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

Like most litigants, the end result and the cost of legal representation are among the most important concerns of anyone involved in a family law dispute. With these concerns in mind, clients frequently ask me if there is anything they can or should be doing to reduce the time I need to spend on their case or to help move things forward. The answer is a resounding “Yes!”  Here are 14 tips on how to be a good family law client and, at the same time, help your attorney achieve the best possible result without incurring excessive cost:

1. In advance of the first meeting with your attorney, assemble as much relevant documentation as possible. For instance, in a typical divorce case, this would include (at a minimum) complete copies of recent tax returns, pay stubs for both you and your spouse, a detailed list of all assets and liabilities, and any legal paperwork already filed and/or served upon you.
2. Speaking of documentation, organize every piece of paper that you give to your attorney.  Documents should be stapled, labeled and assembled in an orderly fashion.  Keep in mind that your attorney and his/her staff will do whatever is necessary to organize the documentation that you provide to him/her if you don't do so. It will, however, take time and cost money.
3. Keep a detailed diary of all significant events pertaining to your case and make sure to share copies with your attorney. A "Week-at-a-Glance" calendar often serves this purpose well.  This may be especially important in a custody case.  Your memory may fade with time, but a well-kept diary can be used to refresh your recollection prior to and/or during a hearing.  Additionally, your attorney can use your diary to assist in preparing your testimony in advance of a hearing.
4. A picture is worth a thousand words.  Besides documenting things in your diary, document what you can with photographs and/or videos.  For instance, if you decide to move out of the marital residence, take photographs of the condition of the residence and all property that you left behind.
5. Ask questions.  There is no such thing as a stupid question.  More often than not, questions from clients are highly relevant and serve as a basis for helping to frame out the issues and develop strategies.
6. If you need to discuss non-legal issues with someone, you may not want to call your attorney.   His/her hourly rate is probably much higher than a therapist's, and the therapist probably is better equipped to handle the issue.  While your attorney may be a very good listener, it will be to your economic and emotional advantage to discuss non-legal issues with your therapist, family members, friends, priest, rabbi, pastor, etc. 
7. Do your best to pay your attorney’s bills on a timely basis.  If you cannot pay a bill within a reasonable amount of time, call your attorney and ask to work out some payment arrangements.  If you are making a genuine effort, most attorneys will be understanding and work with you.
8. Promptly respond to calls and inquiries from your attorney. If it was not important, your  attorney would not be contacting you. Furthermore, if you are not being responsive to your attorney, he/she will have no choice but to spend his/her time and your money trying to get a response. 
9. When you leave a message for your attorney (either on voicemail or through a secretary) leave your phone number and the time when you will be available to speak. While your attorney likely has your number, it will take less time for your attorney to call you back if he/she does not have to find your number. This is especially true if your attorney is not in his/her office. 
10. If you have left messages for your attorney and have not received a response in a reasonable period of time, realize that there is probably a good reason why he/she has not returned your call (i.e., tied up in court or meetings, or handling an emergency situation). If the reason for your call is of an urgent nature, do not hesitate to explain the situation to your attorney’s secretary and/or ask if you can speak with another attorney in the firm. If your call is not urgent, ask your attorney’s secretary when she expects the attorney to be available so that you can call again or ask if an appointment can be placed in the attorney’s calendar for a phone conference. 
11. Do not believe everything that you hear from your spouse, family and friends as it pertains to your case and the law. Even though your spouse may act like he/she is trying to be accommodating, the reality is that he/she is likely out to get the best possible result for himself/herself. Similarly, realize that every case is different. Just because your friend’s cousin got a particular result does not mean that you will get a similar result. 
12. Do not sign or agree to anything without first speaking with your attorney. Attorneys are usually in favor of parties speaking and trying to reach amicable resolutions between themselves. An attorney, however, can and will help you determine if the terms discussed are in your best interest. There is nothing wrong with telling the opposing party that you need some time to think about it and will get back to them after speaking with your attorney. If the opposing party is pushing you to sign something on the spot, be suspect. 
13. Be discreet and resist the urge to deliberately annoy or antagonize your spouse. If you do or say something that you know will annoy your spouse, be prepared for appropriate retaliation. Also be prepared to pay your attorney who will, no doubt, get a call from the opposing counsel when your spouse calls to complain about your behavior. 
14. Last, but not least, be candid and truthful with your attorney. Attorneys do not like surprises. If your Attorney is well-informed, he/she can be fully prepared to deal with potentially damaging information if and when it is raised by the other side.
    

