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The Instruments of Embarrassment
The Instruments of Embarrassment

A recent story through ABC’s Good Morning America website highlighted the evolution of the prenuptial agreement in the social media age. Divorce lawyers are reporting an increasing amount of requests for language in prenuptial agreements – if not stand-alone agreements – addressing social media usage.

It makes a lot of sense. In an age where nothing ever really seems to be removed from the internet, protecting one’s privacy or “personal brand” on social media is a major personal and professional priority. People have been fired from their jobs due to content someone posted about them online; personal and professional reputations have been tarnished over embarrassing photos.

The concept of this clause does raise some intriguing legal issues. First, your ex-wife posting an embarrassing photo of you is not going to be defamation per se; after all, it is difficult to assert she is lying when the photographic evidence speaks for itself. Secondly, how can financial damages even be measured for someone posting on social media? Unless a job is lost or there is a concrete connection between the posted content and the outcome, I think a person calling “foul” over their ex-spouse posting photos will have a difficult time proving they lost income.

The way to give such an agreement “teeth,” therefore, is to provide for a defined financial sanction against the posting party. One attorney in the story suggests that the sanction should be relative to the earning power of the violating party and apply to each incident in which barred information was published. Practically speaking, the sanction has to be great enough that neither party will feel that the personal satisfaction of humiliating their former spouse outweighs the financial penalty.

I would think such an agreement, however, would need to carve out an exception for trial evidence or at least be narrowly tailored to the dissemination of information through social media platforms. Pictures and video acquired during the marriage can be a valuable resource for the corroborating behavior or actions of a party; it can provide important, admissible evidence. A blanket prohibition of the dissemination of pictures or video could undermine their application at trial and would certainly be subject to a discovery motion as to whether the agreement precluded the use of information at trial or, merely, the use of such information on social media. I would be surprised if people – particularly if they plan to have children – would want to prospectively preclude the introduction of certain types of evidence which may be relevant at a custody trial. An exception for the use of such media evidence at trial or, possibly, an agreement that such evidence would be viewed by the judge “in camera” (i.e. not in open court) could also help address the sensitive nature of the evidence.

It is axiomatic that technology changes faster than the court system can keep up. Private agreements, however, can mirror the shifting landscape of technology and privacy. Expect to see greater creativity in prenuptial and post-nuptial agreements dealing with this and other technologically based issues.

(picture credit: celeritystaffing.com)

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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; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty

Good luck pulling that off, pal.
Good luck pulling that off, pal.

Until something changes regarding same-sex marriage, Pennsylvania generally has a few pretty simply criteria for getting married: be over eighteen years of age; be of “sound mind;” be sober (at least at the time the license is issued); don’t marry your first cousin (or sister, or uncle, or mom – there are fourteen different iterations in the code), and; don’t be married to anybody else.

That last factor, believe it or not, is actually not listed in 23 Pa.C.S.A. § 1302 which identifies the restrictions on issuing marriage licenses. Instead, it can be found in § 1702 which addresses marriages during the existence of a former marriage. Under Pennsylvania’s law, being a “bigamist” (which is against the law) will not actually immediately invalidate a marriage. Section 1702 offers a wordy, if not pretty simple, analysis on how to handle that situation. It assumes the “bigamous” a marriage was entered into in good faith and if it turns out someone was currently married, but mistakenly thought that they were unmarried due to death, annulment, or termination of the marriage, the the subsequent marriage will be valid effective the date that prior marriage is officially terminated.

Basically, the accidental bigamist has an opportunity to cure the defect – maybe they need to have a decree entered; maybe their former spouse faked their death or they were so estranged for so long that they thought they were dead. Whatever the case, if the couple involved wants to remain married, they will have an opportunity to address the prior marriage.

On the other hand, bigamy is justification to annul a marriage under § 3304. The effect of an annulment is to treat the marriage as though it never existed. This could have major ramifications to the determination of a marital estate (i.e. there is not one). Not unlike situations we have seen with common law marriages, where a marriage is determined to be null and void, the protections a marriage affords people instantly dissolves: people own property as “joint tenants” rather than by the “entirety”; the appreciation on an asset is simply the titled party’s asset without any right by the other to the value through marriage. In short, the marital estate ceases to exist and titled ownership dictates who retains what. For a long marriage, this could leave the “dependent spouse” with little or no assets and property rights. A civil lawsuit might be the only option to recover any financial interest.

Such is the potential for Florida Congressman Alan Grayson. Congressman Grayson is in a bitter divorce with his wife and recently filed an answer to her divorce petition seeking to have the marriage annulled on the grounds that she never divorced her first husband. If successful, Congressman Grayson would have a twenty-four year marriage immediately voided. Since there would not be equitable distribution without a marriage, he is seeking civil damages against his wife in the form of ‘”all of the money and property she has received” during their “purported” marriage.’ He is also seeking custody of their five children.

