple as part of the Court’s equity jurisdiction but declined to dissolve the civil union because Pennsylvania does not recognize civil unions. Judge Tucker based that ruling on Himmelberger v. Pa. Dept. of Revenue (In re Estate of Warnock) 2011 Pa. D & C. Dec LEXIS 565 (2011) aff’d 47 A.3d 160 (Pa. Cmwlth 2012).  Himmelberger involved a New Jersey civil union and a claim by the surviving party to be a spouse from whom no estate tax would be due at death. Citing the Marriage Act both the trial and Commonwealth Courts held that the statute required a couple to be of opposite sexes to claim a spousal tax benefit. That case was decided before  Whitewood v. Wolf knock out the heterosexual requirement of the Marriage Act in May 2014  (992 F.Supp. 2d 410, 424 (M.D. PA. 2014)

The reconsideration motion quotes from Obergefell’s holding that “there is no lawful basis for a state to refuse to recognize a lawful same sex marriage performed in another state on the ground of its same sex character. Slip at p. 28.  A subsidiary argument was that under the doctrine of comity, Pennsylvania should give effect to laws and judicial precedent of another state out of deference rather than duty. Smith v. Firemens Ins. Co. of Newark,  404 Pa. Super. 93, 99 (1991). (wherein Pennsylvania gave deference to New Jersey’s compulsory insurance law to afford protection to a Pennsylvania resident injured in New Jersey). The premise to comity is that the deference does not offend the law of the locality or its stated public policy. Comity has been applied in same sex custody cases to give standing in New York to a parent whose legal status as such arose through a Vermont civil union. Debra H. v. Janice R. 14 N.Y. 3d 576,601 (2010). It has also been cited to declare a marriage void in Massachusetts where there was a subsisting civil union formed in Vermont.  Elia-Warnken v. Warken  972 N.E. 2d 17, 36 (Mass. 2012). The Warken case expresses that a Vermont “civil union is the equivalent of marriage”

This will remain a challenging area, and one need recognize that couples the celebrated the ruling of last month may be trying to assert a different position if their relationship dissolves. But that is nothing new.  And does comity save the day? This is itself an interesting question in a world where the General Assembly has stated that marriage can only involve a man and woman but the federal court has ruled that this legal distinction is not legally permissible under the United State Constitution.

N.B.  I’m indebted to Helen Casale of Hangley Aronchick, LLP for securing a copy of the reconsideration motion.

A DIFFERENT TAKE ON OBERGEFELL

Posted in Same Sex Marriage

I just finished reading my partner Aaron Weems’ analysis on last week’s ruling by the U.S. Supreme Court that gay marriage is an institution meriting the respect of all fifty American states and not merely those which had endorsed the concept through referendum, legislative action or judicial fiat.

I use the word “fiat” with some measure because this was the basis for the dissenting opinions of Justices Scalia, Roberts, Thomas and Alito.  Unfortunately, the focus in the press has been on some of the intemperate language used in the dissenting opinions to take on the majority for declaring itself a kind of super legislature empowered to decide what society should approve and what it should not.  I write to say I find merit in this view and thought it best summarized in Justice Roberts’ comment that while advocates of gay marriage had reason to celebrate the ruling, defenders of the right of the people to speak through majority rule are shortchanged whenever the Courts decide that the legislature is not the final “say”.

I like that view but I must confess I like it in the abstract.  As I read the dissents I kept thinking about the 1954 decision in Brown v. Board of Education of Topeka Kansas.  In that case a unanimous Supreme Court ruled that the doctrine of separate but equal education of black Americans violated the clause of the 14th amendment declaring that all citizens of the United States are entitled to equal protection of the laws.  The Plaintiff’s in Brown effectively demonstrated that after 58 years, separate rarely if ever produced equal in public education, a fact perhaps most convincingly chronicled in Richard Kluger’s definitive history published in 1977, Simple Justice.  In 1954 there was an outcry that the Supreme Court had hijacked not only states rights but legislative democracy.  This contention is echoed in the dissenting opinions of Obergefell.  As a student of history, I am convinced that had the Brown court not pushed this change, the civil rights movement would have been a 100 year odyssey, if it had occurred at all.

Having contradicted my own argument, I hasten to recall some of the great questions posed during the argument of the Obergefell case earlier this year.  The question during argument that still resonates for me is whether courts have the right to abrogate polygamous marriages.  If the right to marry who you wish is a civil right, is there a reason why that right can be limited to only one person?

