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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

Discovery Master Programs Increase to Handle Volume of E-Discovery

Posted in Evidence, Practice Issues

6874479-3d-rendering-of-a-server-room-with-white-serversIn nearly every facet of litigation, the issue of electronic discovery and how to manage its production and review is becoming an important issue. This is no different in family law cases. Increasingly, individuals, businesses, and financial institutions are producing discovery via PDFs, hyperlinks to shared databases, and hard drives or cloud access.  The collection of data and record retention policy gives us access to millions of megabytes of data to download, sift through, and produce. The size of discovery productions in family law cases can at times rival or exceed that of more “traditional” litigation.

The pressure to handle these productions in a secure and ethical way has grown so great that my firm took the affirmative step some time ago to select my partner, Joshua Hummel, to chair our Electronic Discovery Practice Group. Josh’s group is tasked with planning and managing Fox Rothschild’s e-discovery compliance. Thanks to Josh and his staff, our firm is extremely capable of handling large scale e-discovery cases which might otherwise drown a litigation department.

The burden is not just on the attorneys and clients, either. The courts have become overrun with electronic discovery issues.  It is with this in mind that Courts throughout Pennsylvania have begun to set up special discovery master programs to deal with e-discovery and complex discovery cases.  As highlighted in an article in The Legal Intelligencer, many of the local Philadelphia courts, both state and federal, have adopted special masters.  Montgomery County has had private attorneys working as discovery masters for some time with Wendy Rothstein from my office serving as a master, while in Berks County, J. Benjamin Nevius of our Exton (Chester Co.) office appointed as a discovery master last fall.

The ultimate intent of a special master program – like with any court reform – is to speed up the litigation process and to deal with discovery issues efficiently and effectively.  As cases become increasingly based on e-discovery and the laws and rules regarding their production evolve, it will be up to the attorneys to help their clients manage the information and ensure a production compliant with the Discovery Rules is made.

(Photo Credit: 123rf.com; zentilia)

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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.

Superior Court Rules Against TV Personality & Affirms Reproductive Contracts

Posted in Custody, Practice Issues

My partner in Philadelphia, Julia Swain, recently published an article in the Philadelphia Bar Association Reporter (Page 15) addressing the case of television personality Sherri Shepherd and her attempts to invalidate a surrogacy contract between her, her husband, and their gestational carrier.

This was a case of first impression for Pennsylvania courts, pitting Shepherd’s estranged husband, Lamar Sally, and their gestational carrier against her to force acceptance of parentage of this baby. After Shepherd refused  to execute the documents to establish parentage upon the child’s birth, the gestational carrier initiated a suit to disclaim parentage in the Montgomery County Orphan’s Court – after all, the carrier executed surrogacy contracts which explicitly disclaimed any parental rights she might arguably have as the “birth parent” of the child; she was not signing up to raise the child or establish standing for custody or support.

Shepherd’s attempt to invalidate the surrogacy contract and avoid being the legal parent of the child included arguments at trial that parentage had to be established by biology or adoption and, having neither, was not the child’s parent. She also argued that surrogacy contracts are against Pennsylvania public policy (they are not); and that she signed the contracts under duress (a claim which was withdrawn after public statements of her excitement over being a parent were introduced into evidence).

The Superior Court rendered their decision in November 2015 upholding the trial court’s decision with President Judge Susan Peikes Gantman writing the opinion on behalf of the the three-judge panel. As an aside, Shepherd did not have the luck of the draw on her Superior Court panel: before going to the Bench, Judge Gantman was a well established and well-respected family law attorney. If there was any jurist qualified to consider this appeal and write its opinion, it was Judge Gantman.

Shepherd has since appealed the Superior Court’s decision to the Pennsylvania Supreme Court.

The Shepherd case is important for a variety of reasons: it helps update Pennsylvania’s case law as it applies to surrogacy and alternative forms of family planning; it also helps solidify the validity of contracts in this area to ensure that parties’ cannot easily renege on obligations or use the the threat of invalidation or abandonment of contractual obligations to leverage concessions from the other parent, and; that these contracts are not to be lightly entered into.

