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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

MAKE APRIL 11 YOUR TAX DAY

Posted in Divorce, Practice Issues

It isn’t just the accountants who suffer in April.  Not that they garner much sympathy but lawyers who do divorce work are also afflicted by a tsunami of telephone calls that begin a couple days before April 15.  Most begin with:  “My spouse is in the driveway demanding that I sign the returns he just picked up from the accountant.  What should I do?”

The calls are menacing because you can feel the tension through the phone.  You also know that you really cannot help.  The lawyer doesn’t know what the return says so we have no idea what to tell the client.  So here are our tax tips for April, 2014.

If you sign the return that is being handed to you at the last second, know that you are stating under oath that the information is accurate on the return and that you agree that you owe any money due in connection with the return.  It also means that you owe any money the IRS decides is due after they finish having their way with the return.

Scared?  Well, you can tell your spouse that you will agree to jointly file for an extension.  The extension runs to October 15 and to be valid must be accompanied by any payment due.

You can file separately.  This actually may be best because a married separate return can be amended to a joint return after you have had a chance to review the return with a lawyer or accountant of your choosing.  You can also file an extension separately.  In that way you are not committing to a joint return until you have a chance to look.

The separate return or the extension are scary in their own right mainly because you know that failing to sign the return is going to make your spouse VERY ANGRY.  It’s a pretty common ploy and people are not always at their best during tax season anyway.

The real answer is to write an email to your spouse this weekend.

“Dear Spouse.  It’s about to be the second week of April.  If you are expecting me to sign a joint return I need time to look at it.  If I don’t have the return to look at by Friday April 11, I’ll arrange to file separately or file for an extension.  That’s only fair.”

If you and spouse work regular jobs for regular pay and receive W-2s at the end of January, tax returns are usually not minefields for problems.  But if you have any kind of business or rental real estate or unusual income, tax returns become far more complicated.  The more complicated the return, the more likely, the IRS will want to review it and perhaps adjust or audit the return. So beware and try to avoid calling your lawyer on April 14 or 15.

A PAGE TURNER OPINION FROM MONTGOMERY COUNTY REMINDS US OF WHAT IS AND ISN’T RELEVANT IN A CUSTODY CASE

Posted in Adoption, Custody, Divorce

One of the most difficult concepts for lay persons to understand in the law is the rule stating that only relevant evidence is admissible in judicial proceedings.  The concept would seem self-evident as no one would disagree with the principle that courts should not waste time considering irrelevant evidence.  But when faced with a case that directly affects them, lawyers and clients alike tend to want to blur the line because we want to prove to the world that our opponents are somehow unscrupulous or at least unworthy to win a legal point.

My own episode came last week in a custody proceeding where my client was fixated upon the fact that his spouse had been having one if not two different affairs in the 24 months leading up to their separation.  Needless to say, there is no denying the sting of learning that a spouse was involved in such relationships at a time when his or her partner thought that all was either well or, at least satisfactory. But in the custody conference we had with the court, I was having a difficult time persuading my client that the focus of our presentation needed to be on what contributions he had made to the rearing of his kids in contrast with the pain he was experiencing as the victim of infidelity that his two youngsters knew nothing about.

Then I read K.G. v. E.D. a decision by Judge Coonahan published in the Montgomery Law Reporter.  151 Montg. Co. Law Reporter 151 (2014).  The facts as reported in the case are fascinating.

A single woman decides in Fall, 2009 that she will explore what dating possibilities she can find on Match.com.  There she encounters a profile for a man describing himself as divorced.  You can fast forward the next chapter but suffice to say that by Spring, 2010 she is pregnant.  In late December a daughter is born. Father comes to the hospital the day after delivery and all seems to go well until it is time to provide information about him on the birth certificate.  If the opinion gets it right Father is willing to identify himself only with first and last initials and refuses to provide a social security number. Thus he ends up not identified on the birth certificate.

