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

PASCES, the collection and enforcement agency for  support in Pennsylvania, has begun requiring that an obligor's first support payment be paid at the time of the initial conference if an interim or a final order is entered.  This applies to child support, spousal support and APL cases. 

Montgomery County instituted this requirement a few months ago.  Chester County recently has done so.  I'm sure others will be following suit.  If you are an attorney representing an obligor, make sure your client does not find out about this "surprise" at the end of the conference.

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Divorce rates hit an all time high in 1981.  According to a recent article on the CNN website, rates are continuing to drop.  But there are differences in opinion as to what really is going on in American families.

Several theories exist:

• Divorce rates are down because less people get married.  Rather, they live together.  In fact, the number of couples living together has increased by a factor of 10 since 1960.
• Divorce rates are falling in couples who are college educated.  The rationale being that in such families both parties may work, reducing financial stress, and allowing the couples to remain married.
• In some areas, the stigma of being divorced has increased.  Couples in these areas may be working harder to stay married. 

One thing to think about is that it doesn't matter to the children whether their parents are married or just live together when they split.  Either way, the children suffer the loss of their family.

Click here for a link to the CNN Article

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The Pennsylvania Superior Court decided the case of N.C. v. M.H. on May 1, 2007.  In that case the Court discussed the issues relating to the presumption of paternity and the doctrine of estoppel.

In Pennsylvania, there is a presumption that a child born to an intact marriage is a child of the marriage.  However, the presumption is rebuttable.

If the presumption is rebutted or found to be inapplicable, the next step is to determine if the father is estopped from denying paternity based upon the fact that he has held the child out as his own.  The rationale behind the doctrine is to prevent a child from suffering trauma by finding out that a person he thought was his father actually was not.

The doctrine of paternity by estoppel will not apply where there is fraud which caused the father to believe the child was his.  The concept of fraud is discussed at length in this case by the Superior Court.

The entire case can be reviewed by clicking on the title above.

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A recent article in the Philadelphia Inquirer addressed the issue of a soldier who went to war in Iraq, to defend our country, but when she came back to the United States, a family court judge ruled that it was in her child's best interests to remain in the custody of the child's father.  This is the saddest of issues for all involved.  And apparently, it is not uncommon.

What a dilemma!  Our soldier has answered the call to duty.  The other parent has taken on the huge responsibility of being a completely single parent.  The child, obviously our focus, has lost a parent for a significant period of time, and maybe had to change schools and make new friends.

And i even feel badly for the judge who is being asked to make a decision as to what is in the child's best interests when the soldier returns. 

My first thought was that I was sympathetic to the soldier, who had sacrificed so much to protect our freedom.  But then I thought about the others involved, and realized that this is a sad situation for everyone.  And obviously one which will need to be decided more and more, and on a case by case basis.

Click here to view the full article.

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Let the lesson be learned: In this day and age of technology, what you say, in whatever format, could be used against you later.

This morning's news story relating to Alex Baldwin's voice mail message to his daughter, who I believe was reported as being 11 years old, should be a lesson to every person going through a divorce and to every person who may now or in the future have a possible custody issue.  

While many states have laws limiting the recording of conversations, whether in person or on the phone (and you should consult an attorney about this issue before ever attempting to make such a recording because it could be a crime), if a person voluntarily creates a recorded message or statement, whether on a voice mail system or by sending an email, the statements made likely are admissible in a court proceeding. 

I tell my clients all the time to be very careful in emails.  In many situations I also ask to review many emails before they are sent.  Finally, I have clients keep every email, in bound and out bound, so that I can review them prior to hearings and make sure there are no surprises waiting for me in the courtroom.

If the recording of Alex Baldwin is accurate, it is wrong on so many levels.  Even if his allegations are true that his former spouse is attempting to alienate his child from him, it is up to him to take the high road and keep his daughter out of the middle of, what should be, an argument between the adults. 

Think before you speak and before you write.  That is the message for the day.

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The new client walks in the door, obviously nervous about his or her case being the subject of a public trial in the county courthouse.

The first thing I tell them is that most third parties are not interested in their divorce case.

The second thing I say is that most of the cases I handle resolve without the need for substantial litigation, although there may be a hearing or two along the way.

However, most recently I have found that I am trying a few more cases than usual, and I'm winning.  I'm not saying that so that readers will think: I've got to have Charlie Meyer as my lawyer.  My real point is that, while I have written in the past on the importance of professionalism and civility in the practice of law, especially in domestic relations practice, I now am finding that lawyers are taking positions they cannot possibly defend and upon which they cannot prevail.

