Archives: separation

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.

Since the inception of equitable distribution in Pennsylvania on July 1, 1980 the law has consistently been that courts have power to divide marital property.  With certain exceptions for gifts and inheritances, marital property is all property “acquired” from the date a couple marries to the date they finally separate 23 Pa.C.S. 3501(a). The challenge in several cases has been to determine when property is “acquired.”  To that evolving legal concept we now have not only a reported decision in Yuhas v. Yuhas but one decided by a nine judge panel of the Superior Court.  The decision was rendered on October 28 by a 6-3 majority.

Husband was a surgeon.  He developed Carpal tunnel syndrome during the marriage that effectively ended his career.  Fortunately, he had a disability insurance policy that was acquired shortly after he and wife married.  At various times the couple paid for this policy from personal funds.  Other payments were funded by his practice.  In April, 2007 husband applied for his disability benefits.  In July, 2007 the application was approved.  In that same month the parties separated.  The monthly benefit was $10,700 per month and was made effective January, 2007. The policy continues to pay although, it also requires that husband periodically prove he remains unable to practice surgery.  Wife claimed that because the policy was acquired during the marriage the benefits arising from the policy were also marital.  The special master appointed to hear the case concurred.  The case was reviewed on exceptions by the Chester County Court of Common Pleas, which reversed the master and held that the post separation payments were “income” but not marital property.  The decision of the trial court appears to have turned on the fact that the payments were not guaranteed but renewable premised upon proof of continuing disability.

In a supplemental opinion the trial court noted that the payments that accrued prior to the July separation were marital.  It then analyzed the case in light of the Supreme Court decision in Drake v. Drake, 725 A.2d 717 (1999) where a workers’ compensation award was to a lump sum payment prior to the separation date.  Because this was an “ongoing” claim for disability and not a commuted lump sum payment the trial court saw each monthly payment as a separate right accruing post separation.

To this decision, the Wife appealed.  Her contention was that the event giving right to the income took place prior to separation as did the approval of the claim.  She also noted the 2011 Supreme Court decision in Focht v. Focht 32 A, 3d 668 where a husband was injured in a raceway accident and filed suit with his wife before separation but settled the case after separation. In Focht the Supreme Court held that proceeds from a settlement made after separation are marital because they were acquired in exchange for a chose in action that accrued before separation. Id. At 674.

The Yuhas court noted that a cause of action accrues when the injury was inflicted under both Drake and Focht.  But here the disability did not arise from an injury and were not received as the result of an award or settlement for a cause of action or claim.” 23 Pa.C.S. 3501(a)(8).  The Superior Court holds that Husband did not “contemplate any legal action, nor did he possess a claim against anyone or any entity.”  The Court then refers to the fact that the payments are subject to a condition subsequent.  If husband recovers from the parathesia that prevents him from working as a surgeon the disability benefits are lost.  For this reason, the Superior Court decided these post separation payments are non-marital.

This makes for an interesting analysis.  Husband and wife bought and paid for a policy of insurance.  The event covered by the insurance (the loss of the ability to be a surgeon) occurred during the marriage.  The right to receive the payment for loss was affirmed before separation as well, albeit subject to the condition subsequent. The opinion state that Husband had no claim against anyone or any entity.  Did he not have a claim against the insurer if the insurer had denied the disability claim.  His action would have been in contract and not tort but is that a distinction contemplated by Section 3501(a) (8) which speak of “any cause of action or claim”

Yuhas v. Yuhas,   2013 PA SUPER. 283 (10/28/13).

The immediate prompt for this brief article is the report on February 23, 2013 that Tiger Woods and his ex -wife Elin Nordegren were spotted at an event where they spoke together not for 30 seconds but 30 minutes.  In one sense this is not newsworthy at all but during the week, I had a spate of cases where I know the parents or friends and family of recently separated couples and where the parents/friends/family always knew that this marriage could not last and/or the couple never belonged together or he/she changed and is now unworthy of the friend or family member. This happens every day but when it happens to friends and family we want to rush to support the person we are closest to with words of support.

