The September 7 issue of TIME Magazine features our obsession with childhood sports.  The statistics tell the story.  In 2005, school age children played sports at a combined cost of about $8 billion per annum.  Today that number is about $15 billion, almost double. And, during this same period there was no increase in the population of American children.  About 73 million, then and now.  So, how about household income over the same period?  Nominally, it went from an average of $45,000 to $50,000, but if you adjust for inflation, it actually declined a little bit.

This writer’s conclusion?  Americans are spending money they don’t have on something they want and enjoy but do not need.  The cost of team sports for children is itself frightening.  Time reports these as average costs including enrollment, uniforms and lots of travel:

Lacrosse                $8,000

Ice Hockey            $7,000

Baseball/Softball  $4,000

Football                 $2,700

Soccer                    $1,500

Basketball              $1,150

This is not a sport economics blog but we see this every day in our divorce practices.  Parents fight over the logistics of these sport activities. They fight over who will pay.  They fight over whether the child belongs in the sport and, as we recently noted, whether the risk of injury exceeds the benefit.

As the cost of college rises, we also see many parents eyeing their children’s athletic skills as something they can capitalize upon in the form of athletic scholarships.  Putting money in a 529 plan is a tedious way to prepare for college.  But travel with the child’s team to Baltimore or Richmond to watch 72 hours of continuous soccer is now viewed as an “investment.”  Curiously, as time has passed, emphasis is now focusing on athletic performance at younger ages.  Time reports of colleges following “star” athletes at ages as young as 10.  Middle school is now where the talent is first evaluated.  This means, the sport and the child must be nurtured for seven years before the scholarship is awarded.  And, children are seeing repetitive motion injuries crop up more frequently because many of these sports are now scheduled “year round.”  A gifted basketball player cannot afford to risk his future by playing another sport where he could be injured, or worse-yet, his shooting and passing skills are allowed to wither.

In May, I testified before the Pennsylvania House of Representatives about some possible changes in support guidelines.  The witness before me was a Father who, together with his wife, invested heavily in a child’s future as a competitive snowboarder.  Much of this investment was borrowed using husband’s credit cards.  Shortly after it became clear that son’s snowboarding career did not have much promise, wife departed leaving husband with massive credit obligations.  Then she had the temerity to sue him for support.  He wanted relief from the support guidelines because a lot of his income was paying credit card debt associated with promoting their child’s sport.

I must confess, I did not have much sympathy for either parent.  But, as the Time article observes, modern day parents have difficulty saying “no” to their need driven kids.  What child would not want to go to Baltimore, stay in a hotel and hang with his friends while assembled to play back to back softball games on gorgeous college campuses?  Unfortunately, the psychological community is warning that in addition to premature serious sports injuries, many children and their families are starting to experience competitive sports burnout. Especially where scholarships are involved, many competitions and tournaments are mandatory because that’s where the college coaches and scouts are going to be found.  I spoke recently with a fellow lawyer whose child is still reeling from seeing that her son finished both college and his baseball driven career with nowhere to go.  His persona and all of his goals were erected around his athletic talent and now that talent no longer had value.

This is a bad cycle and one that often robs the children of their physical and emotional well-being while robbing their parents’ purse with little chance of return.  Each year about 400-500,000 high school kids play baseball, soccer and basketball.  Another 1.1 million play football.  The likelihood they will take this skill to the professional world is frighteningly small.  Baseball: 1 in 760; Football: 1 in 600; Soccer: 1 in 800; and, basketball: 1 in 1,860.  Sports have much merit. But all good things must come in moderation.

We live in interesting times. We have recently reported on significant cases discussing who has legal standing to seek custody of a child and whether that “standing” comes with a child support obligation.  But one bedrock that has been around for a while is what is called the presumption that a husband is father unless someone proves he had no access or was incapable of procreation.

It has been a presumption which today stands despite the fact that science now allows us to show otherwise. Genetic testing has been around for about 20 years and today it is considered the standard.  But the presumption of paternity is an interesting one. “A” may sleep with “B’s” wife but if wife becomes pregnant and B decides that he wants to play dad, the fact that “A” can prove that he is the real father is of no consequence.  That’s the law of Pennsylvania although this author believes it has some constitutional weaknesses.