Ms. Shepherd committed to bringing a life into the world and should be held responsible for that commitment even if it proves incongruous with her life. Not to be overlooked, as well, is Mr. Sally’s pursuit of child support in their home state of California.

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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.

ADDING THE GEOLOGIST TO THE LAWYER’S LIST OF EXPERTS

Posted in Practice Issues

Twice a year, lawyers in Pennsylvania who specialize in family law convene to discuss developments in their field. At this year’s first meeting, just concluded in Lancaster, the Family Law Section of the Pennsylvania Bar Association heard from three experts concerning energy law and its impact on real estate.

Roughly a decade ago, hydraulic fracking came in Pennsylvania and began to radically change the energy industry and real estate values. Within five years it seemed that the Commonwealth was going to become a 21st century Texas.  As deposits of natural gas became to come on line by 2008, energy prices spiked to record highs.  Using crude oil prices as the benchmark oil reached $140 a barrel in 2008 but then dropped just as fast, then climbed from $40 a barrel back into the $80-110 range.  2014 saw another rapid decline in prices, falling first to $50 and then dropping to today’s price of $29 a barrel.

This precipitous decline has caused fits for energy producers prompting some to lose 2/3 or more of their market capitalization in the past two years. It has also slowed production and royalty income as well.  The result has created an impression that the shale gas boom was going into hibernation.

There is truth to this but as the experts presenting in Lancaster noted, the industry remains a fast evolving one. The return of the energy industry to Pennsylvania has not only prompted a revolution in technology.  Falling prices have forced geologists and engineers to think more creatively about what can be extracted and how most efficiently to accomplish that.  Today, the industry is looking beyond Marcellus shale to other forms of energy deposits.  Among those noted by Bud Shufstall, an energy attorney with Northwest Savings Bank is a return to the original oil fields discovered in the 1860s with a process that extracts oil deposits which heretofore could not be recovered.

A couple of points seem clear. Energy producers are evolving in terms of what mineral and gas deposits they want and how they may be extracted.  Pennsylvania law on this subject which evolved from 1870-1920 and then was largely ignored for almost a century is now being revived to address new technologies.  Family lawyers trying to dabble in this field do so at their peril because they may be focusing on both the wrong form of subsurface deposit as well as the wrong form of agreement to address what lies below the surface.

The divorce law itself has not formally addressed these subjects. The consensus of the experts, including Brandon Otis, a valuations expert from BDO Seidman and Taunya Rosenbloom, an energy attorney in Athens, PA was that a subsurface deposit for which there was no technological means of extraction had no value until the technology changed that.  But that conclusion may be subject to challenge in a judicial setting.  Then there is the problem confronting Mr. Otis of trying to put a value on what lies below in a world where natural gas prices have fallen 25% in the past 11 weeks.  Prices may be depressed but one thing is emphatically clear.  Pennsylvania is the second largest producer of natural gas in the United States and it is going to remain a focal point of energy production for many years to come.  Those substances trapped below ground are going to be valued and divided whenever there are marital rumblings of the people who live above ground.  Doing it correctly is no easy task.

A CHANGE IN THE CUSTODY RULES EFFECTIVE 1/1/16

Posted in Custody, Practice Issues

Not a big change but effective with the New Year, the filing of a pre-trial statement identifying witnesses for a custody proceeding is, by itself, a certification that the attorney actually spoke to the witnesses listed. The explanatory comment does not tell us much about the origin of the rule, but some litigants like to profess that they are bringing the “world” to testify in a custody proceeding but then that list drops quickly as the day of trial approaches.  Note the certification is not one that you intend to call all of your listed witnesses; only that you at least spoke with them before putting their names in the pretrial statement.  The amendment is Rule 1915.4-4.  It was issued on October 28, 2015.

SUPREME COURT DECIDES WHEN RULING ON STANDING IS APPEALABLE

Posted in Adoption, Custody

In our haste to report on last week’s Pennsylvania Supreme Court case on support duties of non-parents, we overlooked another case decided on December 21, clarifying when an order conferring standing on a party in a custody case becomes appealable.

“Standing” is the legal term for the right to be a party in a lawsuit. The kid next door may be cute but that doesn’t give me the right to seek custody of him just because I would be a better parent.  There has to be a recognized legal nexus between the natural or adoptive parents of a child and the right of some non-parent to claim custodial rights.

