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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

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.


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.”



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.


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.


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.


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.


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.


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.


Posted in Divorce, Same Sex Marriage

One of the consequences of legalizing same-sex marriage in Pennsylvania and elsewhere is that all of the old methods for getting around a same-sex marriage ban or lack of recognition of civil unions or domestic partnerships became obsolete or actual impediments to other legal actions under the new laws.  In what is easily one of the best examples of this form of unintended consequence is the case of Bill Novak and Norman MacArthur, two men in their late 70’s who have been a couple for more than fifty years and who have been, for the past fourteen years, father and son.

When they moved to Pennsylvania in the 1990’s, Pennsylvania’s same-sex marriage ban precluded recognition of their New York domestic partnership. They lose the state protections New York affords domestic partnerships, but still would not have had any Federal protections. Rather than risk not having legal protections of any kind related to their estates, accounts, or access to the other’s medical information, they took the step of having Mr. Novak legally adopt Mr. MacArthur as his son. The rationale was that in doing so, they established a familial status which could affect, among other things, estate taxes in the event of a death and next-of-kin status in the event of medical issues. In the absence of having those rights as a spouse, having the more limited rights of next-of-kin or child was the next best option.

Ironically enough, the legalization of same-sex marriage was not immediately available to him; a father cannot marry his son. So having taken the unusual step of adoption, they took the equally unusual step of asking the court to dissolve their adoption. Recently, Gary B. Gilman of the Bucks County Orphans’ Court granted their request to dissolve their adoption and cleared the way for their marriage. There is some public policy justification for not dissolving an adoption, since adoptions involve assuming the legal rights and obligations of being a parent. Mr. Novak and Mr. MacArthur’s situation, however, clearly demonstrated to the Court that an alternative, better form of legal protection is now available to them and overrides any public policy concerns related to dissolving the adoption.

I am sure there are other examples where the legalization of same-sex marriage and Federal court rulings have caused people in other domestic situations around the state to reexamine the steps they took to ensure certain legal protections and decide whether need to or want to use the tools available to them under the present laws. Certainly, the era of undertaking extraordinary and creative efforts to gain legal protections, such as adopting your partner, has passed.


Posted in Practice Issues, Same Sex Marriage

On April 29, the United States Supreme Court heard arguments in Obergefell v. Hodges.  This case addresses the question of whether there is a constitutional right to marry that transcends the historic power of states to regulate who can marry.  If you go to the website of the U.S. Supreme Court you can read and listen to the arguments including the questions posed by the justices.  It is an interesting argument once you get passed the first few minutes where there are a series of exchanges referencing older cases touching on the constitutional decisions.

But while we wait for a decision, the ground is already starting to shift in the world of employee benefits.  In recent years, many employers began to offer health care benefits to all “couples” regardless of whether their status had the title of marriage.  It creates problems because it requires the employer to define what is a “couple”.  For that reason most companies decided to restrict this benefit to gay couples only because they were ineligible to marry.

Obviously, much has changed.  Today 37 states have adopted some form of gay marriage or civil unions.  And complaints are being registered with human resource personnel along the lines of: “How is it that Samantha can cover her same sex significant other on her health benefits but I can’t cover my girlfriend of twenty years on our plan?”

Employers offered this coverage to same sex partners as a means of showing their progressive approach toward employee needs.  But now, what started as progressive has become divisive and employers don’t like it.  So, memos are starting to hit the desks of gay employees affording them a limited period of time to either marry their same sex partner or risk seeing the non-employees coverage terminated in states where same sex marriage and unions are now recognized.  As the Wall Street Journal reported on May 13, if the Supreme Court rules that there must be recognition of gay marriage or unions in all states, employers are going to be driven to insist that marriage or civil union is a condition for any form of spousal benefit.  Some concern has been expressed that this is forcing the gay employee to come “out” by making a public declaration of his relationship and therefore, his or her sexual orientation.

Another approach, as referenced above, is for the employer to attempt to define what constitutes a couple regardless of sexual orientation or marriage.  But needless to say, that is a slippery slope and ultimately leaves open questions such as when is a “relationship” formed, when is it over and how are these events defined as a matter of law.



Posted in Divorce, Practice Issues, Support

Recently the Superior Court considered a case in which a party died during the pendency of a support action. In the divorce case for Moser v. Ronald R. Renninger, et al., No. 1065 MDA 2014, the husband and wife were separated with the wife having filed for divorce and sought spousal support against the husband, receiving an interim support order of $394.10 per month plus arrears in an unspecified amount.