While marriage was discussed Father confines himself to visits to see Mother and daughter several times per week.  When the child is one month old he arrives with a legal form which he says is intended to confirm his rights as father.  She thought the form odd but signed it anyway and life went on.  When Mother’s maternity leave ended, Father said he would keep the child during the day at his home in Northern Delaware and arrange for a nanny.  The plan was supposed to be temporary until the couple actually established a common household but that wasn’t coming about.  At one point Father suggested he keep the child for several days in a row so that the baby could get used to the nanny.  When Mother tried to get the child back, her request was not immediately complied with.  On a day in early March, 2011, our couple meets at a restaurant in Maryland where Father tells her he is actually married but that the relationship is an open one.  He also revealed that the document Mother signed in late January, 2011 was a consent to allow Father and his current wife to adopt the baby.

By March 7 Mother files and emergency custody complaint.  Father responds with a petition to stay the custody action because there is a prior pending adoption underway.  The case then swings over to Orphans’ Court where the adoption is pending with Mother seeking to revoke her consent to adoption premised upon an allegation that the consent was fraudulently obtained.  A stay was briefly in place but that was quickly lifted and the parties entered into a consent agreement by which Father had primary custody and Mother had alternate weekends.

In October, 2011 the Orphans’ Court revoked the consent and dismissed the adoption proceedings. Father appealed that to the Superior Court without success and then failed in his request for the Supreme Court to review the order terminating the adoption.  The fact that the adoption proceedings were in the Superior Court appears to have prevented the family division from hearing the custody case. The custody case began in March, 2013 and continued for fifteen days concluding in August, 2013 with an award of shared legal and physical custody which both parties appealed.

Needless to say, in the custody proceedings, Mother came on strong with what must have been a fascinating record and set of judicial findings from the Orphans’ Court about the means and method Father employed to engineer an adoption of a child he wasn’t too pleased to be having in the first place. Father probably did not endear himself to the Court by appealing the orders terminating the adoption to the Supreme Court and testifying that he did not agree that the adoption was sought fraudulently.

Mother was not without her own baggage.  While she had held several conventional jobs, at some time either before or during the time she met Father she worked in the sex trade as a masseuse.  One also has to question what Mother was thinking when she signed a consent to adoption; a document that is not really that ambiguous in its content.  Mother testified that she had worked in retail and accounting management, areas where one is presumably required to examine documents with care.

Judge Coonahan wasn’t having any of this form a basis for her decision.  As she properly noted, in a custody proceeding the evidence needs to relate to the best interests of the child and not the character of the parties or conduct that is unrelated to raising a child.  As the judge put it at the outset of the trial: “It was a different inquiry {in Orphans’ Court}. {That Court proceeding}… had a different focus, a different responsibility. ….  I make my own credibility findings.”

As the Court observed, it was not there to redress Father’s purported wrongs in trying to secure an adoption.  The determination in custody court was directed to the relative abilities of the parents to perform in the role of parents.

It is clear from this opinion that Mother assumed that the findings of the Orphans’ Court and the Superior Court with respect to Father’s “adoption” proceedings so besmirched his character as to make him an unworthy parent as a matter of law.  Certainly, one would have to reach far to find anything about Father’s conduct or that of his real wife in pursuing adoption that speaks well of their character.  But that is not the standard.  The standard is how well do these people perform as parents to a child now just over three years of age.

One may argue that a person who is found to have sought an adoption wrongfully is, by definition, an unfit parent.  If you review older case law, you can find plenty to suggest that a parent who worked in the sex industry should also be labeled unfit.  We live in a different day and it is one where the word unfit must be reflective of conduct that affects the child both negatively and directly.

ARE BITCOINS AND OTHER CRYPTOCURRENCIES THE NEXT SWISS BANK ACCOUNTS?

Posted in Divorce

We all know the French proverb; the more things change the more they stay the same.  It has a place in the current controversy over the sudden collapse of Bitcoin’s leading dealer, Mt. Gox. Bitcoin is a virtual or cryptocurrency.  It is an asset that a customer holds in a form where only the asset holder and the person with whom he transacts are aware.

Bitcoins are created through a process termed “mining” by which an investor typically puts up cash in exchange for debits logged on an electronic ledger. Mt. Gox was the largest of the exchanges offering to buy or sell bitcoins at prices determined by supply and demand.  The system was created in 2009.  It soon attracted legitimate businesses because the transaction fees were substantially less than credit cards.  It also attracted customers interested in selling merchandise and services that they did not want traced.  Like most other currency, there are actual coins minted but the system is predicated upon electronic transfer rather than some form of specie.  While Bitcoins have been issued for several years now, the press began to report extensively on this new “investment” when prices rose precipitously from $100 in mid-October, 2013 to $1,100 by years’ end.  Since that time they have declined by half to about $575.