I am reminded of the time when, as a young lawyer, I met with an "experienced" (read "older") lawyer in his storefront office to discuss a support matter.  It obviously was a case which would be decided under the Guidelines.  But to my surprise, his position was that "he didn't use 'those' guidelines".  Needless to say, we went to court, and the guidelines were applied.

This story is illustrative of what I am finding more and more in my practice.

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In Kulp v. Kulp, No. 269 MDA 2006 (Pa. Super. 3/12/07), the Superior Court was given the difficult job of deciding which party could decide where an urn containing their son's ashes would be placed.

The Trial Court ordered that the ashes be divided into two urns, and that each of the parties could decide on their own what to do with them.

After reviewing some procedural issues (i.e. whether the order was collateral), the Superior Court decided the matter, reversing and remanding the case to the trial court, with the instruction that the trial court was to follow the factors set forth in two prior matters, Pettigrew v. Pettigrew, 56 A.878 (Pa. 1904) and Novelli v. Carroll, 420 A.2d 469 (Pa. Super. 1980).

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Last week I posted an article on 12 things to think about before you separate.  Here's a "what not to do in a divorce"  story.

A husband in Germany, who was unable to reach an agreement with his wife as to who was to retain their summer house, got out his ruler, measured the house, cut it in half with his chain saw, and carried his half away on a fork lift.

I always say that I think I have seen it all, and then something like this comes along. 

I strongly recommend against learning from this story

Read more at CNN.

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As the media outlets have reported, we all appear to be fascinated by the death of Anna Nicole.  It’s like a horrible car accident on the highway:  we don’t want to look, but we can’t help ourselves.

In any event, things can be learned from this case, including:

• Update Your Will.  Anna Nicole’s will was dated.  If she had updated it, the courts would have had a much better idea of how she wanted her affairs handled after her death.
• Who Gets the Kids?  It is important to make a clear declaration as to your wishes with respect to who should care for the children in the event neither parent is alive. 
• What's Going to Happen to You?  Do you want to be cremated or buried?  Where do you want to be buried?  Make your wishes clear as to what is going to happen to you after you die.

It is so difficult to face your mortality.  But failing to do so could make your death even more traumatic for your loved ones.

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My fellow blogger, Al Nye, the author of Maine Divorce Law Blog, recently sent me the following article.  Its a nice primer relating to things to think about as a client in making the decision whether or not to separate and divorce. 

Al writes the following:

You know the numbers.  It's projected right now that about half of all new marriages end up in divorce.  It's a horrible statistic that doesn't begin to suggest the emotional and financial strain that it puts on families.  Other than the death of your spouse, divorce is probably the most stressful event you'll ever face.  I've had women discussing their divorce in my office become violently ill.  I've seen hardened fishermen cry in open court during their divorce hearing.  Make no mistake – divorce is hell.

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In Rimel v. Rimel, 913 A.2d 289 (Pa. Super. 2006), the Superior Court addressed an issue of first impression: whether husband was entitled to a social security set-off against the value of his Federal CSRS pension where he had worked not only for the federal government, but also in jobs through which he did contribute to the social security system.

The Court decided that Husband was entitled to such a set-off, but remanded the matter for additional testimony, as the facts had not been developed which would allow for the determination of what amounted to be a "partial set-off".

The Court cited the following cases:

Cornbleth, 580 A.2d 369 (Pa. Super. 1990)

Twilla, 664 A.2d 1020 (Pa. Super. 1995)

The Court distinguished the following cases:

Elhajj, 605 A.2d 1268 (Pa. Super. 1992)

McClain, 693 A.2d 1355 (Pa. Super. 1997)

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Pursuant to 23 Pa.C.S.A. Section 4308.1, proceeds from a "monetary reward", such as a Personal Injury Award, are subject to a lien for child support arrears.  Parties and their attorneys have obligations under the section of the Domestic Relations Code.  Basically, documentation must be provided by the party to the attorney, and the attorney must verify the information and then satisfy the lien before distributing any funds to the client.

In lieu of relying on information from the client, the attorney may utilize an approved judgment search company or an insurer which furnishes information and transmits funds under the child support enforcement lien program operated through a central reporting agency approved by the department.  By doing so, the attorney is immune civil, criminal and/or administrative penalties.

There is much more to the statute section, but attorneys certainly should be aware of their obligations in this regard.