Even under Pennsylvania law, if Mrs. Grayson were to cure the defect to the marriage, because there is no intent to remain married it is unlikely she would be able to establish her marriage to Congressman Grayson as valid. Moreover, even if she were successful on that point, there would be no marital estate because the establishment of the valid marriage would be superseded by the date of separation.

Photo Credit: The Bigamist

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

In a case decided by the Pennsylvania Superior Court on January 7 of this year, we have a new wrinkle in the world of what constitutes abuse under the Protection from Abuse statute.  23 Pa. C.S. 6102. The statute defines abuse to include knowing and/or recklessly causing rape, sexual assault or indecent assault. All of these offenses can be found in the Crimes Code, and no sensible person would argue that they do not constitute abuse. 

Strange facts make for strange laws, however. In Boykai v. Young, a Bucks County court was confronted with a situation where husband and wife differed over how often they should have sex. 2014 Pa. Super. 4 (2014).  The couple had married in November 2011 and by January 2013 the wife came to court seeking an award of support from husband although they still resided together. When she told the file clerk the facts she was referred to Legal Aid and that organization filed the PFA on her behalf. 

The case includes findings by the trial court that at times husband would physically overpower wife in order to have sex.  The couple had a child in April 2012 and wife testified that on at least one occasion, husband insisted they have sex despite a physician’s proscription against such activity for a period of six weeks. Husband testified that after the child was born he and wife only had sexual relations when she agreed. 

The hearing was held almost a year after the child was born. At that time wife offered that she had sought support because husband was withholding support unless she agreed to have sex on a daily basis. The opinion from the trial court then stated that “Husband still tried to force himself on her.” Unfortunately, it is entirely unclear what form this “force” took but it appears to have been a kind of economic coercion.  

The Superior Court affirmed a finding of abuse and exclusion of the husband from the household for a period of one year.  The Court paid particular attention to the “forcible compulsion” definition found at Section 3101 of the Crimes Code (title 18). There, forcible compulsion goes far beyond physical acts and includes “intellectual, moral, emotional or psychological force, either express or implied.” By this definition one could be guilty of a first degree felony premised upon conduct that a Court found to be implied moral force.  

Complicating this further were the facts forming the foundation for the “force”. According to the Superior Court opinion, the critical testimony was: “He stopped supporting me. He stopped paying my bills. Because he wanted to have sex seven days a week and I said, no, three days a week, And he said, no.“ The trial court opinion goes on to observe that husband perceived that his role as breadwinner entitled him to decide and that he would not permit his wife to work. 

While the parties to this case were both recent immigrants from West Africa, the issue is a source of marital disagreement throughout the world.  The Superior Court equated husband’s conduct in withholding money unless he secured sex on his terms to “intellectual or psychological force” as referenced in 18 Pa.C.S. 3101.  In a word,  both the trial court and the Superior Court here find that husband’s conduct constituted sexual assault as defined in 18 Pa. C.S. 3124.1.

This is a sad case; a fascinating case and a troubling one. The clear message is that any form of coercion, even moral coercion (if such a thing exists) constitutes a red zone of proscribed conduct. Both the public and the legal community need to understand that.  

Further recommended reading:  Com. v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010) which is cited by this opinion for the proposition that threatening suicide amounts to the psychological force necessary to sustain a rape conviction. A reading of Eckrote shows it to have facts far more compelling than the conduct described in Boykai.

 

One of the difficult aspects of taking a complex case to trial is not the subject matter, necessarily, but the Court’s ability to schedule several consecutive days of trial.  Due to case volume, the court administrators can rarely carve out two or more consecutive days of trial without significant advance notice and, often, direct instruction and assistance from a judge’s chambers. As a result, a judge’s schedule may require you to have a week-long trial spread out over several weeks or months. Not surprisingly, attorneys, witnesses, and even the judges can lose some of the thread of arguments presented in such a disjointed fashion.

An alternative to trial is to take the case to arbitration.  An arbitrator is a third-party hired by the litigants to basically serve in the role of a judge-like finder of fact. The parties sign an arbitration of agreement and usually stipulate to certain ground rules for how they will handle the arbitration. For instance, some parties make the arbitration “binding;” in other words, the arbitrator’s decision becomes the law of the case. 

Another advantage to arbitration is to help limit costs through the arbitrator’s assistance in narrowing issues and avoiding some of the costs of broad discovery. Because the arbitrator is hired by the parties, he or she works on the litigants’ schedule – the arbitrator can set aside a full week for trial at a time that works for all involved and take the time to really hone in on issues without being at the mercy of the court’s availability. Rather than prolonged discovery schedules and waiting for trial, the arbitrator can help move the case to swift conclusion.