Ironically, the explosion in Bitcoin prices coincided with the announcement by the Swiss government that it would become a party to the Multilateral Convention on Mutual Administrative Assistance in Tax Matters.  While the title of that protocol leaves something to be desired, the net effect was lauded as “the end of banking secrecy” in a country long considered the home of the private untraceable bank account.  While this arrangement has not yet been formally ratified by the Federal Assembly (the Swiss Parliament) it is expected to pass as the result of pressure that began with the money laundering traced to the September 11, 2001 attacks and subsequent mass migrations of deposits during the 2008 financial crisis.  Swiss banking giant UBS began to do this in April, 2009.  In July, 2013, the Swiss Courts further opened the door to these kinds of disclosures to US tax authorities.

Today 58 nations are members of the “Convention.”  The purpose of the compact is to permit taxing authorities of the member states to trace the assets of its own nationals beyond the borders of the lands where they reside.  While the list of adherents includes most major countries, the more noted tax havens in the Caribbean have not jumped on the bandwagon.

Why is this topic part of a discussion about divorce?  For decades our profession has dealt with the suggestion that one spouse is holding assets “offshore.”  Inevitably this allegation was met with the lawyer’s inquiry: “Any idea what shore?”  The more famous sites included the following island nations: Bahamas; Cook, Caymans, Leeward, St. Vincent & Grenadines.  In addition, Dominica, Liechtenstein, Lebanon, Panama and the Philippines were found on a list compiled by the Financial Action Task Force.   Israel, Lebanon, Russia and the Philippines have also been named as potential hideouts.

Bitcoins offer a new haven and one that an investor need not visit to open an account.  In addition Bitcoins are but one form of cryptocurrency. Wikipedia currently lists nine other forms of this new financial instrument and suggests that there are more than fifty others.  See Cryptocurrency; Digital Currency.

The danger is that a spouse wishing to hide assets now has an untraceable means to accomplish his or her purpose.  If there is good news, it is that these forms of assets are highly volatile and some economists have suggested that these kinds of systems are not sustainable.  Typically, once fiat or government regulated currency enters these markets it is not exchangeable for any other form of hard currency.  It may be exchanged or other virtual currency but unless these other systems survive, there is risk that the entire investment could be lost.  If it is hacked or otherwise stolen there is essentially no recourse.  But people determined to keep money away from the claims of a spouse may be willing to absorb that risk.

Bitcoins received another blow this week as the IRS announced how it would deal with them.  The Service announced that bitcoins were not currency but property and were therefore treated as capital assets for which gain and loss needed to be reported.  Thus, if you acquired a bitcoin at $700 and used it in 2013 to acquire a piece of jewelry worth $1200 (because the bitcoin had appreciated), your jewelry purchase was not merely an asset acquisition but a capital gain as well since your $700 investment allowed you to purchase a $1200 asset.  The guidelines also indicate that exchanges that make a market in bitcoins will have a duty to report transactions to the IRS.  How much compliance the exchanges will provide with that regulation remains to be seen.

SUPERIOR COURT: NO CUSTODY FACTOR ANALYSIS IF CUSTODY AWARD UNAFFECTED

Posted in Custody, Practice Issues

Tools of the TradeA Superior Court opinion was handed down on February 4, 2014 addressing the issue as to whether or not a trial court must address all 16 factors enumerated in 23 Pa. C.S.A. §5328 when the custody hearing is only considering a “discreet and narrow issue ancillary to a materially unchallenged custody arrangement.”

That this question exists is due, in large part, to some of the ambiguity that exists surrounding the custody statute which was amended in 2010. Within that amendment, it was established that there were 16 factors which should be utilized in deciding a custody case. When making their custody decisions, judges must articulate on the record how each of those factors weighed into their decision.