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Here is a factual situation which is not atypical:

Mother pays child support to Father, based upon earnings of $100,000 per year.  Mother loses her job, and takes a lower paying job earning $50,000.   Then she files a Petition to Modify her Support Order.

What are the considerations in a case like this?  A recent Superior Court Opinion, Grigoruk v. Grigoruk, 912 A.2d 311(Pa. Super. 2006), sets forth a concise review of the considerations.  The Court's discussion includes the following queries which must be resolved:

• Under Pa.R.C.P. 1910.16-2(d), a party voluntarily accepting a lower paying job is not entitled to a reduction in support.  However, if a parent is fired for cause, the court should look to the party's attempt to mitigate the lost income in deciding if a reduction in support should be allowed.
• The court should look to the factual circumstances to determine if the subsequent job search was sufficient.
• The court should look at the party's employment immediately prior to the request for modification, and not the highest paying job the parent had 4 years ago.
• A higher earning capacity may be assigned if the court finds that the reduction in income was the result of a parent's misguided choice.
• A parent may accept a lower paying job where it was the only job offered after a reasonable search.
• A parent does not necessarily have an ongoing duty to mitigate the lost income by conducting an ongoing job search.  However, this also would be a determination based upon the facts.

In this case, the Superior Court relied upon several other cases to support its position, or to distinguish its position, including:

Ewing v. Ewing, 843 A.2d 1282 (Pa. Super. 2004)

Novinger v. Smith, 880 A.2d 1255 (Pa. Super. 2005)

Woskub v. Woskub, 843 A.2d 1247 (Pa. Super. 2004)

Dennis v. Whitney, 844 A.2d 1267 (Pa. Super. 2004)

Baehr v. Baehr, 889 A.2d 1240 (Pa. Super. 2005)

Samii v. Samii, 847 A.2d 691 (Pa. Super. 2004)

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It's holiday time and that means that all of the domestic relations lawyers I know are dealing with holiday custody issues. 

For those of you who may be in a frustrating situation, my only comment is to remember that all holidays, and especially Christmas, are for the children, and to keep that in mind when trying to figure out how to handle disagreements over the custody schedule during this hectic time.  Think before you speak, put the best interests of the children first, and remember that there are 365 days in each year, and that a few hours or one day here or there are not going to change your life, and especially won't change the lives of your children.

Do your best to make this a happy, safe, peaceful holiday season.

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We all know that there is a dependency exemption available for children who live with us.  But in a divorce situation, who gets to take the deduction?

Pursuant to the Internal Revenue Code Section 152, if one party has primary physical custody of the child(ren), such that the child lives with that parent for more than one-half of the year, that party is entitled to claim the exemption. 

Pennsylvania Rule of Civil Procedure 1910.16-2(f) authorizes the court to award the dependency exemption to the non-custodial party as "justice and fairness require", in an effort to maximize the total available income for support.  The Rule also permits the court to decide which party gets the exemption in a situation where custody is equally shared.

However, most recently the IRS has issued Notice 2006-86, which is entitled "'Tie-braking' Rule for Two or More Taxpayers Claiming a Child as a Qualifying Child".  The Notice provides information regarding IRC Section 152(c)(4)(B), which states, in substance, that where the parents share custody equally, such that the exemption could be claimed by either party, "the taxpayer with the highest adjusted gross income for that taxable year" gets to claim the exemption. 

This new rule answers a question which used to create problems on April 15 of each year for divorced parties and their lawyers.  Now, whether you agree with it or not, there is a rule on the issue.

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Section 4308.1 of Title 23 of the Pennsylvania Consolidated Statutes went into effect in September 2006.  It refers to any settlement paid as a lump sum and negotiated in lieu of, or subsequent to, the filing of a lawsuit of any civil judgment or civil arbitration award that is paid as a third party claim for bodily injury or death under property and/or casualty insurance, or paid as a workers’ compensation or occupational disease award under a workers’ compensation policy (including Property and Casualty Compensation or Occupational Disease Act Policies), in excess of Five Thousand Dollars ($5,000). 

When such an award is made, it cannot be paid to the plaintiff until the attorney, insurer or other paying agent either uses a private judgment search company approved by the Department of Child Support Enforcement Lien Program or the prevailing party/beneficiary of the funds provides a statement and written documentation to show that no arrears from the Pennsylvania Child Support Enforcement System exists. 

In English, what this means is that if you owe support, you won't get the proceeds of your suit until your support arrears are paid.  And if you are a support recipient, if arrears exist on the account, and you find out that the person who is paying you support is going to get a settlement, you should be getting some money soon.