Eliminating the pressure of having to fit a two day trial into an afternoon before a judge helps the parties and the courts. Arbitration is one of many forms of “alternative dispute resolution” and by diverting cases off the Court’s docket and into arbitration, the parties are helping to free up the Court to adjudicate other cases.  There is the added advantage of the parties that unlike a court proceeding, the parties can agree to make the record and information disclosed within the mediation confidential.

Finally, utilizing an arbitrator is often like hiring a mediator. Having already reached an agreement to arbitrate and move the case out of court, it may also be possible for the arbitrator to help facilitate other agreements between the parties, be they discovery rules, stipulations of fact, or interim relief.  Agreements often lead to other agreements and once the parties start to work together, it may be possible to resolve the entire case. 

Even where settlement seems impossible, by moving their case into a venue where they will help set the schedule, parties will know that on a definite date they will have had their “day in court” and can expect a decision from a finder-of-fact. The certainty of those two elements, alone, may be its most attractive benefit.

Rob Lowe LiterallyEliana Baer, a family law attorney in our Princton, New Jersey office, recently wrote a blog post highlighting University of Pennsylvania economist Betsey Stevenson’s divorce calculator.  Ms. Stevenson’s calculator basically lets you plug in your “stats” and it generates the liklihood you’ll be divorced at some point. 

It is a clever application but, as Eliana points out, is a product of demographical data rather than the root causes of divorce.  See Eliana’s post and some of her other interesting posts for more information.

 

(Photo Credit: www.geekbinge.com)

The rate divorce among couples in their 50’s or older has grown so much in recent years that it has earned its own moniker: gray divorce. A recent article in the Fiscal Times by Christina Couch highlights some of the financial issues which are resulting in retired couples spitting up. Not surprisingly, they are really not any different from the reasons why any couple decides to divorce. A generalization of the reasons would be that couples in their 50’s develop different expecations as to how to spend this time of their life. In many respects, the decision to retire or not retire; the type of lifestyle to live in retirement; or life goals closely mirror the same tensions younger couples have in their marriages.

People come into a marriage or grow within a marrige to have different goals for how they want to live their life. From the standpoint of what one person is prepared to accept in the other, the decision to retire at 62 while the other spouse works is not too dissimilar from a spouse in their late 20’s deciding to go back to go back to school or make a radical career change with finanical reprecussions. There are pressures which may not have been expected. From a financial standpoint, the couple may not have been on the same page as to the impact the retirement of one has on the financial stability of the couple.

Ms. Couch makes some connections that this growing segment of divorces is driven by demographics as much as anything: members of the baby boomer generation are living longer lives; women have had long careers and can afford to divorce; parties are not necessarily in disparate financial positions once they reach retirement age. As complications arise with health care, Social Security, and other retirement issues increase, the rise of gray divorce is not likely to subside; the possibility exsits, however, that some divorces could be prevented through communication and financial education.

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That divorce has a major impact on the lives of children is axiomatic; it is rare that a child is better served by their parents divorcing than if they stayed together (though exceptions exist where a child’s home life with two warring parents is far worse than a peaceful single-parent household).  Even if a divorce results in a better home life for a child, there is a psychological impact on a child and how they view and approach personal relationships as they get older.

In a recent article on www.sciencedaily.com, two studies are reported on which examined the impact of divorce when it occurs early in a child’s life.  In one study, 7,735 people were surveyed about their personality and close relationships.  More than one-third of the participants experienced their parents’ divorce at an average age of 9 years old.  These individuals were “less likely to view their current relationships with their parents as secure. And people who experienced parental divorce between birth and 3 to 5 years of age were more insecure in their current relationships with their parents compared to those whose parents divorced later in childhood.”

One of the doctors conducting the study, R. Chris Fraley of the University of Illinois at Urbana-Champaign, is quoted as saying, “[a] person who has a secure relationship with a parent is more likely than someone who is insecure to feel that they can trust the parent… [such] a person is more comfortable depending on the parent and is confident that the parent will be psychologically available when needed.”  The study also found that parental relationships with fathers are more affected by divorce than with mothers and that there is greater insecurity with paternal relationships than maternal.

These studies will undoubtedly inform and influence the counseling of children (and adults) affected by divorce.  Though divorces will occur, a greater understanding and emphasis as to how divorces affect people will hopefully result in children of divorce having better relationships with their parents post-divorce, but also have secure, solid relationships when they are adults.

A bill was introduced earlier this week in New York that would make further changes to the state’s divorce laws. These changes are interesting in contrast to the current statutes and precedent in Pennsylvania. 

new york

One of the more interesting changes is that, if passed, the bill would do away with the longstanding precedent that, in New York, professional degrees are marital assets in the divorce context. This portion of the existing New York divorce statutes created huge issues for attorneys and litigants. In contrast, professional degrees are not considered an asset in Pennsylvania.