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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For good reason, most people have concerns about their children during their divorce proceedings.  No parent wants their child to be affected by divorce, so here are some tips from a divorce attorney’s perspective to help minimize the effect on your children. 

1. Remember that your spouse is your children’s mother or father. This will help put things in perspective – even though you no longer have a relationship with your spouse, your child has a right to that relationship. One of the things we always remind clients is "but for that person who right now you detest, that beautiful child who you would not trade for anything in the world, would not exist".
2. Never speak badly of your spouse. Children are adept at recognizing the undertones of your comments, and any negative inference regarding their mother or father by you could alienate you and your child. 
3. Never let money affect your relationship with your children. Your relationship with your child is independent from the finances, whether you are paying or receiving child support. 
4. Do not send your spouse notes/information through your child or your child’s backpack. This is a small part of putting your child in the middle, and it will only get worse. In this age of technology, e-mails are an easy, appropriate and private way to communicate directly with your spouse, so that the children do not have to be involved. (Although remember to be careful what you write in your e-mail – see Charles J. Meyer’s blog dated April 20, 2007). 
5. Be reasonable. I am a firm believer that even if your spouse is not reasonable that, in the long run, you will be better off if you are reasonable.  Your children will recognize it, and if it comes down to it, the court will recognize it.

There are lots of resources for parents these days to help with their children during and after divorce – books, psychologists, co-parenting counselors, etc.  If you need to do so, utilize the resources available to you.  And of course, you can always ask your attorney’s opinion.

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Generally, Pennsylvania law provides that the parent who has primary physical custody of the child is entitled to claim the dependency exemption, and the child tax credit, on his or her income tax return.  If the parents share physical custody, the parent who earns more income is entitled to claim these tax benefits. However, this is negotiable in divorce and child support actions.

The ability to claim the child on your income tax return can benefit a parent by changing the filing status from “single” or “married filing separately” to “head of household”, a more beneficial filing status under the tax code.  This may decrease the amount of tax you owe.  However, the dependency exemption may be a greater benefit to the non-custodial parent and, therefore, may be worth negotiating in a divorce or support action.

For example, if claiming the child as a dependent will save the non-custodial parent $5,000.00 in tax, but will only save the custodial parent $1,000.00 in tax, then the non-custodial parent should claim the child as a dependent and pay the custodial parent the $1,000.00 she would otherwise would have saved.  The net savings to the non-custodial parent is $4,000.00. (And, a good lawyer could even negotiate sharing this $4,000.00 tax savings between the parties!)

A second benefit for the parent claiming the child is the Child Tax Credit.  The Child Tax Credit allows you to claim $1,000.00 for each qualifying child. So, in a family with three children, the credit is worth $3,000.00.  This credit also reduces the tax you owe.  However, the Child Tax Credit is phased out for certain higher income tax payers.  Specifically, the amount of the credit allowable is reduced by $50.00 for each $1,000.00 of modified adjusted gross income above a threshold amount.  That threshold amount is $110,00.00 on a joint return, $75,000.00 for single and head of household filers, and $55,000.00 for married individuals who file separate returns.  This means, for example, that a married couple filing jointly who have one qualifying child would be entitled to a credit of $950.00 if their modified adjusted gross income is more than $110,000.00, but not more than $111,000.00.  They lose the credit completely if their modified adjusted gross income is more than $129,000.00.