In M.L. v. J.G.M, a case decided on January 4, 2016, the two parties were married in 2001.  They separated in late 2011 and divorced in September 2014, they had one child together who is today 10 years old.

As is happening with some frequency, the once separated Father started to have some thoughts about whether his child was, in fact, his child. Today, paternity tests are freely available so he administered one on the child (typically it involves an oral swab) and the test came back excluding him as the father.  Almost two years after separation he filed a petition in Berks County to terminate support.  He also sought blood testing within the court system to confirm that his drugstore test was accurate.  Mother filed to prevent the test.  The Berks County Court ordered the blood test because the marriage was no longer intact and the parties having been divorced several months before the motion was heard.

But the battle did not end there. The Superior Court had to wrestle with the Supreme Court’s ruling in K.E.M. v. P.C.S., 38 A.3d 798 (2012).  There the court held that paternity by estoppel will apply only where the doctrine promotes the best interests of the child.  In that case the father continued to promote his role as father even after learning from a biological viewpoint that the facts were not with him.  The Supreme Court ruling contained an eloquent reflection on how the passage of time leaves the child with no hope of finding the actual parent and the clear harm of losing the only father the child had known.  The language is moving but, unfortunately, science “moved” faster.

In current case as well as an earlier Superior Court case decided in 2011 (R.J.K. v. S.P.K., 32 A.2d 3d 841), the matter was remanded to develop a full record including psychological testimony related to the bond between the child and the presumed father.  The opinion of Judge Lazarus does a thorough job of analyzing what courts are to look to when building that record. But, build it as you may, when the dust settles there are going to be some angry adults and a bewildered child.  Typically we assume that these children are accidents or the product of loose morals on the part of both biological parents.  But not every man who sleeps with a woman gets an honest answer about her marital status or her views on birth control even if he does inquire.

And the forgiving husband who adopts the child of the casual relationship despite the infidelity may not always remain so honorable or caring. The difficulty we face today is that anyone can buy and employ a genetic testing service.  So while a Court may rule that “B” is officially Father in the Courtroom and the schoolhouse, it can’t, in practical terms try to prevent “A” from reaching out to his child or compel “B” to maintain a physical or emotional relationship.  In this case, it appears that damage has been done as J.G.M. terminated contact with the child just after her eighth birthday.  We can label him “dad” and we can compel him to pay support for her. But we can’t make him love her or “fix up” a family for this innocent child.

Almost twenty years ago, I was appointed to a committee of the state bar association to address this presumption issue. I was and, remain in a decided minority when I suggested that there be mandatory paternity testing at the hospital before a child is released.  If that had been done in this case the cards would have been on the table.  And knowing that the testing would be required, many couples would be forced to be more honest early on.  The trouble is that far too often, a secret is kept and the longer it is kept, the more damaging it becomes to the child involved.

On September 28, 2014 Aaron Weems posted a blog in which he reported on a panel Decision of the Superior Court holding that a Father’s contractual undertaking to pay $10,000 to a Mother each time he sought to modify an agreed custody arrangement was enforceable. When the Mother sued to enforce the contract term and the Father filed objections stating that the contract was in derogation of public policy.  The Trial Court sustained his objections and Mother appealed.  The three judge panel decision reversed the trial court but the ruling was later withdrawn so that it could be considered by a full bench; nine of the fifteen commissioned judges.  The matter was argued in the Fall, 2015 and a new decision was issued on February 5.

The crux of the issue remains the same. The parties indeed made a contract containing this $10,000 modification “honorarium.”  When Mother sought to enforce Father (a lawyer) claimed that while he did sign the contract, the provision could not be enforced.  The law of contracts has long held that some provisions are against public policy and that those are unenforceable.  The typical examples are contracts involving illegal activities.  But Pennsylvania also has a long history of cases holding that agreements that limit child support are subject to being set aside where the Court determines that the arrangement does not promote the best interests of the child.  The Granddaddy of these cases is one where a Mother agreed to $5 a month in child support because she felt confident that helping the Father afford medical school would ultimately benefit their child.

