Part 1 of 2

After a recent meeting, my colleague Julie Manser and I were discussing what it must be like to be a mental health practitioner in an age of frequent divorce. Clients commonly ask us questions that are better posed to people with degrees in psychology and psychiatry and we often hear from our clients about what their psychologist thinks needs to happen in the context of a divorce proceeding. We would welcome similar insights from our colleagues in the mental health community but, for the moment, we will confine our thoughts to what mental health professionals need to know about divorce in Pennsylvania. As with all legal advice, nothing substitutes for the custom fit of advice tailored to the actual facts, but absent all of the facts, here are some general things that all people should know even if they don’t have mental health training.

1.            “Am I legally separated?”

This is actually a complicated question with many answers. Before 2005, the definition was the cessation of all cohabitation but even then people living in the same house could be legally separated if they let the world know that the marriage had attained “Game over” status. The courts looked for outward manifestations of separation such as separate bank accounts and the absence of the couple from family events like weddings, Thanksgiving, or religious celebrations.

The courts also looked to signals that the separation was not merely practical (separate jobs in separate towns) but hostile. These standards still exist and are not easily defined.  But in 2005 the General Assembly came to the rescue with a law that said a presumption of separation was created by filing for divorce. So the shorthand of this is that Pennsylvania does not have a bright line test of legal separation but a presumption that it is in effect if one party has filed in Court to end the marriage.

2.            “If I leave the house will I lose my rights to the house or my kids?”

No, but don’t be stupid either. We routinely hear stories of people who live in very real jeopardy of physical harm from an abusive spouse because they know that if they left, they would lose all rights to the marital residence and even their children. It would be abandonment, right? Well, no. Departure from a house to evade the risk of violence or even to collect your own thoughts is not going to be viewed as abandonment. In fact many police departments responding to domestic violence calls will tell one of the parties that it might be wise to spend the night elsewhere.  Nothing wrong with that. But, the longer you stay away voluntarily, the greater the risk that you will create a new status quo where a court will find that it is in everyone’s best interest to keep you and your spouse apart.

So if you leave for a night or two to stay with a friend or relative and weeks go by without your returning, you do have a risk that a court will award the spouse who remained exclusive possession. That may actually be advantageous to you but any competent lawyer will want to know all the facts before advising you to stay or leave.

So, a night away is not going to cause irreparable harm but as one night grows to two or seven or fourteen, realize that you might be creating a case for one party to get exclusive possession. Understand that exclusive possession is not a forfeiture of your rights to whatever equity your home may have. That money will be counted so long at the house was acquired while you were married.

3.            “The divorce papers say I may lose rights if I don’t file something immediately.”

They do say that, but divorce cases have very few “default” provisions for failure to file. That is different than regular civil cases like contracts or personal injury claims. If you are served with a divorce complaint in person or by registered mail, you really should put legal advice on the agenda. While the system is kind of “rigged” to prevent default divorces, many divorce actions are filed with corresponding actions for support, custody or “special relief” including requests to freeze assets or for exclusive possession of a house.

When your patient looks through the package of materials, they should be looking for anything that gives them a specified date and place to answer a request for relief. Thus if a person is sued for custody of a child, the paperwork will typically state a date and time for a conference or hearing. The same is true for support. You may see paperwork that references claims for support or custody but no hearing times are anywhere to be found. This means that the suing spouse is making the claim but has not asked for a hearing on it. This often occurs when couples are still in the same house. Courts are chary to immerse themselves in deciding support or custody if both adults still live together.

The key here is to carefully review the materials and check to see if anything is “scheduled”. If something is, pay attention to it and don’t wait until the last day or hour to find out about your legal rights. Otherwise you may find yourself ordered out of the house with your assets frozen.

As the national divorce rate for new marriages hovers around 50%, couples living together before marriage or in lieu of marriage is an increasingly routine arrangement. Media coverage has played a part by confirming what many people knew anecdotally: that people are choosing to live together as a committed couple without ever getting married.

What is also increasing in frequency and necessity is for cohabitating couples to be proactive in laying the legal groundwork for how they plan to live together, acquire or pay for assets, and how they should disentangle themselves from such arrangements in the event that they break-up. It can be a difficult conversation to have – no less difficult than one party asking the other for a pre-nuptial agreement – and the introduction of real world considerations may burst the romantic bubble for some, but the risks are real and people’s lives change – the boyfriend with a steady paycheck  has gone back to school and is unable to pay half the mortgage; your girlfriend can not afford her to contribute to household expenses when she loses her job; you have a child together.

 

The ease of cohabitation without the apparent messiness or seemingly permanence of marriage can actually create a larger quagmire of difficulty if the relationship ends. If you are considering cohabitating with your partner, there are a few things worth considering:

 

 

Continue Reading Cohabitation and Unmarried Couples – Practical Tips (Part 1/2)

Advising individuals as to how to handle their cohabitation with a significant other is becoming an increasingly important aspect of my practice. There are many studies, theories, and myths as to the impact (positive or negative) on whether cohabitating before marriage is beneficial or detrimental to a marriage. A recent New York Times article addresses this very issue and finds that the results from a study by the National Marriage Project at the University of Virginia indicate that those who cohabit are less satisfied with their marriages.

