Ours is an age where hyperbole has not only become accepted, it is almost universally embraced as a part of American culture, and among the chief advocates of hype is the financial service sector of our economy. We lived throughout the 1980s, 1990s and early 2000s in an age when one could not open a newspaper or magazine without reading the amazing returns on investment that could be achieved by investing with this fund or that. In 2008, when the stock market imploded there was some respite from this enfilade of data on returns. However, as the traditional mutual funds were beaten into retreat, they were quickly replaced by a new creature; the hedge fund. These new investment vehicles promised a faster, better, ride because they would trade with and, when right, against the market. Money fled to these funds despite some enormous loads and aggressive profit sharing demands on the part of the smart guys who established them.

2016 was a watershed. The Dow Jones index grew by 15%; the S&P 500 by 11% and the NASDAQ kept pace at 11%. Meanwhile Barclays Hedge Fund Index barely cracked 6% in a world where the “house” routinely takes 2% up front and 20% of performance. So the 6% hedge fund yield was probably closer to 4%. The three-year average for the Barclays is a measly 3%, making even Treasuries look attractive.

These are the elements of the market that get the hype. And they all have teams of public relations and advertising officials to spin the story their way. However, today’s big news comes from the seldom-heard giants of the investment industry; the defined benefit pension managers. They don’t advertise. In fact, they don’t take customer’s investments. They take public employee retirement contributions and are charged with the duty to make certain the government’s promise to pay monthly retirement payments are actuarially sound.

Today’s news is from CALPERS, the largest public employee pension fund in America. This California agency and its analogues throughout the US manage $3.7 trillion in funds. Their customers are governments that have promised retirees a specified payment every month for life. If they cannot meet their projections, they have to demand that state and local governments pony up larger tax payments to fill the gap. And those governments are already screaming at the large percentage of government budgets allocated to covering pension costs.

So what are the big boys saying? In California’s case, they expect annual returns averaging 6.2% for the next decade. Some years will be better, some worse as the projection is an average. After 10 years, they see returns moving back up towards 8%, but the lower returns in the short run will mean more stress on your local governments to increase taxes.

The Ohio Public Employees system has predictions not much different. 6.76% over the next 5-7 years but then a bounce back towards the 8% that California predicts. Canada and Europe in the past years had lowered their expected returns while the US pension plans retained more flowery predictions. The US plans did not anticipate how far and how long interest rates would crater. The long-term prognosis for higher overall rates of return is premised in large part on a gradual return to historic interest rates.

For public employees, the concern about underfunded defined benefit plans remains. Low rates of return in the past several years have a cascading effect because income projections were not met. The Rockefeller Institute reports that the likelihood of a shortfall in income to distribute is 10x what it was 30 years ago. Subpar returns mean that CALPERS pays out more in benefits today than it receives in retirement contributions. We wrote about this looming problem in May 2016. Recently we spoke with Mark Altschuler who runs Pension Analysis Consultants in Elkins Park, PA. While actuaries, like Mark can project things like present value, it is not within their customary orbit to try to evaluate whether pensions will be able to meet their contractual undertakings to pay each beneficiary the prescribed amount on time.

What does this mean for the divorce practitioner and the client? When looking at the historic rates of return on S&P stocks between 1928 and 2014 the average rate of return today is approximately 10%. Some of that return is consumed by inflation. The other factor demanding consideration is risk tolerance. In March 2000, the SP500 stood at 1,527. It did not return to that value until October 2007. It then fell by more than half and did not return to 1,527 until 2013. The only way to gird against these market fluctuations is to integrate investments in stocks with investments in less volatile bonds. This is strategy that major government pension and annuity managers must emulate. It is also a polestar for conservative money managers. The term “going for broke” can be a self-fulfilling prophecy in the world of investment. So while last year the S&P kicked out 11% and that is 1% more than the 1924-2014 historic average, it would be improvident to build a financial plan exclusively around indexed rates of return. If you choose to believe that kind of growth is sustainable on a long-term basis, we encourage you to read Robert Gordon’s Rise of American Growth (Princeton 2016). So, for the medium term, prepare for 6% returns and be thankful if you do better.