Express those views with caution or at your peril. Yes, you never did like his wife or her husband.  Yes, you saw all of the failings and frailties that your friend or loved one could not see; blinded by good looks or charm or in too many case: “none of the above”.  But when your friend finally screws up the courage to end the relationship or move in that direction, be aware that today, the rules are different.

Separation and divorce are never easy.  As folks who see this everyday, we recognize that a failed relationship is a difficult thing to face.  But in many cases, “history” or “children” or whatever mean that there is a wide gulf between separation and divorce. Friends and family who step into that breach with their views do so at their peril as couples often second guess themselves today and decide to reconcile.  If that occurs, your candor in expressing your views about the spouse is the only things that is left and sometimes that means loss of a friendship or relationship that you treasure.

If your friend or family member comes to confide in you that he or she needs to end their relationship with a spouse, be supportive.  But do so knowing that many marriages irretrievably broken on Monday are back together in some bizarre way by Thursday and that too much vocal support at your end could end up costing you an important friendship.

While reading a press release by the American Academy of Matrimonial Lawyers this afternoon, I realized individuals in the midst of a divorce regularly receive warnings about what is acceptable and safe to post on Facebook and what might get them in trouble. They also receive advice from their counsel about when it is appropriate to start dating again and when, for strategic reasons in a divorce or custody case, it might be best to wait. But what about when the two collide and people in the middle of a divorce put a profile on an online dating site? Here are five things I hope my clients never put on their online dating profiles:

1.             Pictures of your kids: While your children are undoubtedly adorable, your spouse (or ex-spouse) will have a field day in a custody case with the family photographs you put on your dating profile. Your decision to upload a picture of you with your child from last Christmas may have been completely innocent, but the other parent can easily turn it around on you, claiming you are using your children to find dates or exposing your children to internet predators.

 

2.             A claim you don’t have kids (when you do): The exact opposite of putting pictures of your children on your profile, if you have kids, don’t claim you are childless on your dating profile. Immediately, the other parent will claim you must not love your children if you won’t tell anyone about them.

 

3.             Anything about your income: If you are in the middle of litigating your income in a divorce or support case, and claiming in court that you make less than $50,000 a year, stating on your online dating profile that you make more than $200,000 per year might not be the wisest move. While it might attract people that otherwise wouldn’t respond to your profile, you will pay for it dearly in court.

 

4.             Stating you are divorced, or single (when you aren’t): Often times in a divorce or support matter, the date you separated from your spouse is very important. If you posted that you are single on your dating profile, weeks or months before you spouse knew your marriage was over, you may have set your date of separation unintentionally. You may have also admitted infidelity (or at least an attempt at infidelity) prior to your official date of separation, which may preclude you from collecting spousal support. To be safe, I wouldn’t put up a profile on a dating site at all until you are definitely separated. 

The New York Times ran an interesting article on long term separations – or the “un-divorced” as the writer, Pamela Paul calls it – as an alternative to divorces. It raises some interesting points about the benefits – and the complications – of a long term separation. In a state such as Pennsylvania, where separation can be grounds for seeking spousal support and child support, long-term separation may have both strategic and practical benefits to a dependent spouse by potentially providing years of support.

Additional benefits also may include the continuation of medical and tax benefits. For some cases, medical coverage is a critical aspect due to a major medical condition or insufficient income to obtain independent insurance coverage, while most people benefit from filing their taxes jointly.

Issues to consider, particularly in Pennsylvania where there is no “legal separation” per se, is that being separated has no legal effect on things like Social Security, insurance benefits, estate benefits, or retirement benefits. Some retirement plans designate the spouse as the beneficiary of the plan, therefore, if the spouse dies during the period of separation, the benefits pass to the other spouse as if the separation never occurred. In Pennsylvania, until a grounds order is entered, you are married and death benefits, property rights, etc. will pass to the surviving spouse by operation of law.