The case we last reported on offers a good example. The Serbian father of the children was no longer involved once the children arrived in America and birth mother married step-father.  Step-father took on the role of parent for several years and when that relationship ended step-father stepped forward and asserted that because he had acted as a parent, he had the rights of a parent.  The Supreme Court of Pennsylvania offered no comment on whether this gentleman was or wasn’t a substitute parent, but faced with a lower court decision awarding him joint legal and physical custody of the children, they decided he was eligible to pay child support for children he had half the time.

K.C. and V.C. v. L.A. is a little different. The defendant is the natural mother of L.A., who was born in 2011.  The natural parents did not do so well and a child welfare agency in Northampton County sought to have L.A. declared dependent, meaning that the child was not having basic needs met by the biological parents.  The agency secured an award of physical custody and then placed the child with a maternal aunt of the mother and a friend with whom the maternal aunt resided.  In Spring, 2013 the Court vacated the dependency placement and awarded custody to the biological father.  The aunt and her friend were given partial physical custody of the child on alternate weekends.  The Father lived with his own mother and her current husband.

Two months after being awarded custody and when the child was only 18 months old, the natural father passed away. The decedent’s mother and her husband filed to assume custody.  At that point the child had been with them for nine months although they were not part of the custody order, as Father was the actual person awarded custody.  The maternal aunt and friend filed a claim of their own noting that they had physical custody of the child for seven months under the aegis of the dependency finding. Typically when a child is found dependent as L.A. was, the agency is awarded legal and physical custody subject to their right to place the child wherever the agency deems suitable.

When aunt and friend filed to intervene, the deceased Father’s mother and her current husband objected noting that the only custody maternal aunt and friend had was under the dependency award. In other words, no court had deemed them to be fit parents. They were merely the choice placement of the agency that had taken the children away from the natural parents because basic needs were not met.

The request of aunt and friend to intervene was denied by the trial court. We don’t have that decision, but typically, the placement of a very young child with a maternal aunt is not any more than a convenience for agencies that are overwhelmed with demands just like these.  The argument of the agency goes: “Look your honor, the child is two months old and the natural parents are not getting the job done.  We don’t have a lot of places to send a two month old child and the maternal aunt and her friend seem able and sincere and we will keep an eye on them while we try to correct the problems that forced us to take the child away from his/her natural parents.” In this case, natural Father seems to have stepped up to the plate and ended up with primary custody.  Unfortunately, he died almost immediately after he won custody.

The request of aunt and friend for “standing” to try to resume custody in the wake of natural father’s death being denied, the aunt and friend filed an appeal. The Superior Court quashed (i.e., dismissed) the appeal because it was not a final adjudication of the custody action brought by paternal grandmother and her husband.  The Superior Court ruling had a precedential foundation.  It has long been the law that appeals from custody orders must relate to orders that “dispose of all claims.”  See G.B. v. M.M.B. 670 A.2d 714 (Pa. Super. 1996).  The goal here is to avoid piecemeal disposition of custody claims on appeal.

Aunt and friend were not taking no for an answer. After all, they had physical custody of L.A. for seven months and Father (while resident with his mother and stepfather) had custody for perhaps nine months.

While the basic premise of appellate rules is to not decide cases piecemeal, a large body of law has evolved concerning what are termed “collateral orders”. These are orders which do not dispose of the whole case but which may change the course of the entire litigation.  In this case, paternal grandmother was seeking custody premised upon the rights awarded to her deceased son.  Her son held those rights for nine months before he died.  The parties who had physical custody of the child for the preceding seven months asserted that they should have custody and the Superior Court said they could not even make a case.

In an opinion authored by Madame Justice Todd, the Court notes that the prevailing public policy is to avoid appellate review of cases before they have been fully decided. But, the exception to that rule is invoked where failure to permit the appeal effectively “kills” the case.  In a unanimous opinion, the Supreme Court finds that dismissal of aunt and friend’s claim was appealable because the dismissal “killed” the case.  In effect, natural Father being dead and natural mother otherwise “absent without leave” (AWOL) there were effectively only two real contestants for this infant child; the paternal grandmother whose rights arose purely from the fact that the natural father lived with her when he secured custody and the aunt whose right to custody was also “derived” from the decision of the Office of Children and Youth to place the child awarded to them with the aunt.