Continue Reading Cohabitation Does Not Always Lead to Happy Marriages

The common understanding of an alimony pendete lite (or “APL”) award is that it is a relatively strict economic analysis based on incomes. Due in large part to the prominent reference to “alimony” in this term, it is commonly assumed that APL is treated like alimony in the sense that it is taxable income to the recipient (true) and terminable based on co-habitation (false).

The Pennsylvania Superior Court highlighted this latter fact in a recent ruling in the Childress v. Bogosian case. In that case, the Wife was awarded APL though she was “partially” cohabitating with her boyfriend. The hearing master made a recommendation that Husband be awarded 55% of the marital estate and 60% of the real property that he acquired. The master also applied a retroactive 20% downward deviation in APL due to Wife’s cohabitation and terminated Wife’s APL award that year. 

Wife filed exceptions to the Master’s decision and the trial court granted her exception related to the termination of the APL award, reinstating the award for an additional two years until the Decree was finally entered. Husband then appealed the case and that issue, among others, to the Superior Court.

The Superior Court’s perspective on this issue is that APL is designed to “maintain the standard of living enjoyed during the marriage, so that both parties have equal financial resources to pursue the divorce even though one party has the major assets.” Citing precedence, the Court also noted that “APL may not be denied on the basis that a spouse is cohabitating with another.”

In upholding the trial court’s decision to extend APL payments two years and not take into consider Wife’s cohabitation as grounds for terminating APL, but justifying the downward deviation. The court also recognized the element of husband’s direct impairment of wife’s finances by his willful failure to pay APL payments during the pendency of the divorce.

 

Unlike in an alimony award co-habitation by an APL recipient will not result in a termination of the support award, but one could expect the facts related to the contribution by the recipient’s paramour will be taken into consideration.

As practitioners we advise clients that if they cohabit after they have been divorced they will most likely not receive alimony. 23 Pa.C.S.A. § 3706 provides that, “no Petitioner is entitled to receive an award of alimony where the Petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the Petitioner within the degrees of consanguinity.”  It is important to note however that in cases resolved by property settlement agreements, this section applies only if the agreement contains language that cohabitation terminates the alimony obligation. Van Kirk vs. Van Kirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). 

What determines whether parties are cohabitating? The Divorce Code fails to define cohabitation. However, the courts have generally defined cohabitation as “two persons of the opposite sex resid[ing] together in manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social and sexual interdependence, by a sharing of the same residence, and by other means.” Miller v. Miller, 508 A.2d 550, (1986). This case appears to follow some earlier trial court precedent such as Soby v. Soby, where the Montgomery County Court of Common Please said that alimony would not terminate because of the amount time a person spends with another unrelated adult, but needed to be supplemented by a showing of support in a financial sense. 113 Mont. Co. L. R. 406 (1983)

 

When an issue of cohabitation arises, it becomes a matter of evidence. How much evidence can be obtained to show that the alleged “cohabitors” are in fact linked financially, socially, and sexually. Interestingly, the cases do not clearly articulate how much evidence is enough to prove cohabitation. So, when advising your client regarding cohabitation, it is important to make sure that they understand the “haziness” of the definition of cohabitation, and the difficulty with proving (or disproving) cohabitation. 

Ask any divorce lawyer in Pennsylvania to specify the two most common questions he or she might encounter in an initial interview and the answer will inevitably include one or both of the questions recited in the title.

The second question is easy to answer. It is pretty safe to say that it is impossible to be divorced in the first ninety days after a divorce is filed.  The law is clear. For the first ninety days after a divorce complaint is served (and service must come after the complaint is filed) neither party is eligible to consent to divorce. And for a divorce to move forward it is pretty much necessary for both sides to file affidavits of consent.  Complicating matters is the common fact that many people who file for divorce will for strategic reasons refuse to consent to the same divorce.  Absent the consent of both parties a divorce can move forward based upon either fault based grounds (adultery, cruelty, an ambiguous term called indignities and some other obscure grounds) or a legal separation of two of more years. Only after divorce grounds are established can a divorce be granted.  And in almost all situations the divorce will not come until claims for distribution of property and alimony are resolved by the parties or decided finally by a court. So there is no divorce after 90 days unless the parties are cooperating and there is no divorce even after a two year separation unless the economic issues are resolved. It makes the process slow and expensive but the lawmakers in the General Assembly have passed laws that favor delay in the hope that it may prompt reconciliation.

We have noted that a divorce can proceed even without consent where there has been a separation of two or more years. The question of when a couple is separated for purposes of the Divorce Code is one of the most difficult to answer.  In 2005 the legislature helped to clarify the separation by declaring that there was a rebuttable presumption that a couple was separated when a divorce action was filed. But the presumption is rebuttable where one party can show that there has not been a complete cessation of cohabitation.

An end to cohabitation does not require a separate household. The law as it has evolved in the courts that cohabitation ends when the parties show a clear intention to no longer be together.

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.