Long-term separation is often a convenient arrangement, rather than a desired situation. In many cases, it forestalls the inevitable divorce, but on the other hand, it may just be a way to deal with a marriage that he ceased to work in a traditional sense, but that those involved find too much invested to sever the legal ties to one another. Like all things, there is no cookie-cutter approach to long-term separation; each situation requires careful consideration of the benefits and risks (ex. Joint taxes maximizes tax benefits, but also can exposure each party to liability for what is disclosed in the return). Finding the balance between an unhappy happy and a tolerable (if not happy) separation is not easy, but it could the best solution for some people.

Every once in a while, a good deed does not go unpunished.  About a month ago I received a call from an acquaintance with whom I worked performing community work several years ago.  Could she stop in and chat?  As one might expect, people do not just stop in to “chat” with divorce lawyers without some particular thoughts in mind.

We met for about 20 minutes.  By the standards of our parents’ generation she had the perfect marriage.  Beautiful kids, financial security and prominence in the community.  But as is so often the case things were not feeling that way. There was a suggestion that perhaps her spouse had not been faithful and, being an intelligent woman, her response was to research.  The results were not encouraging.  Because we knew each other, I got what I call the “ultimate question”.  Was it time to end it? Personally, I hate this question.  I have been doing this line of work for almost thirty years; I have been married twice during that time.  But, who am I to tell another person whether he or she should try to preserve a relationship that was once seen as a lifetime commitment?  There are days when I hear stories that make me want to blurt out: “You must be kidding.”  But that’s not a lawyer’s role.  Lawyers are at their best when they are Socratic.  Ask the questions.  Explore the options.  Then let the client make the decision.

The subsidiary question I had posed in this meeting was whether marriage counseling made sense.  Having once done it, I am not a big fan of marriage counseling.  It is my own belief that when confronted in meetings by people we don’t know, our first goal is to try to look like reasonable people and to impress our new found acquaintance, the marriage counselor. Of course this comes at a price and that price is called ‘candor’. Second, there is a tendency to pull punches.  I wish I could recall how many times a client has lit up in appreciation when I observed that it sounded like a spouse was more committed to a job or the children than the marriage.  A recent article about how couples fight about money noted that many fights over money are merely stalking horses for other issues.  I can’t look you in the face and tell you that I am unhappy about your weight, your lethargy, your inability to discipline our child, your fawning admiration of the idiot neighbor.  But I can easily summon the courage to tell you that you should mow your own lawn or cut back on the credit cards.

So, I find that marriage counseling tends to work best as a second step.  Step one is to see a counselor individually and do the preliminary work.  With your own counselors you and your spouse can each let loose not only about each other but about what is working or not working in your own life besides your marriage. You can say what you want and not fear immediate rebuttal, rejection or impeachment.  You can hopefully sort out where life has brought you and, most important; where you want to go next.  That next step may mean separation and divorce.  That’s alright too.  But many times, individual therapy causes the patient to gain perspective.  Also, don’t kid yourself.  In individual therapy it’s easy to throw the punch and, as Napoleon once suggested, blame everyone not in the room.  A good therapist is going to spar with you; challenging your views and asking questions intended to make you think.

Once you have put some time into getting your own emotional house in order; it is time to take the show on the road and do some couples counseling.  But if your individual counseling convinces you that you are absolutely destined to end your current relationship; then don’t dishonestly go into marriage counseling.  Ask your spouse for permission to speak to her therapist.  Lay your thinking on the line.  If nothing else this will help your spouse get insight from her own therapist as to how you got to your conclusion.  That’s healthy for both of you.

I’m also a big fan of the written word.  Not the texted or instant messaged thought.  I mean something you will put hours into just as you did a paper in college.  Your marriage is a relationship in which both you and your spouse have made an enormous investment.  Don’t sell out cheap.

Divorce is often made more expensive because the lawyers are carrying their clients heavy emotional baggage. Carry your own.  You will not find it pleasant but you will ultimately feel better about the experience.  And you will save a stack of money.

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.

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.

 

So what have I learned after being a lawyer for nearly 30 years and helping many folks go through this difficult process?  If you believe that a divorce is in your future, here are 12 things think about:

Continue Reading Twelve Things To Consider Before Filing for Divorce