It is important to understand how the Filing Status, Dependency Exemption and Child Tax Credit can affect your personal income tax return.  It also is important to understand how they can affect the other parent’s income tax return. Your accountant and attorney should discuss these tax benefits and how they will affect your tax returns before you file your 2007 taxes, and in the foreseeable future.  There are very specific financial benefits that could be negotiated in your divorce and support actions, in a way that positively affects both you and your spouse or former spouse.  It always feels good to find a way to pay less taxes, even if it saves your "ex" some money too.

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It is common knowledge that 50% of all marriages end in divorce. However, what most people do not realize is that 50% of all marriages – not people – end in divorce.  This statistic is so high due to the divorce rate in second, third (and if you dare, fourth, fifth, ...) marriages.  One question many people ask is, “How do I protect myself in the event my marriage does not last?”.  The answer is with a Prenuptial Agreement. Prenuptial agreements are not just for the rich and famous anymore.

So, who needs a prenuptial agreement? Anyone can benefit from a prenuptial agreement, but I strongly recommend one if you:

• Have been divorced before
• Have children from a prior relationship
• Own your own business
• Have ownership in a family business
• Have family money
• Are expecting a significant inheritance or monetary gift
• Are marrying someone of significant less net worth
• Earn significantly more income than your partner
• Are the beneficiary of a trust
• Acquired significant assets prior to your marriage

The purpose of a prenuptial agreement is to prevent divorce litigation and provide the couple the ability to agree, in advance of any emotion or conflict inherent in a divorce, upon the distribution of their separate and marital assets, the payment of support or alimony, and the allocation of costs in the event of a divorce.

A prenuptial agreement should be drafted well in advance of a wedding, preferably at least three months.  This gives the parties and their attorneys the opportunity to fully negotiate and draft the document.  However, nothing in Pennsylvania law prevents a prenuptial agreement from being signed the day before a ceremony if advanced planning was not possible.

There is a presumption in Pennsylvania law that prenuptial agreements are valid if they are signed voluntarily and with full disclosure of the assets and income of both parties.  Before any meeting to discuss a prenuptial agreement, I advise my clients to prepare a list of all of their assets and debts, and suggest that they have their partner do the same.

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In some cases, I am the 2nd lawyer in a case.  The "new" client comes into my office and asks what I can do because obviously the courts "favor the other sex".  I say this because many women cannot believe how the family courts favor men, and many men cannot believe how the family courts favor women.

What are the scenarios where one sex may feel cheated?  They include some of the following:

• Alimony is awarded for a substantial period of time (Women are obviously favored).
• Alimony is awarded for a short period of time (Men are obviously favored).
• The asset division is 50-50 (Depends who you are or how big the estate is to figure out who was favored).
• The percentage of the asset division is tilted toward one spouse (Obviously the court favored the sex of the spouse with the higher percentage).
• The Court awarded the father shared and equal custody (Men are favored).
• The Court awarded Mother primary custody (Women are favored).

I don't know about you, but this list looks silly to me.  My experience is that neither sex wins more than the other - that courts do their best to try to figure out what is right.  Are "mistakes" made?  Sure they are.  Even more reason, as I have written in prior blog posts, to hire an experienced, reasonable lawyer, who knows what he/she is doing, and to hope that your spouse does the same thing, so that you can work toward an amicable settlement and get on with your life.

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The following is my "Top 7" list of "family law misconceptions" that I frequently hear from new or prospective clients.  The list is by no means exhaustive and assumes that there is no pre or post-nuptial agreement in place which might already address the issue.  Likewise, as other states have different laws and procedures, this list is limited to Pennsylvania.

