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

I blogged last week about an article in the Philadelphia Inquirer that discussed a study that said it was good for your blood pressure to be in a healthy marriage.

Today CNN reported on a study that shows that one way to reduce your risk of death is to argue with your spouse.  Obviously, I'm being a little facetious, but the study looked at 192 couples over a period of more than 15 years, and concluded that spouses "who kept their anger in when unfairly attacked did not live as long as those who expressed their anger". 

The key is communication.  I am often asked what I believe is the main cause for couples divorcing, and the expected answer always is adultery.  But having practiced for 20 years, I really believe that the most common cause for divorce is a lack of communication.  People just don't talk about the issues, let them fester, and then spiral downward into divorce. 

Now there's a study that says divorce may not be the worst thing that happens to you if you don't express your feelings to your spouse.

The full article can be found if you click here.

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How people managed their money during the marriage often effects their respective views on how they should resolve their economic differences during the divorce.  If one party controlled the money during the marriage, then he or she is likely to want to control its disposition in the divorce. 

For example, if a Husband views himself as the bread winner during the marriage and views Wife as “only” the custodian of the children or the “keeper of the house” (and, therefore, undeserving), he may want to retain control of the monies in the divorce and view the Wife as an unentitled or undeserving partner. 

Another scenario is where a Wife who had substantial monies from an inheritance or gifts from her parents and who supported her Husband and “their” lifestyle during the marriage – why, in a divorce, should she share any of her monies with “HIM”. 

It is always about the money! 

If not, it’s about control. And, control often involves “who holds the purse strings”. 

It is possible that our economy is headed into a recession.  No one knows how severe it may be.  However, divorce lawyers know that when economic times get bad, it is much more difficult to resolve economic issues. Why?  Because, while it always is more expensive to support two households after a divorce, in economically depressed times there are even less resources available to smooth out the economic fissures in a marriage where money was plentiful and covered over the cracks in the relationship. 

Further, this may be compounded when there is a business involved, since the valuation of the business will be depressed in a economy like the one we are experiencingnow. 

Who gets what and how much is central stage.  Money does matter.

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In December, 2007 I blogged on the issue of having a child through surrogacy or adoption. In that blog, I noted that the time in which biological parents can challenge their consent to adoption is quite long in Pennsylvania. Recently, the Pennsylvania Superior Court issued a new opinion which shortens the time period by interpreting the law in a stricter fashion. This latest look at existing Pennsylvania adoption law requires all challenges, except for fraud and/or duress, to be made by the biological parents within 30 days of their signing a consent to adoption. There is no exception for technical errors in the drafting of the consent. Further, any challenge to the Consent because of fraud or duress must be made within 60 days. If courts strictly construe these time frames, as the Superior Court now has done, Pennsylvania adoptions will not be challenged as much as they once were.

These concerns arise in private adoptions much more frequently than in agency adoptions. However, it is still true that the overwhelming majority of all adoptions proceed without any problems. 

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Whenever people start to think about divorce, they think about all the money they have—or don’t have—and why their spouse should or should not get any of it. Many of our firm’s blog entries, as well as those on other sites, discuss specific assets or they discuss why people may not get what they think is fair. If you understand the reasoning behind the rules (written by legislators far, far away) what may happen to you makes a bit more sense.

The first idea to grasp is that marriage is a legal partnership. No matter if both spouses work, both are unemployed, or only one works, this partnership arose on the day of the wedding and will end at death or the filing of a divorce Complaint. Because both husband and wife (or both partners in some states) are equal, whatever is earned or saved during the marriage belongs to both of them.

For example, if one married partner earns $100,000 per year and from that amount saves $30,000, all the money saved is marital. It belongs to both partners (as does all of the money earned). If the other partner earns $25,000 per year and uses all or almost all of that money to pay the mortgage on the couple’s condo, all that money and the couple’s condo are marital.

There are exceptions. Anything that is owned before the marriage takes place is not marital. But in Pennsylvania, the increase in value of the non-marital asset from date of marriage until date of filing of the Complaint in Divorce belongs to both spouses. So too, the increase in value of a business that was started before marriage, or the increase in value of one partner’s Picasso which she inherited from her mother. Because the marriage is a partnership, Pennsylvania will view any increase in value during that partnership as belonging to both spouses , no matter whether the increase during marriage is passive (it earned interest in the bank) or active (a spouse grew the money by cleaning up and re-modeling an investment property). How the asset is titled does not matter. The $5 million Picasso may belong to one partner if she inherited it, but all of the increase belongs to both of them. So if it was worth $5 million on the date of marriage, and now it is worth $7 million, $2 million will be divided between the spouses

This is why it does not matter in Pennsylvania if the asset is owned only in one person’s name, which always is the case with retirement benefits. You must look at when the money or the asset was acquired or grew. If it was during your marriage, each of you has the right to some of that money!