As an interim order, this matter was scheduled for an evidentiary hearing and designated complex which allowed the parties to conduct discovery (typically “simple” support cases do not permit discovery). Approximately two months after the interim order was entered, the husband died and, without having established grounds for the divorce, the divorce action and the husband’s estate filed a motion to terminate the support action and Support Order on the basis that without a divorce action, alimony pendente lite is not available to the wife.

While the wife agreed that the support obligation terminated upon the husband’s death, she argued that it is appropriate to apply a support order to the estate for the purposes of paying the accumulated arrearages. Basically, wife argues that she is a creditor to the estate.

At trial, the court found that wife could proceed with an arrearage-only spousal support case. On appeal, the estate asked the Superior Court to consider: 1) whether the failure to dismiss the support case is an error of law and an abuse of discretion; 2) that the record does not support finding that wife is entitled to receive spousal support; 3) error of law and abuse of discretion were committed in miscalculating (husband’s) income.

Though acknowledging that she was no longer eligible for APL, wife pursued her claim for a separately filed spousal support action and disputed that such action necessarily abates with husband’s death.  The Superior Court followed the reasoning of the trial court in finding that while a support order cannot be entered post-death, the interim order was valid and wife could continue her support action on the basis that a surviving spouse can collect unpaid support from the estate of the deceased spouse.

For the second issue, the estate attempts to argue that the husband had a defense to spousal support. Unlike APL which is a statutory entitlement to the dependent spouse, the payor in the spousal support case can offer defenses to the payee’s entitlement to spousal support. In this case, the estate points to trial court’s failure – in their opinion – to adequately consider a protection from abuse petition filed by husband and that wife voluntarily deserted husband.  The trial court, however, noted these events and cited that both parties filed PFA’s and both voluntarily withdrew them. Mutual allegations of abuse, the trial court reasoned, are inadequate defenses to a duty of support.  The Superior Court again sided with the trial court’s reasoning.

The final issue involves the calculation of husband’s income. The estate contends that the trial court improperly allowed evidence which was not authenticated and failed to consider the husband’s 2011 tax return. Basically, the estate objected to the introduction of PACSES records generated as part of the support conference on the basis that it is hearsay requiring authentication by the custodian of records. The support master found the information provided to be maintained by the Pennsylvania Department of Labor and reliable.

The trial court acknowledged the problem of authentication and that the record did not fall within an exception to hearsay evidence.  The Superior Court agreed with the trial court, however, they also cite the trial court’s reliance on corroborating evidence which established husband’s income and supported the records offered at the master’s hearing. So while an authentication and hearsay issued existed, it was not enough to justify remanding the case back to the trial court.

While the support case terminated, the wife remained a creditor to the estate. This case highlights a few issues, but the more important being that the death of a party without grounds having been established may not justify stopping all the actions in the case. Careful consideration must be made of what can abate and what requires the court’s review.



Posted in Divorce, Equitable Distribution, Practice Issues, Taxes

401(k) retirement plans are commonly divided in divorces by way of a Qualified Domestic Relations Order which prevents the transfer of the funds from the plan participants account to the other spouse from being a taxable event such as it would be if they simply withdrew money from the account. If you participate in a 401(k) plan then you are probably well aware that withdrawing money before you reach retirement age subjects you to a 10% penalty on the amount of money you withdrew and you have to pay income tax on the withdrawal.

For many divorce cases, however, the use of the 401(k) funds is a necessity for one or both of the parties. Recognizing the reality that people needed access to their accumulated retirement funds for legitimate and immediate financial purposes, the IRS created a mechanism for being able to utilize your 401(k) funds without having to pay the taxes or penalty on the withdrawals. A “hardship distribution” is defined by the IRS under Reg. § 1.401(k)-1(d)(3)(i) as an immediate and heavy financial need by the employee or the employee’s spouse or dependent with the withdrawal being a sufficient amount to satisfy the need.

The need to take a “hardship distribution” is not uncommon for many people involved in a divorce. Divorces can cause financial damage to both parties, but particularly the “dependent spouse” who may not have the cash flow or immediate resources to address an urgent financial need. It can also be a tool for the “independent spouse” who transferred a significant portion of their wealth to the other spouse. The award of 401(k) assets (if in the form of an IRA, the analysis changes somewhat) may be the financial resource they need to stabilize and rebuild their financial health. While any financial advisor would advise against using tax deferred money if it all possible, circumstances dictate otherwise at times and knowing this option exists may be helpful.