In what some may construe as an effort by the Pennsylvania Superior Court to salvage something positive out of 2016, an Opinion was issued today which effectively opens Pennsylvania’s family courts to dissolve out-of-state civil unions

The matter of Neyman v. Buckley (No. 2203 EDA 2015) arose out of Philadelphia County.  The parties were attempting to have their 2002 Vermont civil union dissolved in the Philadelphia Family Court.  The trial court, however, dismissed the divorce complaint related to the civil union on the basis that it did not have jurisdiction over the action.  The trial court based its decision on statutory language which established the court’s jurisdiction to divorce parties from the “bonds of matrimony” and, therefore, could not issue a decree or order dissolving the out-of-state civil union.

The other problem in this case, was that Pennsylvania County examined the Vermont code and saw the procedural separation between dissolving civil unions and marriages. In short, Vermont retained a legal distinction between marriages and civil unions, though they gave them the same rights and access to the family courts. It was on this basis that the Philadelphia court dismissed the complaint to dissolve the civil union and noted that the action sounded more specifically in the civil trial division (i.e. address the civil union as a contract).

Neither party was contesting the dissolution of their civil union. They entered into the union in July 2002 before same-sex marriage was legal and began living separate and apart five months later in December. Since then, they have been living in legal limbo without having residency in a state to dissolve their union or access to the court’s due to Pennsylvania’s Defense of Marriage Act (DOMA).

Many family law practitioners, myself included, have successfully dissolved civil unions in some counties, but those courts which did so in some ways hindered the clarification of this issue. Despite the decisions legalizing same-sex marriage and invalidating Pennsylvania’s DOMA, the state legislature has not updated the marriage and divorce codes to account for the new law of the land. Without legislative action, it would be the appellate courts which would shape the law and offer some precedence to clarify the question as to what types of unions can be addressed by the family courts.

Within this context, the Philadelphia court, in denying the dissolution of an uncontested, no economic issue case, did Pennsylvania law a tremendous favor: it created a test case for which the Superior Court could weigh the argument offered by the trial court and conclude that, “the legal properties of a Vermont civil union weigh in favor of recognizing such unions as the legal equivalent of marriage for purposes of dissolution under the [Pennsylvania] Divorce Code.” Citing prior case law (Himmelberger), the civil union has a distinct “odor of marriage” and that the only substantive difference between a civil union and a marriage are “sexual orientation and semantics.”

The strong Pennsylvania public policy in favor of granting comity to another state’s laws so long as they do not contradict those of the Commonwealth was also cited by the Superior Court.  Pennsylvania family courts “must recognize their Vermont civil union as the legal equivalent of a marriage for the purpose of dissolution.”

Accordingly, the Superior Court reversed the Philadelphia County dismissal of the complaint and remanded it back to the Family Court to be addressed under Pennsylvania Divorce law. Practically speaking, this decision means issuing a Decree dissolving their civil union upon application by the parties and unambiguously establishing the Family Courts as a venue for dissolving civil unions.

 

 

When this writer first began to practice matrimonial law in 1982, the period after November 1 of each year could be termed the “Quiet Time.” In those days, once Halloween had occurred people decided no matter how bad their situation, they would tough out the holidays of Thanksgiving and Christmas or Chanukah. They did so in order to minimize the disruption on their children, who justifiably saw the holidays as one of joy and family unity.

It is different today. In recent years we have been asked to do initial consultations even during the third and fourth weeks of December. This seems very odd but I have concluded that the arrival of year’s end and the holidays prompts people to take stock over the state of their marriages and to ask the difficult question: “Is this working?” And if that question prompts a negative reply it leads to the more difficult inquiry: “What next?”

Truth of the matter is that these are and should be very troubling questions. In 1980, when Pennsylvania became a “no fault” jurisdiction, the fear was that no fault would cause an explosion in the number of divorces and irrevocable damage to the institution of marriage. Thirty-five years of statistical data have shown that the explosion in divorce never occurred. Ironically, if there is an objective measure of how marriage was affected, it is shown in the number of people who decide to marry. The numbers tell us that divorce is down. But marriage is way down.

Meanwhile, the interviews we provide to people in November and December of each year tell us something more interesting. Most people we meet are clear that they don’t want to file for divorce or even start the process before 2017 arrives, but they are clearly troubled by where marriage has brought them and they want to know what divorce would mean for them and for their children.

They ask excellent questions. Many of these questions are economic. Those are easy because our lawyers have lots of experience with this kind of thing. But then we have lots of inquiries about their children and how they will be affected. Unlike money, children are tough to measure, especially from a distance. Obviously divorce is much more prevalent than it once was. So kids understand divorce in one sense because many of their classmates have had firsthand experience. But observing the divorce of your best friend in school is quite different than the firsthand experience of seeing your own parents dissolve the only marriage you have ever known close up.