1. “There is no alimony in Pennsylvania”.  I am constantly amazed at how many new clients believe that alimony does not exist in Pennsylvania.  Let me set the record straight: alimony is alive and kicking in Pennsylvania.  Section 3701(a) of the Pennsylvania Divorce Code provides that “[w]here a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.”
2. “If my spouse committed adultery, I will not be obligated to pay him/her alimony”.  Of the clients who are aware of the existence of alimony in Pennsylvania, many believe that adultery is a bar to a claim for alimony.  Marital misconduct occurring during marriage is only one of 17 factors under §3701(b) of the Divorce Code to be considered in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony.  It is not a bar, just a factor.
3. “It only takes 90 days to get a divorce”.  Under even the best possible circumstances, it will take more than 90 days from the date of filing a divorce complaint until the entry of the decree.  I usually tell people that the best case scenario is 4½ to 5 months, assuming that both parties fully cooperate, there is a signed agreement disposing of all economic issues, the court is not backed up,  and, most importantly, the stars are in perfect alignment.  The worst case scenario could be several years or more depending upon the circumstances.
4. “My spouse is not entitled to any of my pension”.  Many clients believe that his/her spouse is not entitled to any portion of their pension since they worked for it.  To the contrary, if the pension was acquired or increased in value during the marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
5. “My spouse is not entitled to any asset that is titled solely in my name”.  How an asset is titled has very little to do with whether or not it is subject to division and/or distribution in a divorce.  The general rule is that if an asset is acquired or increases in value during marriage, then it is marital property (in full or in part) and the other spouse has a claim to it.
6. “The marital property gets split 50/50”.  While marital property is often divided between the parties on a 50/50 (equal) basis, the circumstances may warrant a disproportionate division.  Pennsylvania law requires that the marital property be divided in an equitable fashion based upon a consideration of 11 factors set forth in §3502 of the Divorce Code.  "Equitable” means fair, not equal.  Therefore, if the equities weigh in favor of one spouse, he or she will likely receive more than 50% of the marital property.
7. “If I quit my job, I will not have to pay support”.  This is one of the more popular misconceptions.  Support obligations (i.e. support for a child or spouse) are determined based upon actual income or earning capacity.  If someone quits his or her job without an extremely good reason, their support obligation will be determined or will continue based on their established earning capacity.  A frequent response that I hear when I tell people this is, “then they can just put me in jail.”  That, however, it not a misconception for someone who deliberately takes action to avoid their support obligations.  It may take some time, but under the right conditions, jail may be a reality.
   

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Accountants and estates attorneys can serve an important role in advising their clients how to plan for their financial futures.  One thing to consider is whether the client will be married or divorced.  If your client receives an inheritance or gift from a third party while they are married, the client should be advised what to do with the funds. The client, without thinking, may automatically deposit the money into a joint account or use the money for the benefit of the marriage.

However, if the marriage has deteriorated or may deteriorate, then your client should think about what to do with the inheritance or gift in the context of a possible divorce.  Generally, marital property means all property acquired by either party during the marriage, regardless of whose name it is in.  An exception arises for property acquired by gift (except between spouses), such as an inheritance.  23 Pa.C.S.A. § 3501. The court will only consider the increase in value of the inheritance or gift, unless the money has been co-mingled with marital property.  Therefore, If a client deposits their separate property into a joint account or spends it on a joint asset, then the separate property loses its status as separate property and becomes marital property.  And if it is marital property, its in the "pot" and will be divided like any other asset.

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I posted a blog last week discussing a recent decision in which a marriage was declared invalid because it was officiated by an internet-ordained minister.  Interestingly, a subsequent decision by the United States District Court for the Western District of Pennsylvania indicates that a marriage ceremony, regardless of whether it is religious or secular in nature, can be valid without having it solemnized by any 3rd party. Rather, the parties can just do it themselves.

In Knelly v. Wagner, instead of having their marriage solemnized by a minister or judge, the parties had a self-uniting marriage ceremony in which they simply exchanged rings and vows before a gathering of family and friends. According to Pennsylvania law, parties can solemnize their own marriage in a religious ceremony, without officiating clergy, provided they obtain a self-uniting marriage license and the marriage is witnessed by at least two witnesses. 23 Pa.C.S.A. §§1502-1504.  However, in this case, the parties planned a secular, rather than a religious, ceremony.

