Twice a year, lawyers in Pennsylvania who specialize in family law convene to discuss developments in their field. At this year’s first meeting, just concluded in Lancaster, the Family Law Section of the Pennsylvania Bar Association heard from three experts concerning energy law and its impact on real estate.

Roughly a decade ago, hydraulic fracking came in Pennsylvania and began to radically change the energy industry and real estate values. Within five years it seemed that the Commonwealth was going to become a 21st century Texas.  As deposits of natural gas became to come on line by 2008, energy prices spiked to record highs.  Using crude oil prices as the benchmark oil reached $140 a barrel in 2008 but then dropped just as fast, then climbed from $40 a barrel back into the $80-110 range.  2014 saw another rapid decline in prices, falling first to $50 and then dropping to today’s price of $29 a barrel.

This precipitous decline has caused fits for energy producers prompting some to lose 2/3 or more of their market capitalization in the past two years. It has also slowed production and royalty income as well.  The result has created an impression that the shale gas boom was going into hibernation.

There is truth to this but as the experts presenting in Lancaster noted, the industry remains a fast evolving one. The return of the energy industry to Pennsylvania has not only prompted a revolution in technology.  Falling prices have forced geologists and engineers to think more creatively about what can be extracted and how most efficiently to accomplish that.  Today, the industry is looking beyond Marcellus shale to other forms of energy deposits.  Among those noted by Bud Shufstall, an energy attorney with Northwest Savings Bank is a return to the original oil fields discovered in the 1860s with a process that extracts oil deposits which heretofore could not be recovered.

A couple of points seem clear. Energy producers are evolving in terms of what mineral and gas deposits they want and how they may be extracted.  Pennsylvania law on this subject which evolved from 1870-1920 and then was largely ignored for almost a century is now being revived to address new technologies.  Family lawyers trying to dabble in this field do so at their peril because they may be focusing on both the wrong form of subsurface deposit as well as the wrong form of agreement to address what lies below the surface.

The divorce law itself has not formally addressed these subjects. The consensus of the experts, including Brandon Otis, a valuations expert from BDO Seidman and Taunya Rosenbloom, an energy attorney in Athens, PA was that a subsurface deposit for which there was no technological means of extraction had no value until the technology changed that.  But that conclusion may be subject to challenge in a judicial setting.  Then there is the problem confronting Mr. Otis of trying to put a value on what lies below in a world where natural gas prices have fallen 25% in the past 11 weeks.  Prices may be depressed but one thing is emphatically clear.  Pennsylvania is the second largest producer of natural gas in the United States and it is going to remain a focal point of energy production for many years to come.  Those substances trapped below ground are going to be valued and divided whenever there are marital rumblings of the people who live above ground.  Doing it correctly is no easy task.

On October 5th of this year, the Superior Court disposed of an alimony modification request that was decided by the trial court in October, 2014.  The facts and the ruling present a tale of how divorce practitioners need to pay heed to language when modifying an order of alimony.

Egan v. Egan, 2015 Pa. Super. 2013 was decided in Montgomery County, Pennsylvania but began as a divorce in Montgomery County, Maryland.  In 2002, the Maryland Court issued a divorce decree with an alimony order providing for one year of alimony at $4,000 per month and then alimony of $3,000 per month “thereafter.”   In 2004 the former husband filed to register the alimony award in Montgomery County, Pennsylvania and in April 2005, the parties formed a stipulation that transferred both the alimony and child support to Pennsylvania.  The Pennsylvania order made several modifications to alimony, child support and arrearages.  The Pennsylvania Order contained a provision that should father succeed in reducing his child support, his alimony obligation would have a corresponding increase.  We have seen these kinds of arrangements in agreements for many years, but this is the first time we have seen this discussed in an appellate case.  If Father petitioned to decrease child support, the agreed upon increase in alimony was also to render the revised alimony number, non-modifiable.  This agreement was made an order of court in April, 2005 in Pennsylvania.

In February, 2013 Husband/Father filed in Pennsylvania to modify the alimony.  Wife/Mother countered that the alimony was non-modifiable because what was submitted in 2005 was a stipulation or “agreement”.  In a ruling made without a hearing, the trial court ruled as a matter of law that the 2005 document was an agreement under Section 3105 of the Divorce Code and therefor was not subject to modification.  It also held a hearing on Wife’s counterclaim and held Husband in contempt for failure to comply with the 2005 stipulation.  Husband or rather ex-husband appealed.

Because the Maryland divorce decree mandated payment of indefinite alimony, it appears that the Pennsylvania court viewed the alimony award as modifiable as registered here in 2004.  But the “agreement” to modify the alimony and child support provisions of the Maryland decree after registration in Pennsylvania was “agreed”.  The Superior Court ruling is a determination that in resolving the modification of alimony by “agreement”, the parties took an order that otherwise was subject to modification under Section 3701(e) and converted it to an agreement under Section 3105(c).