Obviously, this does not apply to support which is not being paid through the court.

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Massachusetts is the only state to permit same-sex marriages.  So what happens when the residents of another state go to Massachusetts, get married, and then decide to get divorced.  Because the couple lives in another state, there is no jurisdiction over the divorce in that state.  So will the parties' home state take juridiction over the divorce.

The Rhode Island courts now must decide that issue.  Stay tuned.

To read more about this issue, see the article on CNN

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Recently I have had a lot of conversations with other practitioners regarding where courts are going on the subject of Shared Physical Custody.  Interestingly enough, more and more judges seem to be starting cases with the question: "Why shouldn't I be entering an order for shared and equal physical custody".  In more and more families, both parents are working. And with children being so "scheduled", one parent just can't do everything.

Factors which I have found are looked to by the Courts in deciding this issue are:

1.  Whether the parents live in close proximity to one another.

2.  The involvement each parent had with the children prior to separation and since separation.

3.  Whether the parents are able to communicate.

4.  Whether the parents encourage and support the relationship of the other parent with the Children.

5.  Each party's work schedule.

Obviously, there are many others, as custody issues must be decided on the facts of each case.

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I just saw an article on CNN about a man in Seminole County, Florida who is required to pay lifetime alimony to his former spouse, a woman who now has undergone a sex change operation and is living as a man.  I'm scratching my head about this and am not sure that I have an opinion.  The legal expert retained by the local television news station was of the opinion that there was no way that the order for lifetime alimony should be modified or terminated, as the payment of alimony was based upon the parties' relationship prior to divorce, and nothing that occurred after divorce should matter.  Interesting, to say the least.

The video news story can be found on the CNN Law Page today.

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Once again a horrible result in a custody case.  In Dandridge, Tennessee, outside of Knoxville, it appears that a maternal grandfather shot and killed the paternal grandparents, and wounded the father.  Unbelievably, the boy who was the subject of the custody issues was present.  The mother had been indicted on drug charges with her new husband.

Obviously, this is an extreme example.  And a tragic one.  People really have to keep their lives in perspective.  The poor boy has a mother who is in or going to jail, two grandparents dead, and his father is in the hospital.

Hopefully, parents involved in custody cases can realize that putting their child first is the most important thing.  Although parents may not always agree with decisions, courts do their best in making decisions in the best interests of children.  And that regardless of any result, violence is never the answer. 

To read more about this story, read the story in the Knoxville News Sentinel.

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H. Beatty Chadwick, a corporate attorney, has been jailed for contempt since 1994 in Delaware County, Pennsylvania.  It is alleged that he transferred more than $2.0 million off-shore, and that he has refused to return the funds despite being ordered to do so by the Court.  Now he has made national news, as CNN issued a report on the story on September 17, 2006.  To read more, click here to see the CNN article.

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Where a Pennsylvania Dentist was murdered just days before signing the documents necessary to finalize his divorce, the Court found that the request of his Estate for the divorce to be granted posthumously must be denied.  In so holding, the Blair County judge quoted from a 1927 case, stating:

"A man can no more be divorced after he is dead than he can be married or condemned to death. Marriage is the union of two lives which can be dissolved either by death or by process of law, but after it has been dissolved in one of those ways, you cannot dissolve it again; you cannot untie a knot which has already been untied, ..."

To read more, see the article in the Pittsburgh Tribune-Review.

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It seems that more and more celebrity divorces are a mess.  Liza Minnelli, Paul McCartney and, most recently, Whitney Houston, all are in the news.  Why is this news?  Why are people so interested?  It really is a shame that their privacy cannot be respected, especially where children are involved.

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For various reasons, a woman may want to re-take her maiden name after a divorce.  Interestingly, under the Section 704 of Title 54 of the Pennsylvania Code, a person party to a divorce may resume using her prior surname (last name) prior to or subsequent to the entry of the divorce decree.  A judge does not even have to sign the form.  Most people thought the divorce had to be final before this could be done, but a few years ago the law was changed.  The form is a simple one, and is filed with the Prothonotoary in the county where the decree was issues.

Once the form is filed, a "time-stamped" copy needs to be given to official agencies, banks, etc. in order for the "new name" to be used.  The things you will want to change include:

• social security
• drivers' license
• bank accounts
• credit cards
• children's school records
• medical records, including health insurance cards

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Legal Custody is defined in Section 5302 of the Domestic Relations Code as:

The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.

This is very different from Physical Custody, which is defined in the same section as "The actual physical possession and control of a child."

