Archives: spousal

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(Photo by Indi Samarajiva)

 

The Pennsylvania Support Rules were recently amended on December 30, 2012.  Rule 1910.29, formalizes the presentation of support evidence for Family Law Cases.  Anecdotally, the Rules of Evidence may not always be strictly adhered to in family law cases due to probative value of some forms of evidence weighed against the cost and difficulty of verifying it or authenticating it at trial. 

 

Rule 1910.29 attempts to eliminate some of ambiguity about the admissibility of some forms of evidence by providing counsel the opportunity to offer the other side copies of those documents they will be offering into evidence twenty (20) days prior to the hearing.  In doing so, provided the other party does not object to the admission of those documents into evidence, they will be accepted as authentic and admitted into the record.  If an objection is made to the records, then the Pennsylvania Rules of Evidence will apply as to the admissibility of those documents into evidence.

 

This rule also standardizes the admission of medical evidence in both record and non-record proceedings, (i.e. proceedings which are not recorded by a court reporter).  Whenever a party raises a medical issue as preventing them from earning income, that party will need to obtain a Physician Verification Form and have their physician fill it out and verify its contents as accurate.  This Physician Verification Form will hopefully eliminate some of the ambiguity for those parties who claim a disability, but conveniently have failed to file for Social Security Disability or worker’s compensation benefits. 

 

If the party who has introduced the Physician Verification Form at the non-record hearing would like to have it entered into the record at the record hearing, then the above rules will apply with giving the other party twenty (20) days notice prior to the hearing and allow the other side the opportunity to file and serve an objection within ten (10) of being served with the document. 

 

By filing an objection, it is likely that the physician will need to testify since there will not be any medical evidence available for the record and if the court deems that the objection to the entry of the Physician Verification Form was frivolous or unnecessary then it is within the court’s discretion under this rule to allocate the costs of the physician’s testimony between the parties.  This portion of the rule is a not-so-subtle suggestion to attorneys to keep their objections substantive and not use objections as means of delay or obstructing the other side’s case.

 

This rule update is a significant change in how evidence is admitted in support actions.  This should help streamline litigants’ ability to offer complicated financial evidence and have objections and questions addressed in advance of the trial, rather than bogging down or delaying the substantive hearing by what amounts to a discovery dispute. 

 

This rule can also have the positive effect of keeping some litigation costs down by allowing a party to produce a non-expert summary and have it pre-approved for admission into evidence, thereby alleviating the need to bring an accountant or other financial expert to court in order to testify as to the information. 

 

Finally, Pennsylvania Family Law procedure varies from county to county and is reliant upon local practice when dealing with a variety of different issues.  This rule update gives some state-wide uniformity to this form of evidence.

 

Along with the recent revision to the standing provision of Rule 1910.3, the Pennsylvania legislation also made revisions to Rule 1910.19, which addresses the relatively rare, but frustrating issue of support overpayments.

Addressing overpayments related to child or spousal support can be frustrating for the party paying support (the “payor” or “obligor”) because of the disparity in attitude toward overpayments compared to people who do not pay their support on time or at all. For instance, if they were to owe support (be in “arrears”), their tax return would get intercepted, they couldn’t buy or sell a house without satisfying the debt, or they may have other enforcement remedies taken against them.

 

The policy of the Domestic Relations Office (“DRO”) for overpayments, however, is that it is preferable to carry an overpayment until the support obligation ends. This is policy is reasonable and logical, but it does raise two questions for the payor:

 

1)         How do I stop the order from charging; and

2)         How do I get the overpayment returned.

 

The first question received some minor tweaking to Rule 1910.19 which went into effect October 31, 2011. DRO will make an emancipation inquiry within 6 months of the date the child is to turn 18 years of age. If the notice is not returned to DRO within a six (6) month time frame and there is overpayment on the books then DRO shall administratively terminate the child support order on the perspective date of emancipation (18 years of age and graduated from High School).

 

Now that the Order has been stopped, the next question is to figure out to have the overpayment returned to the payor. Rule 1910(g)(1) and (g)(2) now allow a procedure to accomplish just that:

Section (g)(1) allows that when a charging order is in effect, DRO will reduce the Order by 20% until the overpayment is discharged. The payee can contest this reduction and request a hearing;

Section (g)(2) provides that if there is no charging order in effect (for example, it has been terminated due to emancipation), the payor may petition DRO to recover the overpayment. DRO has, within their discretion, the authority to enter an Order against the payee to pay the overpayment on a monthly payment schedule – basically, a support order in reverse.

 

Overall, this is a step in the right direction for correcting a procedural conundrum for DRO. While the number of people who will utilize these rules may pale in comparison to those payors who fail to satisfy their support obligations, both payors and payees are entitled to equal opportunity in  addressing their claims.

An important change to the Pennsylvania Support Code will go into effect very soon. Rule 1910.3 identifies those individuals who are allowed to bring child support actions and beginning November 1st the Rule will be expanded to allow “any person who may owe a duty of support to a child or spouse” to initiate a custody action.

This language definitively establishes that either party may begin a support action and eliminates some of the ambiguity as to whether a support action must be filed the obligee (the person entitled to receive support). The way the Rule was written, it could be interpreted that any person who has custody – even partial custody – could initiate the support action regardless of whether they were to be the payor or the payee. This put the Domestic Relations Offices and Court in the position of having a party listed as Plaintiff, but whom is in reality should be the obligor. Payor’s filing to start support actions tended to cause administrative confusion for the Courts, so whether or not the action moved forward usually depended on whether the non-filing payee party was willing to let it move forward.

One would assume that any one owed support would file for it, but there could be strategic reasons for holding off on filing for support, especially if there was an alternative source of income for the obligee, or if the obligee was seeking to establish standing to file for support in a more advantageous support jurisdiction. The consequence was that a party who knows they will owe support could not effectively address the situation without the obligee taking the appropriate steps to file and schedule a support conference.

Thanks to this language revision and the addition of Subparagraph (b), any party can initiate the action and the trier of fact will be the one who decides who is the obligee and who is the obligor. As stated in the “Explanatory Comment” the new category recognizes that some people “may want to start paying spousal support or alimony pendente lite to the obligee as soon as possible to avoid the accumulation of retroactive arrears…”

 

This revised rule is, ultimately, a common sense shift to ensure that any one with a support entitlement or obligation has access to the courts and can have that obligation addressed without any delay or detriment to the child/ren or spouse subject to the Order.