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.


Posted in Custody

Lowe v. Lowe 2015 Pa. Super. 35

On September 20, 2013 a Father files a Motion (sic) to Modify a Custody Order.  A hearing is scheduled that same day in Allegheny County on November 14.  Mother is pro se.  Father is represented.  The attorney for Father advised Mother that he was filing to adjourn the November hearing and would appear on October 30 to submit that request.  Father’s counsel does not appear at the October 30 preceding but simply phones the Court to tell them he was “pulling” his motion.  The Mother sat through the list that day and informed the Court at the end that she was waiting for Father’s attorney to present his motion.  As we might suspect she had taken time off to appear and Father’s attorney appears to have not advised her that he was abandoning his motion for continuance.

The trial judge was angered by this perceived act of rudeness and issued an order compelling Father to pay $500 in counsel fees to Mother within ten days.  Note:  Mother was pro se, so we start with a problem.  The problem is the Commonwealth Court’s ruling in Maurice A. Nernberg & Associates v. Coyne, 920 A.2d 967, 972 (2007) where that Court held that a remedy under Section 2503(7) of Title 42 for dilatory, obdurate or vexatious conduct does not include attorneys awards where attorney’s fees were not incurred.

The Superior Court next examines Pa. R.C.P. 1023.1(c).  This allows award of an “appropriate sanction” where an attorney or pro se party prosecutes or defends a petition, motion or pleading without a sound factual or legal basis.  The sanction may be imposed on parties or counsel but only after notice and opportunity to respond.  Note that the Court has the authority to undertake this proceeding on its own initiative. Pa. R.C.P. 1023.4.  But as a due process protection the Court must specify the conduct it deems offensive.  The sanctions are specified at Pa. R.C.P. 1024.  It includes striking all or that portion of the legal filing that was found spurious.  The Court may invoke a penalty payable to the Court.  And it may award legal fees directly related to the offensive conduct.

The trial court opinion offered that it had erred in terming the award “attorney’s fees”, as no attorney time had been expended by the pro se Mother.  But as the appellate panel notes, Mother made no written or oral motion for any award.  The Trial Court could have issued its own rule to show cause but the remedies at hand were sparse.  There was no pleading to strike (except perhaps the underlying motion to modify the custody).  There were no attorney’s fees incurred. So, we are left with a “penalty” payable to the Court.  And, based on the Superior Court ruling it appears they may be asking the Trial Court to explore Rule 1023.4(a) (2)(iii) and its cryptic reference to “other expenses incurred as a direct result of the violation.”

Is this an invitation for pro se Mother to present her lost wage and parking fee claims?  Not clear from the opinion but the case was remanded to permit either Mother or the Court to proceed under the direction of the rules.

The procedural history of this case underscores the problems inherent in the practice of many counties to handle matters through what is often called “business court.” Typically many counties set aside part of one day per week for all motions or petitions to be presented.  Most require that the opponent be afforded 72 hours or more of notice that the motion will be “presented”.  The basic utility of this worked in olden days because few litigants were pro se and in many counties most of the bar was either present or close by when business court was held. The hope was that by forcing an appearance, the lawyers would be rendered more “reasonable” and that many settlements would be made just outside the courtroom because the matter was about to be heard in some way.  But the alleged practice in this case highlights today’s new avalanche of pro se litigants.  Mother in this case took time off from work or may have paid for day care for the sole purpose of traveling to downtown Pittsburgh for what would likely have been a 1-3 minute “proceeding” to resolve a contested request for a continuance.  The request was never filed because Prothonotaries are typically instructed not to accept papers until a judge has entered a “rule to show cause” in the business court.  So when the opinion discusses the motion having been “pulled”, the truth is that it was never filed, a rampant problem that the appellate courts should address.  In this case, the appellate decision “reminds” Father’s attorney that a custody pleading cannot be withdrawn without leave of court or written consent of the parties.  Pa. R.C.P. 1915.3-1.  But Father’s attorney wasn’t attempting to withdraw his pleading; he was simply reneging on his representation that he was filing for a continuance.  Yes, there is some utility to be had in holding “business court.”  But, there is no “business” until a pleading, petition or motion is filed on the docket.  Ironically, the appellate court has remanded a case to the trial court to take up sanctions under Rule 1023 for a motion that was never filed.  See the opinion at footnote 3 and figure that one out.