The defendant in Huss v. Weaver 2016 Pa. Super. 24 tried to argue his way into the tent affording protection from his own agreement on the basis that paying the $10,000 charge was in some way bargaining the rights of the subject child.  The Superior Court was not buying that; noting that this was not money coming from support or a fund for the child, but Husband’s own resources.  The Court also found that the agreement in controversy contained a statement that Father was an attorney capable of earning “a large salary.”  It also distinguished a case where the Court voided an agreement that provided for one parent to pay the other parent’s legal fees if she later sought to modify the support agreement formed by the parties. Kraisinger v. Kraisinger 928, A.2d 333, 345 (Pa. Super, 2007).

There is language in this opinion which suggests that at hearing on this claim, the Defendant may be able to assert that he should be absolved of his contractual undertaking if he could show that the $10,000 payment was an impediment to his seeking modification of custody. See Slip opinion at p. 12. That, however, is not a basis to hold the agreement as violating public policy on the basis of the pleadings.  The case was remanded for hearing.

Four of the judges joined in a concurring opinion that cautioned the trial court that if the Defendant develops the right record, he might win. Penalty provisions that do not relate to actual damages are not favored in law.  The concurring opinion also notes that if facts were established that the $10,000 payment was impeding a bona fide action to protect the interests of the child, the court might come out with a different result.  So in the end, all we really know is that this kind of payment clause is not per se a violation of public policy but that its invocation will be viewed with suspicion even when agreed.

In a year when there have been relatively few published opinions and few of those offering much precedential value, the year ends with an important ruling by the Pennsylvania Supreme Court.

The question in A.S. v. I.S. (8 MAP 2015) revolved around the matter of when a step-parent can owe child support.  In this case, a mother gave birth to children in Serbia in 1998 and later married the Defendant. Together they brought the children to America and the Serbian father of the children lost contact by 2006.  In 2009 Mother and step-father separated.  In July 2012 Mother expressed an intention to move to California.  Step-father filed to prevent that asserting that he was in loco parentis (in the place of a parent) and as such had custody rights under the statute governing standing.  Standing was sustained and the custody case concluded with the parents being awarded shared legal and physical custody of the children.  No doubt chastened by having her plans to relocate foiled, Mother filed an action for support to which step-father objected stating that his position in loco parentis did not imply a financial duty to the children.

Father’s position was sustained by both the trial and Superior Courts. Mother petitioned the Supreme Court to hear the matter and review was granted.

The 3-1-1 decision issued on December 29, 2015 does not establish a bright line test. Fundamentally, it sustains the view found in Com. ex rel McNutt. v. McNutt that step-parents are not generally liable to support children who are neither their progeny nor their adopted children. 496 A.2d 816,817 (Pa. Super. 1985).  See also DeNomme v. DeNomme, 544 A.2d 63,65 (Pa. Super. 1988)   It also approves the holding in Drawbaugh v. Drawbaugh, holding that assertion of “minimal” continuing contact with a step-child does not trigger a duty of support. 647 A, 240,242-3 (Pa. Super. 1994).

But here, step-father’s action to prevent mother’s relocation and his pursuit of shared legal and physical custody was enough to upset the general rule.

Noting that this case was analogous to L.S.K. v. H.A.N., 813 A.2d  872 and Fish v. Behers, 741 A.2d 721 (Pa. 1999) which dealt with facts giving rise to a form of equitable estoppel, Justice Baer writes that where a party assertively hold himself out as a child’s parent, that party may be held to the correlative duties of a parent.  He notes that step-father in this case assumed and vigorously pursued parental duties in trying to halt the relocation and in pursuing shared custody.

As noted, this is not a bright line test. One can read the majority language in page 13 of the opinion as holding that a step-parent may cross the “support” line by invoking judicial remedies of any kind.  Such an interpretation appears to be inconsistent with Drawbaugh. So finding the line where support may be due from a step-parent may not be easy but it seems clear from this case that stopping relocation and then securing shared custody is “enough.”