Section 3105 (c) states that an agreement regarding disposition of existing alimony shall not be subject to modification absent “a specific provision to the contrary.”  In this case, husband argued that Section 3105 governed only those cases where there was a comprehensive agreement.  The Superior Court rejected the argument that agreements under Section 3105 need to be comprehensive, holding instead that if he wanted his 2015 modification to continue to permit further modification, that language needed to be written into the modification instrument.  His argument that alimony was modifiable because he never did seek a modification in child support was rejected for similar reasons.  By reaching the agreement embodied in the 2005 stipulation, husband took an otherwise modifiable alimony order and transformed it into a non-modifiable agreement.

The opinion discussed at length the policy reasons behind the difference in modifiability between Court ordered and agreed alimony.  In a word, the view expressed is that parties to an agreement understand that non-modifiable alimony under Section 3105 is a fundamentally different animal than agreed alimony under Section 3105, and that the parties have to understand that when they negotiate agreements.

The net of the ruling is that a party seeking to modify judicially ordered alimony needs to understand that unless the right to modify again is clearly enunciated, the right is lost where an agreement is reached.  This might be said to have a chilling effect upon such agreements, but the Superior Court found the statutes in controversy to be unambiguous.  It also found the argument that the unmodifiable alimony obligation was onerous (62% of payor’s net monthly income) to be unworthy of consideration.

To the practitioner, the lesson is to draft alimony modifications with great care. To the layperson, the lesson is, do not try to modify your own alimony orders without someone with experience looking at your modification documents.



It is well established in Pennsylvania that it is against public policy to allow parents to bargain away child support for their children, but what about “taxing” themselves whenever they file a custody action? That is essentially the question raised in the Huss v. Weaver case before the Pennsylvania Superior Court.

The Superior Court ruled in favor of the enforceability of a $10,000.00 payment due to the mother each time the father filed a custody modification action. It is pointed out in an article written by Gina Passarella of the “The Legal Intelligencer” (registration required) that no appellate court had previously deemed a contract addressing custody and visitation to be unenforceable as against public policy. This case blurred the lines at the trial level, however, and while not a child support issue, the trial court nevertheless found that it was similarly against public policy as contracts limiting child support and an unenforceable element of the agreement.

Without knowing the provisions of the custody agreement, any number of explanations can be made for this type of seemingly restrictive aspect of the agreement. It is clearly designed to disincentivize the father from seeking modifications and “lock-in” the terms of the parties’ custody agreement against future efforts to modify, though the court could find no specific language in the agreement articulating that intent. Realistically, the amount is significant enough to discourage frivolous petitions to modify, but not a significant enough obstacle to father (an attorney) to seek modification in the event a modification was absolutely necessary.

The Superior Court could not find any justification to determine the provision to be so restrictive as to prevent the father from bringing an action in court. In fact, the agreement specifically states that the father was an attorney and capable of high level of income and that agreement included language specifically stating that both sides viewed the agreement as “fair, just and reasonable.”

As a consequence of the Superior Court’s overruling the trial court on the enforceability of the clause, they did not explore the merits of her second basis of appeal: that the father was estopped from contesting the enforceability of the agreement when he participated in the drafting and advised the mother that it was legal and enforceable. This would have been an interesting analysis for the court to make since it is a common occurrence for parties to reach agreements on custody without attorneys only to litigate the terms of those agreements months or years later.

This case continues Pennsylvania’s legal tradition of applying contract principles to family law agreements. Notwithstanding provisions that do, in fact, violate public policy, the court is going to give considerable deference to the wishes of the parties as they are articulated in their agreements. Here, the father negotiated and agreed to a clause which cost him $10,000.00 every time he filed a custody petition. Whether that has a chilling effect on his legal rights is a consideration for another time, but in this case, the court was not going to “fix” the agreement that the father co-authored with the mother.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989;, and on Twitter @AaronWeemsAtty.

The Arizona Court of Appeals issued an opinion in the custody case of Steve Nash, the point guard for the Los Angeles Lakers.  The opinion upheld the trial court’s decision, which prohibited either party from disparaging the other on social media.  The issue arose initially when Nash’s ex-wife tweeted some disparaging comments about Nash.  Nash’s ex appealed the trial court’s decision, claiming that it infringed upon her First Amendment rights.

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The Court of Appeals, in upholding the trial court’s prohibition of disparaging comments, relied heavily on the fact that the parties had reached an agreement in their custody matter that contained language forbidding either party from speaking poorly about the other.  In doing so, the Court found that the parties had agreed to restrictions on their rights to free speech.