A question arose, however, whether a trial court needed to address each of those individual issues within each and every custody action. In the case of M. O. v. J. T. R., 1757 E.D.A. 2013, the parties were able to resolve by agreement all of the issues related to their custody dispute. The action began when father filed a petition for modification of their 2007 agreed parenting plan. The Chester County Court of Common Pleas judge in the case conducted pre-trial conferences at the parties’ request during which they ultimately narrowed their issues down to whether father would be required to take time off from work during the three weeks of his summer custodial vacation time.

The trial court heard testimony limited to just that issue and, on May 22, 2013, the court issued an order allowing father to continue working during his summer custodial time. Mother’s motion for reconsideration was denied by the court and she filed a timely appeal to the Superior Court.

Mother first raised the issue regarding the limited evidence presented in the case, but the Superior Court points out that she consented to a hearing on a single, limited issue left over from the overall agreement the parties reached.

Mother then argues that the trial court did not expressly consider each of the 16 factors set forth in 23 Pa. C.S.A. §5328(a) when it rendered its decision.  She cites the requirement under §5323(d) requiring the trial court to provide its rationale for its decision.

The trial court determined, and was upheld by the Superior Court, that because the hearing was limited to a single, narrow issue, it did not have to address each of the 16 factors.  Moreover, the trial court concluded that “most of the factors are not relevant to the issue of father’s summer employment schedule and that the parties did not present evidence concerning the majority of the factors.”

The main issue for the Superior Court was that under §5323 of the Custody Code, the court must provide the rationale for a specific section of custody awards, namely, 1) shared physical custody; 2) primary physical custody; 3) partial physical custody; 4) sole physical custody; 5) supervised physical custody; 6) shared legal custody, and; 7) sole legal custody.  The court interpreted §5328(a) as being a requirement when one of those seven custody awards affected and that “while the trial court’s ruling modified its prior order, it did not change the underlying award of custody.”

This case is important from the standpoint that it helps shape the extent to which the trial court must delineate its decisions by each custody factor.  It is certainly a guide to practitioners as to what type of custody hearing requires the full articulation of each of the 16 custody factors in a custody trial.

M.O. v. J. T. R., 2014 Pa. Super. 15

(Photo Credit: www.123rf.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of 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.

RULES ARE RULES: SUPERIOR COURT SLAPS COUNSEL FEES ON PARTY APPEALING HIS OWN MISTAKE

Posted in Alimony, Divorce, Equitable Distribution, Practice Issues, Prenuptial Agreements, Support
Not the best use...

Not the best use...

A very interesting opinion recently came down from the Pennsylvania Superior Court awarding attorney’s fees in a divorce case. This case is a non-precedential opinion, meaning it cannot be cited as establishing law on the issue, but it is emblematic of the risk one runs if you do not follow the rules.

The parties, two attorneys, in fact, had resolved their divorce by way of a Marital Settlement Agreement in March 2011, about two years after the wife filed for divorce. They also had a prenuptial agreement, so the distribution of their estate was addressed in a comprehensive way and nothing was preventing them from getting divorced.

After the deal was done, however, the husband came back and raised an issue about the return of jewelry he gave wife and about the payment of a ten-percent referral fee for a case he sent to his ex-wife’s firm.

Another two years pass.  In March 2013 wife files an Affidavit of Consent under Section 3301(d) of the Divorce Code. That form of affidavit is used when two years have passed since separation and, unlike Section 3301(c), wife was the only one who needed to file it to establish the no-fault grounds for divorce. Once the divorce decree is entered, the parties are prevented from raising any other economic claims. In other words, if husband wanted the referral fee and jewelry, then he needed to have them dealt by raising the issues with the court.

Husband filed a Counter-Affidavit in conformity with the rules. This document is used whenever a party wishes to raise an economic claim for resolution by the court and this was the first step husband needed to take to address the referral fee and jewelry issues he first raised two years prior.

When filing his counter-affidavit, he checked off the box indicating he wished to raise economic claims. Under that box there is language stating that,

“I understand that in addition to checking (b) above, I must also file all of my economic claims with the prothonotary in writing and serve them on the other party.  If I fail to do so before the date set forth on the Notice of Intention to Request Divorce Decree, the divorce decree may be entered without further delay.”