In the end, the point of examining the dissenting opinions is to better understand our tolerance for permitting courts to legislate sensitive issues like the one decided last week.  We have all seen, in recent years, that as the legislative branch eschews any controversy, more and more pressure is being applied to the judicial branch to decide issues like abortion, gun rights and legislative apportionment.  In one sense it can seem easy to accept rulings that decide things for us.  As Jason Sokol argues in his 2006 book, There Goes My Everything; White Southerners in the Age of Civil Rights after a rush to create separate private schools in the wake of Brown southern whites just as quickly abandoned that system and began to accept that change was inevitable.  But even though we might consider that result “right” there are elements of it that are inherently antidemocratic.  Recall Elizabeth Willing Powell’s question to Franklin at the close of the Constitutional Convention of 1787.  Asked what form of government the convention had adopted Franklin replied: “A republic, if you can keep it.”

 

CAN SOCIAL MEDIA SPEECH VIOLATE PROTECTION FROM ABUSE ORDERS

Posted in Protection from Abuse

I recently wrote a column for The Legal Intelligencier about the Supreme Court’s decision in the Elonis v. United States to overturn Elonis’ criminal conviction and forty-four month prison term for statements he made through social media about his estranged wife, shooting up a kindergarten class, and slicing the throat of an FBI agent who was sent to interview him about his kindergarten class attack statements. Suffice to say, the facts of the case are compelling, but the legal positions taken by the majority, concurring, and dissenting opinions make Elonis an important case to consider in the context of statements made over social media and the interpretation of those statements as threats by third parties.

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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.

SUPREME COURT: SAME-SEX MARRIAGE IS LEGAL EVERYWHERE

Posted in Same Sex Marriage

When the Supreme Court rendered their 5-4 ruling on June 26, 2015 in the same-sex marriage case Obergefell v. Hodges the Court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex which was lawfully entered into in another state. In doing so, the Court eliminated any ambiguity about the viability and legality of whether a marriage legally entered into in one state would be recognized in another. Closed was the loophole which caused some couples to have their valid marriage ignored in another state due to the state’s laws.

Obergefell bookends a volatile two years in the Federal Court system which began with the decision in United States v. Windsor which invalidated the federal definition of marriage in the Defense of Marriage Act and created, on the federal level, legal same-sex marriage for the purposes of taxes, benefits, and other federal-level issues. Less certain, at that time, was the effect it would have on the states’ own Defense of Marriage Acts since it was widely believed that marriage was a “state’s right” to define and carry out.

Pennsylvania had its own watershed moment in the decision of Whitewood v. Wolf in May 2014 when Pennsylvania’s state version of the Defense of Marriage Act was struck down. At that point, the same issues existed for Pennsylvanians as they did when the Windsor decision was issued: same-sex marriage was a right established within the state and Federally, to an extent, but beyond the confines of the Commonwealth and those other states who recognized same-sex marriages, questions remained as to their rights in the event of death, divorce, or child custody where one or both parties moved to a state which did not recognize same-sex marriage.  Even with the decision of Obergefell, Pennsylvania has not revised its statutory definition of marriage and, as highlighted by Gina Passarella of The Legal Intelligencier, other issues exist which require attention, such as legal custodial rights of people who use some forms of assisted reproduction.

The primary, practical take-away from the Obergefell case is that the Supreme Court has recognized an inalienable right of two consenting adults to marry, regardless of gender. The right to marry is a profound and important right and the Supreme Court now gives the power of the Equal Protection Clause of the Constitution to ensure that a legal marriage in one state is a legal marriage in another state. Couples no longer need to be concerned that they cannot, for instance, make medical decisions for their incapacitated spouse because the state does not recognize their marriage.
Obergefell is a profound civil rights decision in a court docket which saw several important decisions, including a decision preserving the viability of the Affordable Care Act (aka “Obamacare”). Though the Obergefell decision closes a chapter in American jurisprudence, there will be cases and more decisions which challenge and define the impact on Obergefell in other areas, namely areas of religious liberty. Those cases will likely never touch the decision establishing marriage as a right to all, regardless of gender or sexual orientation and, effective June 26, 2015, there is no need to add the clarifying adjective/noun combination to “marriage” anymore.

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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.

RAPE SURVIVOR CUSTODY BILL ONE STEP CLOSER TO LAW

Posted in Child Abuse, Custody, Support

In February we mentioned the introduction of a bill in the Pennsylvania state Senate which would allow the termination of a rapist’s parental rights, but preserve the victim’s (and state’s) ability to seek child support. The bill progressed through the Senate by unanimous vote recently and is now headed to the state House of Representatives for consideration. This was introduced by Republican Senator Randy Vulakovich of the 38th District (Allegheny Co.; Pittsburgh area) and is an important bill to protect the rights and dignity of rape survivors and their children. Though the number of cases this law impacts may be few in number, it should never be a possibility for even a single case. I expect this bill will be passed by the House and signed into law by Governor Wolf later this year.

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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.