Unfortunately, while this case provides some guidance, because of the narrow ruling which relied on the parties’ agreement, it doesn’t answer the question of whether one parent can be prohibited from expressing his or her negative views about the other parent.



Eric Solotoff, a partner in our Roseland, New Jersey office and editor of our New Jersey Family Law Blog recently posted a blog entry on bad faith negotiating and its detrimental effect on settling cases. Eric’s point is well taken: there are times in family law cases when people lose sight of their goals and try to land a (proverbial) shot on the other person. Empty demands, veiled threats, and open hostility become the rules of the game rather than honest discussions on finding a resolution and that rarely leads to a satisfying outcome for either side or their counsel.

Jenice Armstrong of the Philadelphia Daily News wrote a column about Beth and Daniel Shak’s divorce. The Shaks divorce was finalized in 2009, but recently Mr. Shak filed a petition to enforce the parties’ settlement agreement and is seeking 65% of Mrs. Shak’s extensive (and expensive) shoe collection. Mr. Shak contends that this collection is an asset that was not disclosed as part of the parties’ property settlement agreement and that Mrs. Shak did not provide a “full and fair” disclosure of this collection nor did she list it in an inventory of her assets.

Continue Reading Expensive Shoe Collection Brings Divorced Couple Back to Court

In August 2011, an article was published in the New York Times about “decision fatigue.”  John Tierney, a frequent columnist for the Times, describes a series of studies examining the effects of making multiple decisions over a period of time and experiencing what has been coined “ego depletion” whereby as human beings we have finite amount of energy with which to make thoughtful decisions.  This energy gradually depletes as decisions accumulate until the “decider” finally finds themself making snap decisions with considerably less consideration than they had before. Basically, it is possible that a person finally reaches a point where they will make a decision less on their wants and needs and more just to have the question out of the way and to move on. 

As a series of experiments described my Mr. Teirney indicate, people become indecisive because they fear losing options.  The anecdotes provided in the piece demonstrate how mentally fatigued people are less likely to make trade-offs and will, instead, seek to preserve the status quo or eliminate the nuance the decision (i.e. compromise or make trade-offs) and make the decision one dimensional.  The status quo is not always the best decision for the situation, but it has familiarity in its favor.

The article is fascinating for a lawyer because our clients have undoubtedly been through a “Rubicon”-like scenario as described by the scientists Mr. Tierney’s interviews.  After repeated analysis, decision-after-decision, negotiation, explanations, more decision-making, it is not surprising that a client at 4:30 p.m. is more amenable to settlement, than he was at 8:30 a.m.  They can feel worn down.  That is not to say that the decisions are wrong, but the science indicates that the decision-making has changed as the mental fatigue increased.  Lawyers are not immune to this physiological effect, either.

There is no real “cure” to ego depletion, merely a few things to mitigate its effect. Ultimately, when a client is faced with an important decision late in the day, the relationship between the attorney and the client will be a critical element to ensuring the “right” choice is made and not just “a” choice is made.

Following up on Mark Ashton’s “celebrity” themed blog entry on the Los Angeles Dodgers’ ownership, another high profile individual is having a residual effect on divorces: Bernie Madoff.

Mr. Madoff’s crimes are well-documented and high profile. His arrest has given rise to a media niche on scan artists, including Montgomery County’s own “Madoff”, Robert L. Krikorian, who was recently convicted of a Ponzi scheme and sentenced to three to seven years in jail for bilking investors out of (a paltry) $870,500.00 over about four years. If you rip off your investors you are labeled a “Madoff.”

But in being duped, should people get the chance to redo the a Marital Settlement Agreement negotiated and executed years before the fraud was discovered? That is the question being asked in New York where a well-heeled couple split their assets in 2006, including a large investment account with Madoff. Wife pulled her money from the investment, while Husband kept his in. You probably can guess what happens next: Husband’s money gets lost in the Madoff scandal while Wife continues to live well in her Upper East Side apartment.


The question before the New York bar is whether Husband can sue to have the Marital Settlement Agreement reopened and the funds Wife retained redistributed to account for his Madoff loses. Sides are being taken in this dispute and many practitioners view a favorable outcome to Husband as having wide reaching implications to contract law and beyond; it calls into question whether a deal is ever really “done.”


The crux of Husband’s case rests on the argument that the parties’ Agreement (contract) is nullified by “mutual mistake;” they were both mistaken by the existence of an account with Madoff. It appears that Husband is arguing in that they were both mistaken their belief that they had an account containing millions of dollars with Madoff. – the Madoff fraud proves they, in fact, had no “account” with Madoff. So, even if they had moved $1 million dollars over to Madoff, they really weren’t investing it. Madoff stole just stole it…except for the $6.6 million cash payment Husband swung over to Wife from the account.