From a distance we can say that children respond differently. Some kids seem completely unaffected by the breakup of a marriage. Others are profoundly affected. Age has little to do with it. We have witnessed eight year olds who tolerate their parents’ divorce as if it were a minor event while their seventeen-year-old brother is devastated.

In an odd twist we are also often asked by prospective clients whether they should divorce. Obviously, there is no objective test providing a definitive answer. What we do experience a fair measure of is an effort to evaluate whether personal happiness should be foregone “for the sake of the children.” In other words, should I just accept a miserable marriage for the next 10, 12, 16 years to spare the children the anguish of divorce.

This is a place where lawyers need to tread lightly just as physicians do in the world of pain management. Some of us pass out at the sign of blood. Others have survived being awake and alert during the amputation of a limb. Some people expect very little from marriage and don’t deeply experience the pain associated with a bad one. Their neighbors can become depressed to the point of self-harm by the same stimuli. So be wary of any attorney who has strong opinions either for or against your marital situation. They are not the patient in distress. You are.

Meanwhile, here are the questions you need to ponder when you feel the strong need to move on.

  1. How will each of my children be affected? If you ask a child whether he or she would want to see you separate, chances are that they will say they are against it. But then ask yourself, how much anxiety does this child experience living in a household where two parents no longer like each other. Many parents pretend that their children don’t know about the level of parental discord. Perhaps true but experience has taught me that it is the full time job of children to observe, evaluate and manipulate their parents during the 18 hours per day they are not in school. Don’t underestimate them.
  2. How will you be affected by sentencing yourself to another five, ten or fifteen years of unhappiness? For most of us, the damage of living in an unhappy marital situation is cumulative, just like smoking.
  3. Not that you care, but what is the effect on your spouse of living the “lie” for the same period you are. Perhaps you have a higher pain threshold. But when people are forced to live together while not liking each other, the effect is often more frequent and more serious “bad behavior.” Your children will witness all of this while you both tolerate it.
  4. What is the lesson the children get from a state of lasting armistice? Are you and your spouse each depriving yourselves and your children from experiencing marriage as a happy relationship? Many clients profess that they will never marry again so that the question is moot. Meanwhile our experience shows that most will move on to other relationships which provide differing degrees of satisfaction. But a question you have to grapple with is whether you would want your children to have a marital relationship similar to yours. Obviously, there is a faith element to this question. If you view marriage as a contract having divine qualities, the question may not require an answer at all. A higher being has determined that you will and should remain together and that this is required.

It is clear that the arrival of years’ end does prompt many people to evaluate the state of their marriage and its future prospects. Attorneys can provide useful answers to the worldly questions of how property division, custody and support issues work. But imbedded in these questions are far greater ones; questions for which lawyers cannot and should not pretend to have easy answers.

We live in a day when reported (i.e. precedential) decisions are rare and decisions touching upon important philosophical differences are like hen’s teeth. But on November 18 the planets aligned to give us Hanrahan v. Bakker, a 2-1 panel decision with Judges Ford Elliott and Dubow in the majority and Jenkins in dissent. The subject; how much child support is “enough” when the combined incomes exceed $15,000,000.

We have seen this before. Branch v. Jackson involved a major league baseball player. In that case there was a large support order and money deposited in an UTMA account for an unspecified “later.” This writer was troubled by support paid into trust because that really does transfigure the basic premise of the income shares approach to child support. But the result could be explained when one sees that the average career span of a baseball player in the majors is about 5.5 years. Statistics tell us that the rainy day is coming and that for professional athletes there is rarely a “second act.” Meanwhile we know that childhood is 18 years by law.

Hanrahan is different. Both parties are lawyers sharing physical custody of two children. Mother earned approximately $105-180,000. Father’s earnings as a specialist in corporate takeovers with an established Wilmington law firm ran a gamut from 1,083,000 in 2010, $4,010,000 in 2009; $2,303,000 in 2011 and $15,592,000 in 2012.

The parties divorced in 2009 after 17 years of marriage. The opinion references but does not describe income or lifestyle during the marriage. The property settlement agreement called for an annual exchange of tax returns and an annual adjustment of support based on net income and Pennsylvania guidelines. It also contained a counsel fee provision should there be a breach of the agreement.