Husband never filed anything else. When the notice period ended, wife obtained a divorce decree on or about May 2, 2013 and husband lost his chance to address his referral fee and jewelry repossession.

When filing his appeal, Husband took the position that the rule requiring him to file his economic claims with the prothonotary wasn’t really followed in Montgomery County. He argued that the trial court abused its discretion because the court generally does not enforce the rule requiring a party to file their economic claims with the prothonotary. Basically, checking the box was enough, wife knew he had additional economic claims, and they should not have entered the decree (or, rather, declined to strike the decree).

Suffice to say, the Superior Court disagreed and found that husband demonstrated no proof that Montgomery County engages in “[a] routine practice…to allow parties to disregard clear instructions set forth in form documents pursuant to the Rules of Civil Procedure” and that “the trial court flatly denies [husband’s] contention, saying that it ‘is unaware of any unspoken practice not to adhere to the instructions on the form counter-affidavit.”

The Superior Court found the appeal frivolous and agreed with wife’s request for counsel fees from husband. As of this writing, the Superior Court has sent the case back to the trial court to determine how much in counsel fees husband will have to pay wife. He cannot feel very confident that the Court he argued did not, as a practice, follow the rules, is now in the position of deciding how much money he will have to pay his ex-wife.

The major lesson from this opinion is that one should never take the rules for granted and assume they can be ignored; do so at your own risk.

No one is perfect and mistakes do happen, however. No one wants to miss a deadline or misinterpret a rule, but if it happens, do not let your ego or pride push you into making worse decisions.

Opinion available at: Savett v. Rovner, No 1743 EDA 2013

Photo: www.myipadretinawallpaper.com

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of 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.

AVOIDING COURT: FOUR ALTERNATIVE METHODS

Posted in Divorce, Equitable Distribution, Practice Issues

Avoiding court is a common goal of many clients. Not only can it be expensive and time consuming, but it can also be emotionally exhausting and do further damage the parties’ relationship particularly when they need co-parent. Being prepared for court ensures that a client will always give themselves the best chance at a favorable outcome to their case, but that does not mean a case may not be better served by staying out of court.

“Alternative dispute resolution” is a phrase more commonly heard in civil and commercial litigation cases, but the same principles apply in family court. It describes a category of methods for keeping cases out of court and away from traditional litigation. The advantages being that the parties have more control over the time-frame, costs, and legal issues being addressed in their case. The following is a list of the most common alternatives to going to court:

1.         “Four Way Meeting” – the two parties and their two attorneys sit down together and work on settling the case. The goal of these meetings should be a written agreement between the parties.

2.         Mediation – the parties meet with a neutral third-party to try to reach a mutually agreeable solution. The mediator guides them through their issues and suggests ways to resolve disputes. The mediator will not make decisions, however, and the case is settled only when the parties sign a settlement agreement.

3.         Arbitration – an attorney or expert is hired by the parties to effectively serve as “judge.” The major advantages to this method are that the arbitrator does not have the scheduling constraints of the court system; operates within the rules the parties decide upon in advance, and; addresses only those agreed upon issues. Though often the closest method to traditional litigation, it usually allows cases to move forward more quickly and, for complex cases, less costly.

4.         Collaborative Law – this is a catch-all term encompassing many of the concepts identified in the other methods while also suggesting a philosophical shift away from litigation. Collaborative law often means a series of sessions and meetings between the parties and counsel to work through issues; shared costs and resources for the valuation of the marital estate or custody evaluations, and; a cooperative rather than adversarial approach between the parties and their counsel.

Each case requires a different approach and there will always be some cases which need to move through the traditional litigation track.  Where appropriate, however, these forms of alternative dispute resolution can provide parties with the opportunity to expedite their cases and, hopefully, invest fewer financial and emotional resources to the process.

WHAT’S IN A NAME? MORE THAN YOU THINK

Posted in Adoption, Custody, Practice Issues

Periodically I am asked questions about name changes for children or whether a mother is obligated to use the biological father’s last name for the child (answer: she’s not). A child’s last name is obviously an important and complicated issue that relates to the child’s identity and understanding of their history and parents. Mishandling a child’s last name can have emotional and legal repercussions for the child later in life.