The opinion does also present a conundrum of sorts. The parties separated in 2009.  Step-father filed for divorce in 2010.  His complaint for custody was not filed until 2012.  All we are offered about the period between the 2009 separation date and the 2012 filing date is that the parties “informally shared custody of the children.”  We don’t know what that three year “sharing” involved in a physical sense and that prompts the question of how soon after a separation must a step-parent act to assert in loco parentis before he or she loses that status. Alternatively, what kind of sharing effectively “tolls” any temporal limitation?  In an age when serial live in relationships without benefits of marriage are increasingly the “norm”, can Boyfriend 1 sue for custodial rights when mother and child now reside with Boyfriend 3.

The recent Superior Court decision In re Adoption of M.R.D. and T.M.D. offers a new challenge in the context of who can be an adoptive parent.  While in her early 20s a young woman ventured to South Dakota to teach school.  She met a young man in 2002 and when she returned to Pennsylvania in 2003, he briefly followed her back here.  Just before he returned to South Dakota, it would appear that Mother became pregnant with twins.  They were born in Pennsylvania in October, 2004.  At the time Mother was living with her own Father.  The Father of the children did visit Pennsylvania to visit shortly after the children were born but he then returned to South Dakota and did not come back until 2006.  That trip was also a brief one and the Father did not encourage any visits in South Dakota by mother and children.  Later in 2006, Mother and the children moved into a rental home owned by her father.  South Dakota Father was aware of this move but little else changed and Father was last heard from in January, 2007.

In January 2013, Mother filed to terminate Father’s parental rights.  This appears to have been in response to Father’s action requesting an award of custody.  At the time Father had not seen the children in seven years.  His last written communication with the children had been in January, 2007.  It would appear that he provided little to no financial support since their birth.  And aside from the first two visits, Mother did not try to make the children aware of the identity of their Father.

What made this adoption unusual was the fact that for the second time in recent Pennsylvania history, the proposed adopting parent was Mother’s own father.  It appears undisputed that this gentleman had effectively provided the same kinds of parenting support that a natural Father is expected to provide.

The first part of the case was easy.  Father provided the textbook facts typical of parental abandonment such as would justify termination of his rights in an adoption.  The more difficult question was whether the children’s grandfather was an eligible adoptive parent.

In the 2-1 decision Judges Donohue and Stabile answered in the negative. They held that the purpose behind the statute remains “to foster a new parent-child relationship.” Absent such a relationship, the purpose is likely to provide disagreeable parents with a “new….dangerous, tactic” to employ in the world of child custody litigation; cross petitions to terminate. Accordingly, they reversed the Lycoming County ruling terminating Father’s parental rights.

The pinion properly observes that grandfather is functioning in many ways as a substitute parent. But the greater challenge here is that in a world where families are evolving as a matter of fact, if not necessarily as a matter of law, what does it take to qualify for the appellation “parent” besides biology or residence while married to a woman who has become pregnant?

We are commonly asked by clients:  “If my spouse has had no contact nor provided support for a period of six months or more, can’t I terminate his/her parental rights?” Under the Adoption law, that is true but most people miss the fact that the termination is part of an adoption that offers the child a substitute parent. If you have no player to sub for the parent who is not playing, you don’t have a basis to terminate parental rights.  And per this ruling (to which there was a length dissent) granddad is deemed an “ineligible receiver.”

 

 

Pennsylvania’s child custody code requires the submission of a criminal record and abuse history affidavit which is designed to identify whether a party to a custody action or a member of their household has been accused or convicted of a criminal offense. The crimes are almost all violent crimes or crimes of a sexual nature such as rape, luring, exploitation and other offenses. Obviously, the existence of these crimes in a parent’s background can have a significant effect on their custodial situation.

A loophole, however, existed which will hopefully be put to an end by a bill introduced in the Pennsylvania state house and senate designed to prevent a rapist from ever seeking custody of the child conceived from a rape. While it may seem inconceivable that a rapist could ever obtain custody of a child, the fact remains that under the black letter of the law, the rapist would have both a support obligation and standing to seek custody of the child they fathered.