All proceeded smoothly in 2009 which is to say the calculation was done and the support adjusted to $15,878 per month. In 2010 father’s income declined sharply but again they followed the guideline formula and support fell to $3700 a month. In 2011 Father’s income was $2,303,000 and the support was calculated as $7,851 per month.

2012 was the year the mold broke. With $15,600,000 in income and mother’s reported as $105,000 Father wrote to Mother stating that he ran the calculation but that the number was “way beyond” any realistic reasonable needs. He also generously proposed not to reduce the support below $7,851 per month. It should be noted that Father also covered about $6,000 a month in tuitions, camp, and activities in addition to the support specified by calculation.

To complicate matters Father also took $2,500,000 of the 2012 earnings and clapped it into an irrevocable trust for the children. As if that doesn’t make it complex enough, the partners of his firm agreed to fund a scholarship in honor of the law firm’s founding partner. The “contribution” to this cause for Father was $150,000 but the firm reimbursed him for the contribution.

As one might expect, $14,000 a month in support and direct payments did not seem adequate to Mother and she filed to enforce the agreement. Father filed an unspecified counterclaim and the matter was heard in January, 2015. Over Father’s objection that the income level made the guideline presumptive amount under Pa. R.C.P. 1910.16-3.1 absurdly unrealistic, the Delaware County Common Pleas Court came back with an order ranging from $52-59,000 per month from May 2013 through April 2014. But the Court simultaneously ordered Mother to deposit $30,000 per month from that sum into Uniform Transfer to Minor Act accounts for the children where she would act as custodian. It also found that Father had breached the agreement and made an award of attorneys’ fees pursuant to the agreement. Both parties appealed.

Mother’s appeal settled on the issue of putting the support money into an UTMA account. Her argument was that every other support order in Pennsylvania affords a recipient unfettered access to the support awarded. On this subject the majority agreed, noting that children should not be made to wait for child support and that UTMA is a gifting mechanism with a trust aspect in contrast to child support which is an obligation of parenthood. The UTMA statute declares that these “gifts” are not a substitution for child support. 20 Pa.C.S. 5314(c). The UTMA funds are secondary to the underlying duty to support from current resources. Sternlicht v. Sternlicht 822 A.2d 732,737 (Pa.Super, 2003) aff’d 876 A.2d 904 (Pa. 2005). That aspect of the order was reversed.

The trial court had made a downward deviation in the support amount by reason of the $2,500,000 Father had deposited into trust for the children. Mother asserted that this also was an unwarranted intrusion into the support formula. The trial court had reviewed the deviation factors under Pa.R.C.P. 1910.16-3.1(a)(3) and concluded that the trust was a “relevant factor” warranting deviation. Here the Superior Court again relied upon cases noting that the support obligation was not reduced because of the child’s own property. This contribution was made voluntarily at a time when Father knew he had a child support obligation. See Portugal v. Portugal, 798 A.2d 246 (Pa. Super, 2002)(a parent’s voluntary retirement contributions are still income available for support). The downward deviation was reversed.

On the counsel fee award, the trial court had found this to be a reasonable dispute and not a breach of the agreement. The Superior Court disagreed finding that Father covenanted to pay according to the guidelines and that his position that the guidelines were now absurd or confiscatory was without legal basis. This denial of fees was also reversed.

Father’s appeal starts with a claim that the 1994 decision in Ball v. Minnick, 648 A.2d 1192 (Pa. 1992) somehow eliminated reasonable needs as a standard for support. The Superior Court held that guidelines and the rebuttable presumption of their applicability had been part of a statutory scheme approved by Act 66 in 1985 and remained the law. The income shares model had been adopted in 1989. Ball v. Minnick had established that where the guidelines stopped (then at $10,000 combined net income) the formula of Melzer v. Witsberger, 480 A.2d A.2d 991 (Pa. 1984) would prevail. But Ball was overruled in 2010 by adoption of Pa. R.C.P. 1910-3.1 which stated that all support cases were to be first analyzed through an income shares model after which the courts could evaluate whether deviation was appropriate. Father placed his reliance upon use of the terms “reasonable needs” in the statutory framework of 23 Pa.C.S. 4322. But the Superior Court responded that the guideline formula adopted in the Rules was the formula adopted for determining reasonable needs. It further noted that reasonable needs were not a deviation factor specified in the existing rules.