A recent case out of Lawrence County in Pennsylvania highlights the standards used to consider whether changing a child’s name is in their best interests. The case In Re: Jessica Benegasi Foore involved a petition by the mother to remove the last name of the child’s biological father (“Foore”). The Court agreed on the basis that the child did not have a relationship with her father, thus there was no risk of alienation or interference with that relationship, but also because the name change would mirror that of her mother and half-sibling. The court considered that sharing the same name as the other members of her family would make the transition into school easier and provide her with better emotional security. The court also recognized that the father’s name carried with a negative connotation and poor reputation.

The considerations made the court in this case are not exhaustive, but provide a good insight into what facts make for successful name change petitions.

In Re: Jessica Benegasi Foore, C.P. Lawrence County, No. 70097 of 2011, M.D. (C.C.P. July 17, 2013).

 

DEMANDING SEX FOR FINANCIAL SUPPORT IS UPHELD AS “ABUSE” AND MAY BE A FELONY OF THE SECOND DEGREE.

Posted in Protection from Abuse, Support

In a case decided by the Pennsylvania Superior Court on January 7 of this year, we have a new wrinkle in the world of what constitutes abuse under the Protection from Abuse statute.  23 Pa. C.S. 6102. The statute defines abuse to include knowing and/or recklessly causing rape, sexual assault or indecent assault. All of these offenses can be found in the Crimes Code, and no sensible person would argue that they do not constitute abuse. 

Strange facts make for strange laws, however. In Boykai v. Young, a Bucks County court was confronted with a situation where husband and wife differed over how often they should have sex. 2014 Pa. Super. 4 (2014).  The couple had married in November 2011 and by January 2013 the wife came to court seeking an award of support from husband although they still resided together. When she told the file clerk the facts she was referred to Legal Aid and that organization filed the PFA on her behalf. 

The case includes findings by the trial court that at times husband would physically overpower wife in order to have sex.  The couple had a child in April 2012 and wife testified that on at least one occasion, husband insisted they have sex despite a physician’s proscription against such activity for a period of six weeks. Husband testified that after the child was born he and wife only had sexual relations when she agreed. 

The hearing was held almost a year after the child was born. At that time wife offered that she had sought support because husband was withholding support unless she agreed to have sex on a daily basis. The opinion from the trial court then stated that “Husband still tried to force himself on her.” Unfortunately, it is entirely unclear what form this “force” took but it appears to have been a kind of economic coercion.  

The Superior Court affirmed a finding of abuse and exclusion of the husband from the household for a period of one year.  The Court paid particular attention to the “forcible compulsion” definition found at Section 3101 of the Crimes Code (title 18). There, forcible compulsion goes far beyond physical acts and includes “intellectual, moral, emotional or psychological force, either express or implied.” By this definition one could be guilty of a first degree felony premised upon conduct that a Court found to be implied moral force.  

Complicating this further were the facts forming the foundation for the “force”. According to the Superior Court opinion, the critical testimony was: “He stopped supporting me. He stopped paying my bills. Because he wanted to have sex seven days a week and I said, no, three days a week, And he said, no.“ The trial court opinion goes on to observe that husband perceived that his role as breadwinner entitled him to decide and that he would not permit his wife to work. 

While the parties to this case were both recent immigrants from West Africa, the issue is a source of marital disagreement throughout the world.  The Superior Court equated husband’s conduct in withholding money unless he secured sex on his terms to “intellectual or psychological force” as referenced in 18 Pa.C.S. 3101.  In a word,  both the trial court and the Superior Court here find that husband’s conduct constituted sexual assault as defined in 18 Pa. C.S. 3124.1.

This is a sad case; a fascinating case and a troubling one. The clear message is that any form of coercion, even moral coercion (if such a thing exists) constitutes a red zone of proscribed conduct. Both the public and the legal community need to understand that.  

Further recommended reading:  Com. v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010) which is cited by this opinion for the proposition that threatening suicide amounts to the psychological force necessary to sustain a rape conviction. A reading of Eckrote shows it to have facts far more compelling than the conduct described in Boykai.

 

ADVICE TO PSYCHOLOGISTS: TAKE TWO ASPIRIN AND CALL THE LAWYER IN THE MORNING

Posted in Divorce

Part 2 of 2

4.            “The complaint is full of lies about me.”