In preparation for their wedding, the parties went to the Register of Wills in Allegheny County, Pennsylvania and requested a self-uniting marriage license. They were told that they could not get a self-uniting license unless they supplied documentation evidencing that they were members of the Quaker or B’Hai faiths (two religions that do not have officiating clergy).  Not being able to provide that documentation, they sought an injunction to compel the Allegheny County Register of Wills to issue them a self-uniting marriage license. In support of their request for an injunction, their attorneys asserted, among other things, that the Establishment Clause of the First Amendment to the United States Constitution bars government from providing a benefit to members of one religion that is not provided to members of other religions, or of no religion. The Court agreed with the couple, and issued a Temporary Restraining Order requiring the Register of Wills to issue them a self-uniting marriage license. Two days later they married.

It is ironic that this self-uniting secular marriage is valid, while the marriage officiated in York County by the internet-ordained minister was not.  In the one case, the court overlooked the statutory requirement of a religious ceremony based upon the First Amendment.  In the other, the court found that the officiating minister was not qualified because he did not have a regularly established church or congregation. Reading the cases together, it is reasonable to conclude that, had the York County couple married in a self-uniting ceremony, they would not have needed a third person to solemnize their marriage, and the fact that their minister was internet-ordained would have made no difference. Therefore, if you want to get married and do not want to take any chances that the person solemnizing your marriage is qualified, just do it yourself.

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“Marriage ceremony: an incredible metaphysical sham of watching God and the law being dragged into the affairs of your family.” - O.C. Ogilvie.

Despite googling  “O.C. Ogilvie,” I was unable to determine for what he was famous, other than the above quote.  However, a recent decision by a Pennsylvania court proves that Mr. Ogilvie is, indeed, insightful and worthy of recognition.

On June 30, 2006, Dorie E. Heyer and Jacob T. Hollerbush made application for a marriage license in York County, Pennsylvania. A license was issued by the Clerk of the Orphans’ Court on July 3, 2006. On August 28, 2006, Heyer and Hollerbush were married at a ceremony officiated by their friend, Adam Charles Robert Johnston.

Less than a year later, Heyer filed a motion in the York County Court of Common Pleas asking that her marriage be declared invalid. In support of her motion, Heyer asserted that Johnston was not qualified to solemnize the marriage under Pennsylvania law as he was ordained via the internet. 
At the time of hearing, Johnston testified that he was ordained by making application at Universal Life Church’s website.  Within five to ten minutes of making application, Johnston received his certification.  

The Pennsylvania Domestic Relations Code sets forth a list of persons qualified to solemnize a marriage.  Essentially, the Code authorizes Pennsylvania judges, mayors of any city or borough of Pennsylvania and ministers, priests or rabbis of any regularly established church or congregation to officiate at marriage ceremonies.

Based upon Johnston’s testimony, York County Judge Maria Musti Cook found that Johnston was not qualified to solemnize the marriage between Heyer and Hollerbush.  Specifically, she found that Johnston was not a minister of any regularly established church or congregation because Johnston was not a member of the Universal Life Church prior to his internet ordination, he had not attended any meetings at any office of the Church, and he had no congregation with which he regularly or occasionally met at any place of worship.  Judge cook noted that, “[a]t the very least, the statute purports to require an activity that occurs on a habitual or patterned periodic basis at a place of worship (church) or a group of individuals gathered together for the same purpose (congregation).”   Accordingly, Judge Cook found that Johnston was not qualified to solemnize the marriage and, therefore, she declared the marriage void.

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Everyone is relieved. The case has been resolved, hopefully through negotiation, but maybe through litigation.  The work is not done!