Along the same lines Father asserted the deviation was appropriate because this support result was an aberration of the standard of living of the parties. Pa.R.C.P. 1910.16-5(b)(7). He also borrowed from the trial court’s reliance on “other factors” to deviate. 1910.16-5(b)(9). The trial court appears to have followed the rainy day reasoning of Branch v. Jackson. Essentially, the argument there was that funds needed to be set aside for a day when incomes were likely to be reduced. The amended trial court order referenced the children’s’ post majority needs. The analysis here seems somewhat muddled but the clear import is that post majority needs and standards of living are not part of a child support analysis.

What makes this case interesting is not so much the result but the trend. We are seeing lots of disparity in annual earnings on the part of more and more people. In this case, even Mother’s income varied markedly. The support amount (excluding the add ons) over three years varied from $3,700 to $59,000 a month. Assuming a caring, honest and intelligent recipient what is that person to do. We can hope the payee would not spend every dollar received, but we are trusting that the right thing will be done with some fairly astronomical levels of child support. If the payee took the excess over the mean level of support (roughly $8300 a month) and purchased a $500,000 home with the excess cash accumulated over the 12 months of “surplus” whose house is it when the children are emancipated.

When large sums like that in Hanrahan come into play, would it not make sense for the court to appoint a guardian ad litem to at least make some suggestions or perhaps ask some questions. Certainly this should not be an appointment to wrest control of the support from the payee but we have all heard the stories, whether apocryphal or not of fortunes wasted on cashmere socks and fast cars. As a business lawyer Mr. Hanrahan probably still has a few more seasons in the big leagues of mergers and acquisitions. But wide receiver Michael Jackson was drafted in 1991 and finished in 1998. We don’t know how Ms. Branch’s children by Mr. Jackson ended up but even the best of us certainly would be tempted to think that the father of her children might become the next Jerry Rice (20 seasons). If the money we call child support really is for the kids, some caution should be taken in circumstances where the income level is erratic and the source fleeting. A GAL would be money well spent to assure that children do not ride the road from rags to riches back to rags when that calamity could be avoided.

The dissenting opinion of Judge Jenkins would go even farther. She believed that a downward justification was warranted based upon the funding of the trust and she also approved of the notion that it was in the best interests of the children for funds to be segregated into a UTMA account.

I was researching material for this blog when courtesy of some “cookie” embedded in a website, I was treated to an opportunity to save substantially on my divorce legal fees by signing on for a service that offered me “al a carte” divorce services by law firms standing by to help me without the “unnecessary” cost associated with full service divorce representation. Sounds appealing, right? Why buy the whole car when only the tires need to be replaced?

So as the reader has probably already surmised, this piece is being written by one of those pricey full service divorce lawyers. Thus, as the Latin’s would say Caveat emptor (let the buyer or in this case the reader, beware).

The typical person in an unhappy marriage faces a myriad of issues. Custody. Division of property and the debt that accompanies it. Division of future assets like pensions or other retirement plans; child support; spousal support; alimony; health insurance; life insurance. The list goes on but you get the point.

If each of these issues was wholly independent of the other, a la carte divorce services might make more sense. But, that is usually not the case. So let’s take custody. That should be an easy topic to sever from the rest, right? Kids are not for sale and so money issues should not really tie into custody.

Well, not so fast. Do you have primary custody? Then you will probably be a head of household for tax rates and you will be able to deduct the kids on your return even though the other parent contributes more to child support than you do. Do you have shared custody? Then your tax treatment is probably going to be different. Do you have the kiddies more than 146 nights per year? Then your support is subject to adjustment. If you have primary custody of minor children that’s a reason why you should get a greater percentage of the marital estate. At least that’s what the statute says. Spousal support and alimony pendent lite (which is to say spousal support with a Latin spelling) are calculated differently if you are getting child support and you get child support because of how much custody you have of your children. The parent with primary custody will want to ask whether there is life or disability insurance should the other parent experience disability or its more lasting cousin, death.

So you hire a la carte lawyer to help you draft a custody stipulation. Is that lawyer also going to assess and advise on the issues I just described? You want to say yes but you know better.

Let’s use property division as another example. Mother keeps the house subject to the mortgage because she will have primary custody. Do you want Mother to refinance the house to get your name off the mortgage or are you OK with having an extra $200,000 in debt sitting on your Experian credit report for a house that’s now in her name? And if Mother takes up with Mr. Loser and together they decide not to pay the mortgage on that home where the kids live, do you know whose credit rating is going to be dinged and who might be liable if the house sells for less than the principal balance due in foreclosure? One guess only.