Of course it is.  But by operation of law every allegation in the complaint itself is deemed denied until proven. So if your wife alleges that you make more money than she does and you should have to pay for her attorney, understand that this is nothing more than her claim and she will have to prove it at the appropriate time. You may have to prove someday that your view of these facts is correct and hers is not, but just because it’s in a pleading doesn’t make it true or believable.

Now, here is the hitch. What we just wrote is true about the divorce, support or custody complaint itself. But in the package of documents served on you may lurk separate motions or petitions that have a cover sheet telling you that you must answer in twenty days or risk bad things happening. DO NOT IGNORE these little documents. You do so at your peril. Also, a divorce complaint may be accompanied by an affidavit stating you have been separated for two or more years. That affidavit must also be answered in a timely manner.

5.            “There is no alimony in Pennsylvania.”

Guess again.  And while how and when alimony gets paid has changed markedly, especially in the past six years, there has always been alimony in Pennsylvania. In olden times it was granted in very unusual circumstances. Today it is more the rule than the exception.

6.            “It’s no fault, so you are divorced in ninety days.”

If only that were true. In Pennsylvania you cannot consent to a divorce until at least ninety days after the complaint is served. And then, only rarely do people both promptly file their consents. Even more bizarre, a spouse who sues you for divorce is not required to consent to the divorce he or she filed. It sounds strange but it happens all the time.

Some states like New Jersey take control of a divorce action and shepherd the parties through the process. Pennsylvania is not so sophisticated. People dally with the process and ignore the system. It makes the system grossly inefficient and expensive but after 33 years of experience, no one seems to care. All of us have had clients who professed to “change” the system once they got through it. None has followed through; probably because the system sapped their energy and their resources

I’M STILL YOUR MOM: MOM TRIES TO KEEP HER MINOR SON FROM COLLEGE OF HIS CHOICE

Posted in Custody, Divorce

Malik McDowell still wants Michigan State but will visit Florida State, Ohio State and Michigan.  (USATSI)(Photo Credit: 247Sports)

I know this blog is supposed to deal with family law issues, but “family law” is really a broad term which can cover any number of issues besides simply divorce or economic issues. It can also cover the interpersonal issues which arise as a result of fractured families; issues which gain momentum and manifest themselves in other areas of life.

Take, for instance, committing to pay college football. February 5th was National Letter of Intent signing day for high school seniors to commit to playing college football. Last year, I wrote about the unusual situation of Alex Collins, a running back from Plantation, Florida.  Alex’s mom did not want him to play at the University of Arkansas, so she basically took off (literally fled the press conference) with his letter of intent. It was a ridiculous situation made more complicated in that Alex’s parents were not together and his father not present at the time. Ultimately, Alex’s father cosigned the letter and Alex went to Arkansas where he rushed for over a thousand yards on a bad Arkansas team (0-8 in the SEC). He will probably be the building block of a revitalized Razorback team under head coach Bret Bielema and the national media will be revisiting this story when Alex is getting ready to turn pro in two years.

With that in in my mind, I was reading about various teams recruiting classes and thought to myself that nothing bizarre had happened; was there not going to be any Signing Day intrigue?

In words of Lee Corso, “not so fast my friend.” It turns out another young man is being unfairly stuck in the middle of the competing interests of adults around him. Malik McDowell is one of the best high school football players in the country and he’s also 17 years old and unable to sign his National Letter of Intent without a parent or legal guardian. Unfortunately for him and Spartan Nation, it seems that neither of Malik’s parents are that keen for him to attend their local university, Michigan State, and would rather he go to some other Big Ten schools or perhaps to a Florida school. Malik’s father at least seems to be saying the right things, but he’s admitted that he’s essentially powerless to deal with situation due to the limitations on his custodial rights.

Suffice to say, at the heart of this issue is a custody matter. Since Malik’s mother has primary custody, his father has to go along with Malik’s ongoing recruitment. He also said perhaps a more realistic and responsible comment when he cautioned his son about alienating his mother with this decision.

Hopefully, Malik’s parents work together and respect Malik’s decision as a 17 year old young man to decide where he wants to go to school and play football.