At the end of every case, the lawyer should prepare a "List of Obligations", which outlines what needs to be done to implement the Agreement/Order.  The list might include:

• Drafting and Implementing QDRO's for the Retirement Plans
• Modifying Support Orders to Account for Alimony Payments.
• Transferring Investment Accounts.
• Drafting, Executing and Recording Deeds.
• And, last but not least, Making Certain the Divorce Decree is Entered.

Clients need to understand that there may be additional fees incurred even after it seems like the process is over.  The attorney needs to manage expectations on that issue.

And the attorney needs to make sure the obligations are completed.  Many things could impact the assets post-divorce, not the least of which is the death of a party prior to the finalization of the obligations. 

Dot your "i's" and cross your "t's". 

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23 Pa.C.S.A. 3323(d.1) was added to the divorce code in 2007, and states that where grounds for the divorce have been established prior to the death of one of the parties, the parties' econmic rights are to be determined under the divorce code, not 20 Pa.C.S.A (relating to decedents, estates and fiduciaries).

In Yelenic v. Clark, an April 2007 decision of the Superior Court, it was held that where Husband died prior to the execution of a settlement agreement and prior to the entry of the divorce decree, Section 3323(d.1) required that the parties assets be distributed pursuant to the divorce code, but that no "posthumous divorce decree" would be issued.

The Estate of the husband made an interesting argument, claiming that the failure of the court to enter a divorce decree might permit a "double dip" by the surviving spouse.  She could be entitled to additional property as the beneficiary of insurance policies and retirement accounts that were not updated prior to the death of the husband.  Even though the agreement of the parties or the court's order might hold that the deceased was to retain property, if the named beneficiary on the policy or account was the surviving spouse, the surviving spouse would receive those funds as the named beneficiary despite the equitable distribution scheme.

The Estate concluded this argument, pointing out that if a divorce decree were issued, this unfair result would be avoided.

The Superior Court's response was interesting.  In upholding the trial court's conclusion that Section 3323(d.1) only permits the resolution of the economic rights, and not the entry of a divorce decree, the Superior court went on to say:

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I recently read an article about a Canadian Divorce Lawyer who charges $2,500 prior to his initial consultation.  I could not tell from the article whether that amount was for the initial consult, of if he was charging a flat fee for the entire divorce case.  But the article did describe a lengthy consultation process, including the completion of a survey, a multi-media presentation, and parting gifts for the client, including a 2 hour dvd, a cd-rom of the initial interview (with a disclaimer), and an indication of whether the client was a "A" Client (yes, we'll take your case) or a "D" Client (Sorry, but here are names of other lawyers who might be willing to represent  you.

While this certainly won't work in most divorce practices, it does raise several questions:

1. If an attorney charges a reduced fee or no fee at all for the initial consultation, is the attorney under-cutting herself? 
2. What is the purpose of the initial consult?  Is it a "get to know you" or are you providing significant information and developing strategy?
3. How do you handle the prospective client who might be "shopping", or worse yet, looking to conflict out attorneys from representing his spouse.

These are only a few of the questions which come to my mind.

Recently, I have had discussions with several lawyers and the question arises as to whether it makes sense to charge a premium for the initial consult.  At least in my case, I spend 60-90 minutes with the new client, get a lot of information, give my 15-20 minute "shpiel" on the process, and begin to develop a strategy with the client.   The client's expectations are discussed and formed.  It is very valuable time. 

Not necessarily in the southeastern part of Pennsylvania, but in some other locales, I have heard of initial consult fees ranging from $1,000 to $2,500.  Does this make sense?  I don't know, but it is something to think about.

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A woman in Chicago received an award in her divorce case of $184 million.  It is thought that this award is one of the largest in U.S. history.

This is a rags to riches story, as the parties came to the United States from Eastern Europe with only $500.  Husband became a huge success in the energy business, and later sold his business for several hundred million dollars.

The balance in the case related to whether Husband's creation of the wealth was worth more than Wife's contributions as homemaker, confidant and supportive spouse. 

The Judge in the matter held for Wife, and counsel for Husband says they intend to appeal.

Read the full article at CNN

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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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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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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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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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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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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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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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