Unless granted the right to intervene, the aunt and her friend asserted that the petition of paternal grandmother and her husband would never be contested because there was no one with standing to contest it except for the absent natural mother. The appellants had enjoyed custody for seven months. The paternal grandmother had never had custody.  The child was awarded to her son who happened to be resident with her when he got custody and when he died.

The Supreme Court decided that (a) the order putting the aunt and friend out of court was severable from the rest of the custody case because there was no one else who sought custody and (b) any claims they might have asserted were lost because they can’t appeal from a custody order to which they were never afforded the status of parties. The Court distinguishes this from other civil orders affecting standing because there is an important and immediate impact on children.  In particular it cites In re Barnes Foundation, 871 A.2d 792 (Pa. 2005) where the Court held that the intervenors lost their right to appeal the final decision because they had not preserved an appeal on the issue of intervention.  The Court reasoned that while Barnes does not involve an issue as prescient as child custody, the principle of early intervention is all the more important where children are involved.

So the principle is clear. If a party seeking custodial rights is denied the opportunity to participate, the appeal is collateral and must be taken within thirty days of the date the order denying intervention or standing is entered.  The applicable rule is Pa. R.A.P. 313.

But let’s also consider the collateral impact of the collateral appeal doctrine with an eye cast in the direction of the announced goal of affording child custody decisions a “fast track” for disposition. The subject child was born in December, 2011.  The child is placed with aunt and friend in February, 2012.  In September, 2012, Father secures shared custody.  In April 2013, the child is awarded to Father.  He dies. In June, 2013 his mother files to be custodian.  Later that month aunt and friend file to intervene.  It takes more than 18 months for the trial court to decide that the intervention should be denied.  In 90 days, the Superior Court quashes the appeal.  The Petition for Allowance had to have been filed in April-May 2015, if timely.  The case is reported as “submitted” on October 21 and was disposed of with opinion by the Supreme Court in 60 days.  So, effectively from June 6, 2013 (date of primary custodian’s death) until December, 2015, the life of a then 18 month old child is in limbo.  That’s 31 months to decide that the folks who had physical custody for seven months did have standing to challenge the custody action of the folks who had physical custody for nine months.  We have written law telling us that these matters need to be expedited.  But this child lost a father at 18 months and still doesn’t know where he will live almost three years after father died.  The appellate process through two such courts consumed a little more than 8 months.  But it took the trial court an extraordinary eighteen months to decide whether aunt and friend had standing.  Query, if you are the trial judge on remand and looking at the factors explicated in the custody statute, does the 2.5 year status quo since father died count as a stability factor for a child whose life was little more than a series of disruptions prior to Father’s death. Under a pure “best interests” analysis that would seem to be true.  But, in a world where fairness is also a factor at some level, does the belated and ultimately erroneous ruling of the trial and Superior Courts count against the prevailing party in the subsequent proceedings?  In this case, it is difficult to justify eighteen months to decide whether a party has standing.  That delay created a status that will be difficult to undo unless the paternal grandmother and spouse have completely dropped the proverbial custodial ball.  On this record, they will defend a case against another set of claimants (aunt and friend) who have not so much as seen the subject child since April, 2013.  That amounts to 31 of the 48 months young L.A. has been alive.

STEP-PARENTS ASSERTING CUSTODY NEED TO READ THIS BEFORE THEY FILE

Posted in Custody, Support

In a year when there have been relatively few published opinions and few of those offering much precedential value, the year ends with an important ruling by the Pennsylvania Supreme Court.

The question in A.S. v. I.S. (8 MAP 2015) revolved around the matter of when a step-parent can owe child support.  In this case, a mother gave birth to children in Serbia in 1998 and later married the Defendant. Together they brought the children to America and the Serbian father of the children lost contact by 2006.  In 2009 Mother and step-father separated.  In July 2012 Mother expressed an intention to move to California.  Step-father filed to prevent that asserting that he was in loco parentis (in the place of a parent) and as such had custody rights under the statute governing standing.  Standing was sustained and the custody case concluded with the parents being awarded shared legal and physical custody of the children.  No doubt chastened by having her plans to relocate foiled, Mother filed an action for support to which step-father objected stating that his position in loco parentis did not imply a financial duty to the children.