Often new clients do not understand that in 99.9% of the cases, parents share legal custody.  This means that they need to discuss and agree on the major issues for their children.  New clients may try to tell me that their estranged spouse is incapable of participating in and/or making sound decisions.  My standard reply is to tell them that unless the other parent is a "murderer or an abuser", it is very unlikely that the client is going to secure sole legal custody through the court.  Obviously, my examples are "exaggerated", but they are illustrative of how difficult it is for one parent to secure the decision making power over the children's lives.

Issues which come up in this area include:

• What is a "major" decision?  Obviously, surgery is "major".  But is the decision as to whether the child plays baseball or lacrosse? 
• What if the parents can't agree?  How is the issue going to be decided? 
• What happens if one parent take unilateral action?

What may be major to a parent, may not be major to a court.  Courts see horrific things most days; do you really want to ask a judge to decide whether a child should be allowed to play a sport or take music lessons.  On the other hand, when an issue is a real one, e.g. the need for psychological treatment for a child to which one party refuses to consent, obviously court intervention is going to be necessary. 

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A line of credit on a house can be a dangerous thing.  Parties may have secured the line during their marriage, but may not have used it, or only used part of it.  Then they separate.  Who is responsible for the payment?  Can either party write a check from the line?

The party living in the home secured by the line has everything to lose.  Think about this:

• If there is a huge line on the house, since the party in possession of the house is presumed to be responsible for paying the mortgage and any other similar expense, this may be a huge added bill that has to be paid each month.
• If the line exists but has not been drawn down, the party in possession of the house does not want the other party to create a debt for which he/she may be responsible.

What can be done to protect yourself in this situation? 

• Control the check book for the Line.  Simple, but effective.
• Freeze the Line - Call the bank and find out what can be done.
• Close the Line - This may require paying the balance, but it can be done.
• Find out if the bank will permit the Line to be modified so that two signatures are required to draw.
• Seek a an agreement from the other party that no draws will be taken.  If no agreement can be reached, a Court Order may be necessary.

Not everything necessarily requires legal action.  Sometimes common sense can save the biggest headaches.

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Think about these scenarios:

1.  Parties have an infant child and separate. Mom was not working at the time of separation, and does not want to go back to work. How is child support to be calculated?

2.  Mom has two children from a prior relationship, remarries and has a new baby. With respect to her older children, she pays child support. Can she stay home with her new infant and, if so, does she still have to pay child support?

Obviously, these two are not the only scenarios to which the issue might arise as to whether a parent can stay home to care for a young child. Under Pennsylvania Law, there is a “Nurturing Parent Doctrine”, pursuant to which the mother in these scenarios may not have to continue to pay child support. The issues are very fact specific, but focus on several factors, including, but not limited to:

• the age and maturity of the child;
• the availability and adequacy of others who might assist the custodian-parent;
• the adequacy of available financial resources if the custodian-parent does remain in the home. 
• the mother’s perception that the welfare of the child is served by having a parent at home is to be accorded significant weight in the court’s calculation of its support order.
• the prior practice of the mother, i.e. what did she do when her older children were born?

There are several appellate cases on this issue, including the following:

Commonwealth ex rel. Wasiolek v. Wasiolek, 380 A.2d 400, 403 (Pa. Super. 1977).

Bender v. Bender, 444 A.2d 124, 125-26 (Pa. Super. 1982).

Atkinson v. Atkinson, 616 A.2d 22 (Pa. Super. 1992).

Kelly v. Kelly, 633 A.2d 218 (Pa. Super. 1993).

Depp v. Holland, 636 A.2d 204 (Pa. Super. 1994).

Frankenfield v. Feeser, 672 A.2d 1347 (Pa. Super. 1996).

McClain v. McClain, 872 A.2d 856 (Pa. Super. 2005).

Obviously, a parent looking at this issue should seek the advice of competent counsel since the issue is so fact specific.  

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Welcome

Welcome to the Pennsylvania Family Law Blog! I am excited that we have developed this blog and look forward to providing my insights into the law, updates of the law, and general information regarding Family Law Issues in Pennsylvania. I expect that readers will come from three major areas:

1.         Individuals going through the process in search of information;

2.         Accountants, psychologists and other professionals, seeking information to assist their clients; and

3.         Lawyers interested in issues.

I am going to do my best to keep this blog updated with information, interesting observations, and valuable links. I look forward to receiving your feedback on issues about which you need information and suggestions on how to better serve my readers.

For now, my job is to begin to get information up on the blog and that’s what I intend to do. 

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