The other thing you need to know is that there is the concept of an understood agreement during marriage. Let’s take a look at that spouse who earns $100,000 per year. The parties agreed that he would put $30,000 each year into her 401K. Even without the agreement , it is marital. But they never agreed that she could use $1,000 a month to go shopping with her girlfriends. However, for the past 17 years, she has been doing so. When her partner wants to end the marriage, that $12,000 per year she spent shopping becomes disputed. However, the law presumes that this was agreed to. Remember the partnership idea? If one of the partners did not like the arrangement, they could have liquidated the partnership (divorced). 

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Although not really related to the practice of domestic relations law, I read an article in the Philadelphia Inquirer on March 21, 2008 that reported on a study  conducted with respect to the effect of a good marriage on blood pressure.  The results were that happily married people had the lowest blood pressure, followed by single people.  However, those in a stressful marriage brought up the rear.  It was not a huge study (204 married people and 99 single adults), but interesting nonetheless.

Click here to read the full article in the Philadelphia Inquirer.

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As practitioners, clients often ask us about filing for a "Legal Separation". While Pennsylvania does recognize the term, the "factual" date of separation may be important in valuing assets (non-marital assets are generally valued from date of marriage to date of separation) and for setting the date for when the grounds for a divorce may exist . So, what determines the "date of separation"?

The date of separation is the date upon which it is determined that the parties are living “separate and apart”.  23 Pa.C.S.A. § 3103 defines "separate and apart" as "the cessation of cohabitation, whether living in the same residence or not.  In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served".  

Cohabitation is defined as the "mutual assumption of those rights and duties attendant to the right of husband and wife".  Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988). 

When the parties are physically separate, they generally will agree on the date of  separation. However, when the parties reside in the same residence and no divorce complaint has been filed, the court can still determine that the parties live separate and apart. To do so, the courts, on a case-by-case basis, look at some of the following to determine whether parties have been living "separate and apart":

The "spouses' intent to dissolve the marital relationship must be clearly manifested and communicated to the other spouse, before the spouses can begin to live 'separate and apart'".  Sinha v. Sinha, 526 A.2d 765 (Pa. 1987)

Some factors which have been considered in determining the parties' intent have been:

1. How much time the parties spent at the marital residence.
2. Whether the parties slept in the same room.
3. Whether the parties ate meals together.
4. Whether or not the parties took vacations and outings together and whether or not those outings were for the child's benefit only.
5. Whether or not the parties gave the appearance that everything was fine for their child's sake.
6. Whether the parties lived separate lives. 
7. Whether the parties had sexual relations.

Frey v Frey, 821 A.2d 623 (Pa. Super. 2003).  See also Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988).

It is important to advise your clients regarding the date of separation if there are non-marital assets or if the other party will not consent to the divorce.  If you want to make the date of separation clear, the best way to do so is by filing the divorce complaint.

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Historically, we have often been asked about the valuation of jewelry and coins as part of the equitable distribution process. This has never been a very interesting topic over the years as, in most cases, the mark-up on these personal effects is so high that there is often very little value left after the appraiser finishes charging his or her fee. In particular, with the average $500-$1000 piece of jewelry, it is not uncommon for the mark-up to be 10x the wholesale price of the piece involved. This is reflected in a classic dilemma. Take grandpa’s pocket watch to the appraiser for an insurance appraisal and it may be valued at $1,500. Ask the same jeweler for a quote to buy it, and the number could be one-third or less of the insurance value.

This general conclusion is shifting beneath us and merits some further consideration because of recent trends in commodity prices. Gold as a commodity has historically traded in the $300-$400 per ounce range. It remained in that window from January, 2000 pretty much through July, 2004. Since that date the rise in the price of the commodity started upward marching to $600 an ounce by July, 2006. For the next year, it traded in the $600-700 range. But since that date it has taken off to where it trades at more than $1,000 per ounce as this article is written.