The new legislation would also set formulas to determine the amount and duration of post-divorce alimony awards. In Pennsylvania, alimony awards are not determined by formula, but by a set of factors to be considered by the court.  

Additionally, alimony awards would no longer automatically terminate upon the receiving spouse’s remarriage. While the termination of alimony is negotiable in Pennsylvania, if awarded by the court, it generally terminates upon remarriage. 

While it is not often that a client has the option of forum shopping between New York and Pennsylvania, these potential changes in New York may make New York a more attractive jurisdiction for some.

 

If you have been reading or listening to the news in the past thirty days, the big economic news is that the bond market has gone to hell and mortgage rates are on the rise.  The mortgage change began in February but then just as quickly lost speed as March turned into April.  But if you look at the market in the last two weeks rates shot up 10% from 3.4 to 3.8 percent.  Most of us are not looking to buy a house this Spring so in one sense we don’t care, but if you are getting divorced and discussing the value of your home, there is an interesting collateral effect as the Federal Reserve signals that “cheap money” (they call it “quantitative easing”) comes to an end.

For the first time since 2007 buyers this Spring found that some houses were actually the subject of bidding wars while others sold at or near asking price.  Our experience is that this has not occurred across the board but principally with desirable houses in desirable neighborhoods.

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The reason for this is that buyers are nervous that as rates rise, they will no longer be able to afford the monthly cost of the higher mortgage and that they will “miss out” on the bargains of the past several years.  Fair enough.  The truth is that the huge bargains have been snapped up. And don’t be surprised that some of the folks who are buying today will be looking at their purchase a year or two from now with some sadness because demand for housing will weaken as the cost of buying rises.

But for each sale in this exuberant market there is a comp being posted on line that appraisers need to evaluate when deciding the value of a house undergoing valuation in divorce.  In theory, they could probably discount that comparable somewhat because of the sudden rush to buy homes.  They did the opposite in the down market when the only comparable might have been a house sold by a bank in foreclosure.

No appraisal can really dismiss a comparable sale because the market is “crazy” especially when it is not a distress sale but one in the open market populated with willing buyers and sellers. However, the fact that a neighborhood has a few sales at these new better prices does not portend a sustainable upswing.  People who are rushing to get what is left of 4% mortgage money better realize that they may stay in their home for several years to get the price they paid this Spring. And people going through divorce who would prefer to stay rather than move may well find that they “bought out” their spouse at a premium.

On a $100,000 loan amortized over thirty years the difference between 3.4% and 3.8 is only $23 a month or a little over $8,200 through the life of the loan.  Remember as well that this interest is typically a deduction from income for federal tax purposes.  That small amount is, of course, multiplied as the mortgage amount increases so that the $500,000 borrower is staring at a $40,000 difference.

 

(Image Credit: technodiaries.org)

The Pennsylvania Supreme Court recently accepted the case of Commonwealth vs. Spence, on appeal from the Superior Court.  This criminal case involves the issue of whether eavesdropping on a speaker-phone telephone call constitutes a violation of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.  The outcome of this case will have a significant impact on the introduction of electronic communication evidence in all types of cases, including family law cases.

In this situation, the confidential informant was a high school student arrested for illegal possession of prescription drugs.  The student was enlisted as an informant to try to arrest the dealer.  In doing so, a Pennsylvania State Trooper with the Philadelphia Vice Narcotics Unit had the C.I. call the dealer; put the phone on speakerphone in the trooper’s presence and order Percocet, OxyCotin, and Xanax.  The dealer was to deliver them in person to a local Wawa.  Upon the dealer’s arrival, the police were waiting and he was arrested for possession of a controlled substance with intent to manufacture or deliver, as well as a count of possession of drug paraphernalia.

 

At the criminal trial, the Delaware County Prosecutor had asked for a mistrial because they realized they needed to utilize the direct testimony of the confidential informant.  During that break between trials, the defendant filed a Motion to Suppress the evidence on the basis that the State Trooper had violated the Wiretap Act and that any evidence derived from that violation was barred from introduction into evidence.  The trail court judge agreed; the District Attorney’s office appealed and the Superior Court judges agreed with the trial court, leading to another appeal to the Pennsylvania Supreme Court.

 

The impact of this decision will reach beyond criminal cases.  A decision upholding the suppression of this evidence would mean that any time a person overhears a conversation on speakerphone that the potential would exist that that information could be suppressed presumably due to the speaker’s lack of knowledge or consent to expose the info beyond the intended recipient.  Family law litigation often employs the testimony and evidence from individuals who have overheard conversations or recorded conversations (in person) with an unknowing speaker.  The difference between a legal recording and an illegal recording can be a very fine line; the outcome of this case will further shape how electronic recordings are used and whether they will remain a legally reliable method for collecting evidence.

 

Additional information about this case can be found in "The Legal Intelligencer," May 3, 2013, Volume 247, No. 86.