In fairy tales, everything turns out right. That’s why you don’t read a lot about lawyers in books by the Grimm Brothers or Hans Christian Andersen. Lawyers came about because things go wrong. Like the parent who signed up to pay for his kids’ college in 2006 thinking that he had a solid job paying him $200,000 a year. He loved his kids and with $12,000 a month in after tax income he felt confident that he could afford it. But then came the Great Recession and it has now been eight years since he cracked $140,000 a year in income. Meanwhile his loving children all chose to go to private universities and so far they have averaged 6 years to complete a four-year program. He didn’t need a lawyer, right? So now he wanders the streets with a $250,000 judgment accruing interest at 6% that has almost no chance of being addressed in a bankruptcy. A lawyer might have suggested capitating the cost of enrollment, the length of enrollment and a failsafe provision in case he lost his job. But, this 21st century Dr. Pangloss trusted that all would be well.

Some readers will call these war stories a form of fear mongering. Bad things don’t always happen. The entire life insurance industry is built around the premise that in any given year only a small fraction of people actually die. Only a small portion of legal agreements blow up in bad ways. But when they do, they can inflict a lifetime of financial pain. The trouble with on line or over the phone legal advice is that you’ll never be able to find the lawyer or algorithm that gave it to you when it turns out badly.

We’ve reported on the United States v. Elonis in the past. This case involved a Northampton County man who made a series of threats on his Facebook page directed at his estranged wife, his employer, and an FBI agent who came to investigate a threat he made to attack an elementary school. Elonis, in his defense, claimed that his posts were not, in fact, threats, but rap lyrics and forms of artistic expression.

He was nonetheless charged with under 18 U.S.C. 875(c) which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. He was eventually convicted at trial of four out of the five charges against him and sentenced to forty-four (44) months in jail. He conviction was upheld by through the appellate system and eventually appealed to the U.S. Supreme Court who granted cert to hear his appeal. The Supreme Court overturned his conviction, but did not address any of the First Amendment claims or other issues raised on appeal except for what they viewed as an error in the jury instruction identifying the standard the jury was to apply to the offenses. Helpfully, however, Justice Samuel Alito articulated in a concurring/dissenting opinion a road map for the Third Circuit Court of Appeals – the court where the Supreme Court was remanding the case for further consideration – on how to have Elonis conviction upheld.

The Third Circuit did just that, finding that the jury instruction amounted to harmless error and he would have been convicted under either of the discussed standards since there was indisputable evidence in the record that Elonis intended his wife and others to perceive the statements as threats.

The reason this case is relevant to family law cases is that Elonis conviction proves that social media posts will be closely scrutinized by the courts to determine whether or not they can be construed as threats. There is no special First Amendment protection attached to them and context will have a huge affect on whether or not a statement will be interpreted as art or as a threat of harm. In this case, there can be little confusion that Elonis wanted to inflict fear and anxiety on his estranged wife and others around him. His threat to attack an elementary school with the intent to die in “blaze of glory” was concerning enough to prompt a visit from the FBI – an episode that prompted Elonis to “creatively write” and post shortly thereafter a scenario where he uses a knife to quickly slit the agent’s throat as she stood on his porch.

In short, even if Elonis had no intention of carrying out these acts, the trial court and Third Circuit found that he clearly intended them to be threats and whether that determination is made by a reasonable person or if his acts were interpreted as reckless was immaterial to the fact they were made and with a desired affect. Issues of the First Amendment and free speech were never considered and, frankly, I don’t think any court will be looking to carve out violent lyrics as being a protected class of speech. For every Eminem who wins Grammys for writing vividly violent verses about his ex-wife, there will be hundreds or thousands of people who try to circumvent their PFA Orders or try to intimidate an ex-partner through social media or other means and use the facade of “art” and “lyrics” to shield themselves from prosecution or being found to have violated a protective order.

What Court wants to define the line between art and threats? Quite simply, the courts – like many of us – don’t know how to define art, but know it when we see it. Similarly, we might not be able to define an easy catch-all definition of what constitutes a threat over social media, but we can discern context and content make those determinations on a case-by-case basis to ensure both the accused and accuser are protected under the law.

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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.

 

There are times when two conversations with two wholly separate individuals causes a person to distill some interesting new thoughts. Earlier this month I had lunch with a woman who has long run the intake program for the Domestic Relations Office in Chester County. We were discussing the triumphs and tragedies associated with the daily business of processing support cases where both emotions and money are at stake. My lunch companion, Rae Morgan, observed that one of the real problems they encounter is that because the litigants are so nervous about going to court over support they lose their ability to listen and appropriately process even simple instructions.