This case basically sets up the possibility that events subsequent to an agreement could allow for a total reexamination of the deal. Interestingly, we had (have) a national crisis over real estate values (many would argue millions of frauds were committed), yet I am not aware of any parties successfully trying to re-litigate a deal in which they kept the marital residence and off-set its equity value with cash assets. No one is successfully re-litigating their stock holdings that tanked. In my experience, a client and her husband split their stock account when they separated; my client moved her money into cash, while Husband – allegedly a financial guru – keep his in stocks. Two years later, my client has retained most of her money in cash, while husband has lost all of his money to his lifestyle and stock market.  Husband unsuccessfully argued that Wife should bear some of the liability because the assets were marital in nature, but the court held that he was responsible for his portion of the money.


In New York, Husband’s case looks, in many respects, as a brazen attempt to capitalize on a highly publicized crime for which neither party had any knowledge or control over. The only control they had was how they decided to invest their individual pieces of the marital estate after the divorce. Wife chose to pull her money out; Husband opted to keep his in. Wife mitigated her risk; Husband appeared to have raised the stakes.


After a trial court dismissal, the New York appellate court reached a 3-to-2 decision in favor of Husband’s right to sue to revise the deal based on “mutual mistake.” Whether he will successfully revise the deal remains to be seen.

We are often asked whether the negotiation process in divorce is admissible in the proceeding. “If I agree to take the house at $400,000, will that bind me if we can’t close on that number and the case goes to trial?” “If we said we would take 30 months of alimony at $3,000 can I demand more later if my spouse does not accept?” The answer to both questions is yes. Negotiation is meant to be an open set of transactions and one is not bound until a contract (offer and acceptance) is reached. Furthermore, in order to encourage these kinds of negotiations, the Rules of Evidence forbid the introduction of what proposals were made during negotiations. Thus if my client says: “Dear husband, I will buy out your interest in the house at $400,000, if you will pay me thirty months of alimony at $3,000” the offer will not be admissible to prove that the house is worth $400,000.

But there are times when Courts will hear testimony about negotiations where the purpose is not so much to prove the terms of a negotiation as the fact that the negotiation was conducted in bad faith. The classic example is in the realm of custody. Many counties send the parties to mediation before a custody hearing is held. The mediation is supposed to be confidential; the rules say so. And this means that you can pretty much say what you want in mediation. But let us say that on Monday you go to mediation and you spend an hour or two negotiating over whether your spouse gets the kids Thursday to Sunday or Friday to Sunday. No settlement is reached. Five days later you are in Court. Your “court” position is that your husband is a drug addict and a pedophile. Unless you just learned of his wayward ways in the days between the date of the mediation and the court appearance, you will probably be asked pointedly how you were willing to agree to overnights on Monday at mediation when it was your official position that there were substance and sexual abuse issues hanging in the wings. The purpose of admitting this testimony is to show that you are an unethical negotiator willing to make false threats to advance your legal position. Not good.

This does not come up so much in the economic side of the divorce. It can in situations where a spouse offers to “take” an asset for one value but demand a completely different value for the same asset if he is “giving” it. The fun here usually revolves around household contents and their value. Let’s say husband has moved out and left most of the contents behind. In negotiation he asserts that the contents were worth $20,000. Wife counters saying that she will give him the contents in exchange for an additional $20,000 in cash or retirement. If husband rejects that proposal, the offer may be used to show that attorney’s fees and time were wasted on frivolous negotiations. It does not however, help us determine the value of the contents.

One other point should be considered that does not have to do with the law but the ethics of negotiation. Negotiation is intended to narrow issues. As issues narrow, doors should start to close. Wife wants 62% of the assets. Husband offers 52%. Wife wants 4 years of alimony. Husband offers two. For purposes of trial, no one is bound by these assertions. But if Wife’s next offer is that she wants 62% and five years of alimony, and I am husband’s counsel, I stop the train and announce that my client and I are getting off. The only credible basis to increase a demand during the negotiation process is if there is new information that makes the reversal of position fair or appropriate. If wife discovers that she has a health condition, that might justify negotiating backwards and increasing her demand. But absent new information, a party should recognize that in negotiation, as issues and positions narrow, one cannot go backward without losing credibility and putting your lawyer in a similar position. This problem often arises in negotiations over property in tandem with alimony. It often occurs that months will be spent working out an asset split. When agreement is finally reached, one party re-opens the door and suggests that it is now time to discuss alimony. The other party responds that the whole basis of making a disproportionate split of assets was premised upon the fact that there would be no alimony. If alimony or counsel fees are going to be part of the negotiation, get those terms “on the table” early in the process so time is not wasted creating a false hope that settlement is near.