Father’s position was sustained by both the trial and Superior Courts. Mother petitioned the Supreme Court to hear the matter and review was granted.

The 3-1-1 decision issued on December 29, 2015 does not establish a bright line test. Fundamentally, it sustains the view found in Com. ex rel McNutt. v. McNutt that step-parents are not generally liable to support children who are neither their progeny nor their adopted children. 496 A.2d 816,817 (Pa. Super. 1985).  See also DeNomme v. DeNomme, 544 A.2d 63,65 (Pa. Super. 1988)   It also approves the holding in Drawbaugh v. Drawbaugh, holding that assertion of “minimal” continuing contact with a step-child does not trigger a duty of support. 647 A, 240,242-3 (Pa. Super. 1994).

But here, step-father’s action to prevent mother’s relocation and his pursuit of shared legal and physical custody was enough to upset the general rule.

Noting that this case was analogous to L.S.K. v. H.A.N., 813 A.2d  872 and Fish v. Behers, 741 A.2d 721 (Pa. 1999) which dealt with facts giving rise to a form of equitable estoppel, Justice Baer writes that where a party assertively hold himself out as a child’s parent, that party may be held to the correlative duties of a parent.  He notes that step-father in this case assumed and vigorously pursued parental duties in trying to halt the relocation and in pursuing shared custody.

As noted, this is not a bright line test. One can read the majority language in page 13 of the opinion as holding that a step-parent may cross the “support” line by invoking judicial remedies of any kind.  Such an interpretation appears to be inconsistent with Drawbaugh. So finding the line where support may be due from a step-parent may not be easy but it seems clear from this case that stopping relocation and then securing shared custody is “enough.”

The opinion does also present a conundrum of sorts. The parties separated in 2009.  Step-father filed for divorce in 2010.  His complaint for custody was not filed until 2012.  All we are offered about the period between the 2009 separation date and the 2012 filing date is that the parties “informally shared custody of the children.”  We don’t know what that three year “sharing” involved in a physical sense and that prompts the question of how soon after a separation must a step-parent act to assert in loco parentis before he or she loses that status. Alternatively, what kind of sharing effectively “tolls” any temporal limitation?  In an age when serial live in relationships without benefits of marriage are increasingly the “norm”, can Boyfriend 1 sue for custodial rights when mother and child now reside with Boyfriend 3.

WHEN IS AN ALIMONY MODIFICATION AN AGREEMENT AND WHEN IS IT NOT.

Posted in Alimony, Divorce, Support

On October 5th of this year, the Superior Court disposed of an alimony modification request that was decided by the trial court in October, 2014.  The facts and the ruling present a tale of how divorce practitioners need to pay heed to language when modifying an order of alimony.

Egan v. Egan, 2015 Pa. Super. 2013 was decided in Montgomery County, Pennsylvania but began as a divorce in Montgomery County, Maryland.  In 2002, the Maryland Court issued a divorce decree with an alimony order providing for one year of alimony at $4,000 per month and then alimony of $3,000 per month “thereafter.”   In 2004 the former husband filed to register the alimony award in Montgomery County, Pennsylvania and in April 2005, the parties formed a stipulation that transferred both the alimony and child support to Pennsylvania.  The Pennsylvania order made several modifications to alimony, child support and arrearages.  The Pennsylvania Order contained a provision that should father succeed in reducing his child support, his alimony obligation would have a corresponding increase.  We have seen these kinds of arrangements in agreements for many years, but this is the first time we have seen this discussed in an appellate case.  If Father petitioned to decrease child support, the agreed upon increase in alimony was also to render the revised alimony number, non-modifiable.  This agreement was made an order of court in April, 2005 in Pennsylvania.

In February, 2013 Husband/Father filed in Pennsylvania to modify the alimony.  Wife/Mother countered that the alimony was non-modifiable because what was submitted in 2005 was a stipulation or “agreement”.  In a ruling made without a hearing, the trial court ruled as a matter of law that the 2005 document was an agreement under Section 3105 of the Divorce Code and therefor was not subject to modification.  It also held a hearing on Wife’s counterclaim and held Husband in contempt for failure to comply with the 2005 stipulation.  Husband or rather ex-husband appealed.