Two weeks later my lunch companion was Judge Daniel Clifford from Montgomery County. Dan is new to the judging business but a long time divorce practitioner before he was elected to the bench in January of this year. He has been hearing a lot of custody cases and we spent some time discussing how his perspective has changed as he transitioned from before the bench to behind it. His comments echoed those of Rae Morgan. Namely, that he wishes that litigants could observe their own testimony because in many instances what they were advocating was really not consistent with a child’s best interest. Put another way, their anxiety about the hearing often deprived them of what might otherwise seem common sense.

In both instances we spoke about how lawyers can try to help people understand how the judicial process works and how they could be less reactive to it. But then today my inbox brought me an article from Popsugar captioned “30 Things that Children of Divorce Wish Their Parents Knew” I commend every parent to take a few minutes to look at this because a great deal of it would address the kinds of concerns Judge Clifford was talking about in a custody setting. I will edit what I saw as editors tend to do. Their 30 became my 15.

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”
  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.
  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.
  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.
  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.
  6. It really, really hurts when you don’t show up for something we have scheduled.
  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”
  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.
  9. I am not staying with you to provide information about what the other parent is doing.
  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.
  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.
  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.
  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.
  14. If there is bad news, please don’t ask me to be the courier.
  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

On September 26, the Pennsylvania Senate returned to session and adopted amendments to the Pennsylvania Divorce Code that reduced the period by which a party can secure a no-fault divorce on the basis of irretrievable breakdown from two years to one. The bill is awaiting signature by Governor Wolf.

When first enacted in 1980 the Divorce Code required a three-year separation before a divorce could be obtained on no-fault grounds without consent. In 1988 the law was amended to reduce the waiting period to two years. Legislation to further reduce the wait was introduced in February, 2015 and secured approval from the House of Representatives in June of 2016.

The new law does not affect pending divorces and does not become effective until 60 days after Governor Wolf signs the bill. But it is a major change and will bring improvement to the lives of many for whom divorce is a financially and emotionally draining life event. Ironically, while many argue that this will only promote divorce, the greatest number of divorces to be processed in any one year, came in 1979, the year before no fault came into play. Today the number of divorces is much lower than in the 1980s and 1990s but the real cause for that statistic may be the reluctance of millennials to embrace marriage as the sine qua non of a meaningful relationship.

There is also an amendment to Section 3323(C.1) of the Divorce Code related to bifurcation. It mandates that Courts evaluate the impact of a proposed bifurcation on any minor children of the marriage as it relates to the economics of the case.

This author is not much for the world of Hollywood although this law firm does have an office there. But in reviewing the general news of the day, the screen divulged that the divorce involving Halle Berry and Olivier Martinez is now on hold, nine months after that party started.

This is a new phenomenon affecting the ordinary world as well. We have several cases where the parties have either found a reason to stop the presses of divorce filings or just take a pause to refresh.

In olden times, like the 20th century, a break in the action was very rare.  Once a split occurred both parties tended to pound away until the case was either litigated or settled.  There was no “Finland” or Christmas 1914 when soldiers from the Allies and Axis gathered to sing “Silent Night”.  But today, people are doing a better job of taking stock in the havoc that divorce can wreak and sometimes they realize that things were not as bad as they seemed or that the man or woman who may have enticed a separation was not “the best” or even “better.”

The problem with a break is a financial one. For people securing divorce, trust levels are low and the job of the lawyer is to identify the assets that existed at or about the time of separation and make certain they don’t disappear.  That can be hard enough to do when the couple are unhappily split but when they re-unite only to divide once again, it is the task of the lawyer and the forensic accountant to make certain that during the Summer of Love or reconciliation no one stole or dissipated the assets to be divided.  In many instances as well, reconciliation prompts decisions to buy a new home or to take the dream vacation that the couple always wanted.  If the marriage survives, the couple can typically absorb that financial wave.  But if things don’t work out, the financial burdens are now greater and, as we all know, houses can’t be split down the middle.

So if you decide to take a break either from exhaustion or out of renewed affection, just be certain to keep it real and maintain very careful records of your assets and expenses.