Silver and platinum have risen even more precipitously. Silver was the stepchild of the commodities business since the 1980s when the Hunt Family in Texas tried to corner the market and failed. It remained in the $6.00 per ounce range for almost 20 years. But January, 2004 marked a turning point. Silver shifted into a $6.00-8.00 commodity. And two years later in January, 2006, it began a long steep rise that takes it to its current value of $20.42 (3/14/08). Platinum worked in a $400-600 an ounce range from the early 1990s through 2002. But with the arrival to 2003 it rose very steadily to $1300 an ounce by the third quarter of 2007. Since that time, the metal has rocketed off the chart to $2,150 today. That would yield an annual return of 160% if sustained.

So what does this mean to those of us who have granny’s collection of silver service for 12 or $100 worth of pre-1964 coins. It means that these objects may have real value even without considering the artistic consideration of whether the pattern is Williamsburg Shell or something else. If you bought a sterling golf tankard for $100 ten years ago, its smelting value might have been $40 (8oz x $5.00 an ounce). Today that same tankard is worth $152 even if the scrap dealer just throws it in the smelter to melt and sell. As noted above, these kinds of goods have high mark-ups and usually trade at a fraction of retail. But because the metal used is now so valuable, it may be very worthwhile to consider making the investment in an appraisal.

Bear in mind a couple of details that make all the difference. Gold found in retail goods in the US it typically 10, 14, or 18 carat. Gold is usually marked with its composition. This means it is 42%-75% gold and otherwise a composite of other hard metals. Sterling silver is 92.5% raw material so it is typically close to the commodity price. But, one needs to know the difference between silver and silverplate, as the latter is really another metal (typically copper or brass) plated with a microscopic coating of silver. So, unless the piece has hallmarks or otherwise has the word “sterling” embossed in the metal, chances are you are holding a piece of copper or brass, dressed up to look like sterling. It could still be valuable but that would be as art and not metal.

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If a custody case is not scheduled for trial within 6 months of the complaint, or praecipe of a party, it will be dismissed. Dietrich v. Dietrich, 923 A.2d 467 (Pa. Super. 2007).

As family law practitioners, we are often waiting long periods of time for our custody cases to be listed for trial. When asked by clients when we think the trial will occur, we can only guess. In some situations, the time delay may help a litigant; in other situations, its may severely hurt.

Recognizing the timing issue, in 2000 the Pennsylvania Supreme Court adopted Pa.R.C.P. 1915.4, which requires scheduling of a custody trial within 180 days of the filing of the Complaint or Praecipe of a party. Initially, although courts were cognizant of the scheduling pressure place upon them, this Rule received little fanfare.

However, based upon the recent ruling in Dietrich, and the strict interpretation of the Rule by our Superior Court, this Rule can now be used as a weapon for dismissing a custody action. For example, if representing the party who is satisfied with the status quo, the practitioner may not be in a rush to trial.  Conversely, if representing the party seeking modification or an initial order, practitioners must be mindful of trial scheduling to avoid dismissal of their case.

Whether used as a sword or a shield, family lawyers must be aware of the implications Pa.R.C.P. 1915.4 can have on their custody case in light of the Dietrich decision.

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As Spring Break and the summer approach, you may want to think about your travel plans if you are separated or divorced from the child's other parent.  If you already have a custody schedule in place, you should make sure that you abide by the terms of the Agreement, which oftentimes includes giving notice to the other party in advance and providing your travel and contact information. Additionally, if you are going to travel abroad, you should think about how to secure a passport for your minor children. The rules changed as of February 1, 2008, so that while they used to apply to minors under the age of 14, the rules now will apply to minors under the age of 16. The following link lists the information that you will need to bring with you to obtain a passport for your child: http://travel.state.gov/passport/get/minors/minors_834.html#

You will not be able to secure a passport for your minor child if you do not have the other parent’s permission. If the other parent cannot/will not go with you to apply for the passport in person, you will need the other parent to sign and notarize a consent form for the passport. The consent form is on the state department's website at the following link: http://travel.state.gov/passport/forms/ds3053/ds3053_846.html

Additionally, once you have travel plans, you need to have a notarized consent form from the other parent that you can leave the United States with your child. This will ensure that you do not have any trouble at the airport.

Although it sounds complicated, if you plan ahead, you will be able to ensure a relaxing trip with your child!

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