Because the Maryland divorce decree mandated payment of indefinite alimony, it appears that the Pennsylvania court viewed the alimony award as modifiable as registered here in 2004.  But the “agreement” to modify the alimony and child support provisions of the Maryland decree after registration in Pennsylvania was “agreed”.  The Superior Court ruling is a determination that in resolving the modification of alimony by “agreement”, the parties took an order that otherwise was subject to modification under Section 3701(e) and converted it to an agreement under Section 3105(c).

Section 3105 (c) states that an agreement regarding disposition of existing alimony shall not be subject to modification absent “a specific provision to the contrary.”  In this case, husband argued that Section 3105 governed only those cases where there was a comprehensive agreement.  The Superior Court rejected the argument that agreements under Section 3105 need to be comprehensive, holding instead that if he wanted his 2015 modification to continue to permit further modification, that language needed to be written into the modification instrument.  His argument that alimony was modifiable because he never did seek a modification in child support was rejected for similar reasons.  By reaching the agreement embodied in the 2005 stipulation, husband took an otherwise modifiable alimony order and transformed it into a non-modifiable agreement.

The opinion discussed at length the policy reasons behind the difference in modifiability between Court ordered and agreed alimony.  In a word, the view expressed is that parties to an agreement understand that non-modifiable alimony under Section 3105 is a fundamentally different animal than agreed alimony under Section 3105, and that the parties have to understand that when they negotiate agreements.

The net of the ruling is that a party seeking to modify judicially ordered alimony needs to understand that unless the right to modify again is clearly enunciated, the right is lost where an agreement is reached.  This might be said to have a chilling effect upon such agreements, but the Superior Court found the statutes in controversy to be unambiguous.  It also found the argument that the unmodifiable alimony obligation was onerous (62% of payor’s net monthly income) to be unworthy of consideration.

To the practitioner, the lesson is to draft alimony modifications with great care. To the layperson, the lesson is, do not try to modify your own alimony orders without someone with experience looking at your modification documents.

 

 

DIVORCE AND ADULT CHILDREN: THE 12TH PLAYERS ON THE FIELD

Posted in Divorce

In April, 2014 the Federal Reserve Bank in St. Louis published a monograph on financial status of older Americans.  It corroborated a trend that has been evolving for several decades. Beginning with the advent of Social Security old Americans began for the first time to preserve and in many cases grow their net worth in retirement where historically, they had become dependent on their children for financial support as their earning years ended.

The Fed study reported on data last compiled in 2010 and found that by 2010, the median wealth of older age groups (ages 70+) were more than twice as large as the median wealth of a middle-aged family (ages 40-61) and close to 20 times as large as the median wealth of a young family (under 40).  What made this data all the more startling was that it came just after a major economic downturn which typically would be expected to hit older investors harder than middle and younger aged income earners.

Another interesting piece of datum comes from the Center for Disease Control and was published in an article about “graying divorce” published by the Washington Post on October 8 2014. The CDC statistics tracked divorce filings between 1990 and 2012 among various age groups. Among those aged 34 and younger, the rate of divorce actually declined over 20 years. Among those over 34-45 it rose slightly. But once we look at folks over 45 the rates have doubled. And yes, this was true for even those aged 65 and older where a length marriage was once considered a sign of stability today more than half the divorce filings are by individuals who have been married 20 or more years.

While, there is no direct correlation to be had from these facts, as practitioners we see a developing trend. In a word, old people have money that young people do not. Younger people perceive that their parents and grandparents don’t really need a lot of the money they have. So when mom and dad find that their marriage is no longer working for them, a growing number of younger Americans are insinuating themselves into the economics of their parents’ divorces. A generation ago, children typically became involved in providing emotional support to one parent to allow him or her to “stand up” to the spouse. Today, children appear to have their own agenda; whether it is private school/college for their children or to finance a business or some other project. In some situations we have had clients express fear that access to their grandchildren may become a bargaining chip if the divorce does not proceed as the adult children would like. This makes an emotionally tense world, doubly so. Much as the first World War began, once one adult child decides to become a participant in a parent’s divorce, siblings tends to wade in either to thwart that child’s agenda or to introduce one of their own. Then the acrimony really heats up with accusations like: “Mom never worked so how is it that she is entitled to so much of Dad’s money” and “There would be more to divide if you hadn’t spent an extra year getting your degree and spent a month in rehab.”