One other note. There certainly was plenty of news during the Johnny Depp/Amber Heard controversy that erupted this spring with allegations of physical violence.  What made this matter all the more interesting is the fact that for both participants there was a lot at stake.  Here were two people with enormously lucrative star power whose agents no doubt grimaced when the abuse case was filed.  The risk was that either or both would be found to be violent or dishonest in their statements as to what occurred.  The public tends to be tolerant of what celebrities do but no one ever got a lucrative role for unsocial behavior.  Although there was a dust up at the end about “how” Depp paid the settlement, the end was otherwise peaceable and the brand names remain bankable.  Even real world clients need to realize that while there is undeniable power in getting out the whole truth that truth can come with very drastic consequence.

We have written before about the subject of when and how a person can be in “contempt” of a court order. The word itself is riddled with often misunderstood meaning.  What could be worse than having a court decide that you are contemptible?

In the past week I have been called to court to prosecute or defend two of these cases. The first instance involved a request to find my client in contempt of a custody order.  The court where the matter was heard summons people to a non-record hearing where a hearing officer either recommends or denies a request for a finding of contempt.  The hearings are scheduled one per hour and if you don’t like the recommendation you take an appeal and have a record hearing before a judge.  The typical remedy of make up time for lost custody, an award of $118 in costs and a $200-300 fine makes it such that the game is not worth the candle.  I recommended to my client to do what he wanted as Step 1 would cost $1000-2000 in attorney time and an appeal would consume that much and more.  Who wins contempt proceedings?  Almost without exception it is the party who has superior financial resources. The litigant with $50,000 in net earnings has twice the staying power of the one making $25,000 and the remedies are pathetically weak.  So if you want to exhaust your opponent financially, spurious or weak contempt proceedings and appeals are a great way to win a custody war by attrition.

This week was a petition to enforce a prior court order in divorce. I had the enforcing side and the spouse had been held in contempt on at least two prior occasions for ignoring an order to sell a house. The most recent petition was filed after the house was finally sold while in foreclosure and the actual damages could be calculated and assessed as the hemorrhaging had ended.  The petition to assess the damages had been filed almost 90 days earlier but, the Respondent waited until the day before the hearing to retain counsel.  That begot a request for a continuance to prepare.

My newfound opposing counsel is resourceful. As I anticipated she came to court ready to challenge every paragraph of the petition and to assert defenses that might have had some traction two or more years ago but were effectively waived by the fact that they should have been raised in prior proceedings.  But in contempt court the rules work to the advantage of the party who plays games.  You see, they are entitled to a specific pleading setting forth how they violated the court’s orders.  Do they have to specify their defenses?  Not in Pennsylvania.  The joke is on the party seeking to enforce the order because the responding party needs to do nothing except appear in court on the appointed day. So in my case, we killed three hours of time while new counsel asserted defenses and demanded “proofs” never before articulated.  In candor, some of them had merit.  But whether the defense arguments were good, bad or indifferent, the party prosecuting the contempt never gets to see or hear about them until the case is called.  The cost of preparing a contempt hearing is always unnecessarily high because the person prosecuting the case has to conjure what the defenses might be.  Why force a party to explain why he or she disobeyed a court order or put in writing the reasons their conduct did not violate the order?  That would be efficient.

Then we get to the remedies. In under Section 3502(e)(7) a divorce setting you can at least claim attorneys fees.  But what about damages caused by a party’s refusal to comply with a court order?  You won’t find that remedy in the statute.  Support law is even worse.  Section 4345 allows 180 days of county subsidized imprisonment, a fine not to exceed $1,000 which is payable to the Court and up to a year of taxpayer funded probation.  You have to go to Section 4351(b) to get reasonable fees and costs and you have to prove the obligor did not have good cause for his failure to comply.  Once again, burden is not on the person with the duty to comply but on the person supposedly benefiting from the award.  Custody violations are covered by Section 5339 and impose the same standard as 42 Pa.C.S. 2503.  The action must be obdurate, vexatious, repetitive or in bad faith. Pa.R.C.P. 1915.12’s notice for hearing makes no reference to counsel fees as a remedy which, of course, creates a due process problem in its own right should an award be made.

The statute and the rules need to make it clear that failure to obey costs money and lots of it. The sanction of a fine or award for failure to comply should be monetary and have a temporal element. When the message gets out that failure costs $25 a day or $250 a day, people will pay attention.  Putting parents and divorcing people in prison or on parole only punishes the taxpayer without corresponding benefit to the innocent party victimized by the non-compliance.  But the starting point is to force litigants to frame the issues in writing before anyone enters the courthouse.  It takes what is supposed to be a pointed procedure and dulls it beyond recognition.