The affect such litigation would have on the victim must be devastating and no woman should have to endure confronting their rapists in family court, let alone work out custodial exchange times. So while the child custody code may be able to use the criminal record affidavit to help justify precluding the rapist from having custody, nothing presently exists which precludes him from bringing the action and dragging his victim to court.

The Rape Survivor Child Custody and Support Act is being introduced by State Senator Randy Vulakovich (R-Allegheny) and Representative Joe Hackett (R-Delaware).  The new law would allow for the termination of the rapists parental rights, but preserve the obligation to pay support. Under the current law, the only way to sever a rapist’s parental rights would be through the adoption of the child. Doing so, however, would also alleviate any support obligation by the rapist.

As quoted by Kaye Burnet of Pittsburgh’s National Public Radio, Kristin Houser of Pennsylvania Coalition Against Rape admits that the number of women effected by this law may be small, but it is nevertheless a worthwhile and necessary piece of legislation: “[this] isn’t necessarily the result of egregious things happening on a regular basis here in Pennsylvania, but it doesn’t matter if it’s happening to a lot of people or just a few. It shouldn’t be happening at all.”

Seven years after becoming a signatory state to the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance, Congress passed and the President signed into law implementing legislation which will gives the treaty the procedural rules to operate. The purpose of the treaty is to provide a relatively uniform and consistent process among the signatory states for enforcement of foreign support orders.

The U.S. still has yet to ratify the treaty, though Secretary of State John Kerry points out in the linked press release that the Senate has already given its advice and consent for ratification. Once ratified, the U.S. will need to create an administrative entity to handle the enforcement of the foreign orders. Since the states already have well-established domestic relations units, I would think the main role of any Federal entity would be to simply act as the gateway into the system of registering the Order with the state or local domestic relations unit where the payor resides and utilize the state’s enforcement mechanisms to obtain the support.

We have several expatriate or naturalized citizen clients. Some of their concerns stem from whether their former spouse will reside back in their home country and make the enforcement of things like custody or child support difficult, if not impossible. This treaty, which will hopefully expand beyond the European Union, Ukraine, and some Scandinavian countries, can be an effective tool for ensuring that a parent cannot abandon their financial obligations to their children just by leaving the country.

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.

 

Part 2 of 2

4.            “The complaint is full of lies about me.”

Of course it is.  But by operation of law every allegation in the complaint itself is deemed denied until proven. So if your wife alleges that you make more money than she does and you should have to pay for her attorney, understand that this is nothing more than her claim and she will have to prove it at the appropriate time. You may have to prove someday that your view of these facts is correct and hers is not, but just because it’s in a pleading doesn’t make it true or believable.

Now, here is the hitch. What we just wrote is true about the divorce, support or custody complaint itself. But in the package of documents served on you may lurk separate motions or petitions that have a cover sheet telling you that you must answer in twenty days or risk bad things happening. DO NOT IGNORE these little documents. You do so at your peril. Also, a divorce complaint may be accompanied by an affidavit stating you have been separated for two or more years. That affidavit must also be answered in a timely manner.

5.            “There is no alimony in Pennsylvania.”

Guess again.  And while how and when alimony gets paid has changed markedly, especially in the past six years, there has always been alimony in Pennsylvania. In olden times it was granted in very unusual circumstances. Today it is more the rule than the exception.

6.            “It’s no fault, so you are divorced in ninety days.”

If only that were true. In Pennsylvania you cannot consent to a divorce until at least ninety days after the complaint is served. And then, only rarely do people both promptly file their consents. Even more bizarre, a spouse who sues you for divorce is not required to consent to the divorce he or she filed. It sounds strange but it happens all the time.

Some states like New Jersey take control of a divorce action and shepherd the parties through the process. Pennsylvania is not so sophisticated. People dally with the process and ignore the system. It makes the system grossly inefficient and expensive but after 33 years of experience, no one seems to care. All of us have had clients who professed to “change” the system once they got through it. None has followed through; probably because the system sapped their energy and their resources

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.