If you are an adult child of a parent getting a divorce, perhaps there should be a neutrality compact early on. And if you are the mature adult getting a divorce, it may make sense to agree with your spouse that adult children are not invited to the party. It’s bad enough going through a divorce without bringing the entire family through it with you.

International Custody Disputes

Posted in Custody

Thanks to our partner, Leslie Spoltore, in Delaware, we have a consolidated blog entry for our previous articles on international custody. The Hague Conventions on child custody can be difficult to navigate and we are fortunate to have attorneys with experience dealing with them. It is important to remember that travel to a signatory county of a Hague Convention does not mean the country has ratified the convention as a treaty. If you think that you may have a custody issue arising elsewhere in the world, consult with an attorney immediately since timing often becomes a critical element to success.

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

Same-Sex Common Law Marriage Declared in Bucks County Case

Posted in Same Sex Marriage, Taxes

Up until about two years ago, a good portion of questions which came through this blog were questions about common-law marriage. Usually, it was someone asking whether or not they had a common law marriage and if so/if not, what they needed to do to dissolve it or enforce it.

I felt bad for many of those people who described facts in which a long-term relationship abruptly ended or the need to be designated as a spouse to receive medical benefits. Often, their facts simply did not describe the criteria for a common law marriage under Pennsylvania law before it was abolished in 2004. The one critical factor always seemed to be lack of any specific intent to be considered “married” by the parties.

An interesting case out of Bucks County, however, recently applied common law marriage to a same-sex couple even though one of the partners was dead. The Honorable Theodore Fritsch Jr. granted the request of Sabrina Mauer to have her twelve year relationship with Kimberly Underwood declared a common law marriage. Ms. Maurer cited their 2001 New Jersey commitment ceremony as indicia of their intent to be married.

Ms. Mauer brought the Bucks County action after Ms. Underwood passed away in November 2013.  Since then she’s been refused certain spousal benefits and is required to pay inheritance taxes on Underwood’s estate; issues which, ironically, are nearly identical to those raised by Edith Winsor in the seminal same-sex marriage case, United States v. Windsor.

Judge Fritsch found the marriage valid back to the date of their New Jersey commitment ceremony. An article by Gina Passarella of The Legal Intellgencier quotes the Order as stating, “[their] marriage is valid and enforceable, and they are entitled to all rights and privileges of validly licensed, married spouses in all respects under the laws of the commonwealth of Pennsylvania.” Ms. Passarella also identifies that of the several governmental agencies which were put on notice of the action, none appeared to contest the case; the Department of Revenue sought more time to respond before opting not to take a position which, in such cases, is very much a position.

Prior to civil unions, domestic partnerships, and, eventually, marriage, exchanging rings and having a commitment ceremony before friends and family was perhaps the only symbolic way a same-sex couple could celebrate a commitment to each other.  This case proves that what was once a symbol, without any legal import in 2001, can ironically fulfill in 2015 the elusive element of common law marriage by demonstrating a public or cognizable intent of the parties to be married.

Unaddressed in the judge’s order or the article is the consideration of whether or not the timing of the entire relationship factored into the decision. Ms. Mauer’s common law marriage began in 2001 before the 2004 abolition of common law marriage and ended upon Ms. Underwood’s death in November 2013 – four or five months after Windsor essentially legalized same-sex marriage. Any common law marriage must be deemed to have been entered into before January 1, 2005; less certain is whether the relationship had to continue through the Windsor decision to be a valid common law marriage. If Ms. Underwood had passed away in 2012, would it have changed the outcome? Perhaps, it would. It may take other same-sex couples or widow/ers to raise this issue, but Judge Fritsch’s decision undoubtedly opens the door for such questions to be considered.

(Photo credit: 123rf.com; Jens Tandler)

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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.