Vacation (custody) All I Ever Wanted - updated for 2017

With the arrival of Memorial Day weekend and the official kick off of summer, it seemed a good time to share my post regarding vacation custody time. While another year has passed, the thoughts remain and will likely continue to be true. If you have a child, and the other parent has ANY custody time, I strongly suggest you read the below post, and contact me if you find yourself in a situation requiring legal assistance.

I am sure that if you haven’t already, at some point this summer just about all of you have had a conversation with a friend or relative about their plans for their big summer vacation this year: where they are taking the kids, what they are doing, how much those ride-all-day passes cost at the amusement park, etc.

What they probably didn’t share with you is whether or not their attorney had to go to court to make that happen. Seems kind of crazy, doesn’t it? That somewhere between airfare, hotel rooms, and tickets to Wally World, your friend or relative may have also been paying someone $300 per hour to go to Motion’s Court to ask for permission for a relatively mundane thing like a vacation with their children.

Unfortunately, I can assure you that this is an issue that arises in family cases and which has me spending a couple of days every summer standing in Motion’s Court along with numerous other attorneys (also billing their clients) to fight about the right of someone to take their children to the beach.

Maybe some of you reading this had to do exactly that.

Maybe some of you reading this are the reason someone else had to do exactly that.

In either case, it seems like a timely topic and a good opportunity to provide some advice:

1. You aren’t stopping a vacation request.

Are you co-parenting with Charles Manson?

If the answer to that question is no, then the answer to their vacation request is yes.

Even people who have minimal custody time throughout the year are going to have some entitlement to summer vacation. Yes, there are exceptions.

Family court is ruled by exceptions, not governed by rules.

Certainly, if there has been a history of abuse, substance abuse, etc., this may raise more questions about vacation time than your average case, but even in these situations, chances are the other side is getting a vacation with their kids. They may have to take a supervisor. That supervisor might be a parent, sibling, or some other relative/agreed upon third party. People on Megan’s List have taken their children on vacation. I am aware of more than one.

Saying that the court recognizes a very strong right to be able to take your children out of town for a week would be a gross understatement. While there may be whistles and bells and stipulations, chances are the vacation is happening. As always, the particular facts and circumstances will dictate whether or not there should be strings attached, and if so, what strings, but chances are you are losing your anti-vacation argument, or at least compromising your position considerably.

2. No, there is not an absolute right to throw your child in the car and drive towards the sunset. Much like any other issue that involves co-parenting, there has to be a sharing of information. Both parties are entitled to know where their kids are, on vacation or otherwise. This is true whether they are in town or out of town. It is particularly true when crossing state lines, international boundaries, etc.

At a bare minimum, the other side should know where you are going, how you are getting there, and how you can be reached once you have arrived. Depending upon how much the parties trust each other, there could be more or less information that needs to be exchanged, like how often you will communicate with the children via phone, if there is to be Skyping, exactly what family members will be there, whether or not alcohol can be consumed, etc. Itineraries for flights should be exchanged, hotel address and phone number should be provided, and agreeing to send a text to confirm you arrived safely isn’t going to kill anyone.

3. Vacations are generally also a “good for the goose, good for the gander” situation. You would like to take a week’s vacation to the beach and you want to tell the other side that they can’t? Again, unless you are sharing custody with Charles Manson, they are getting the same vacation rights you are.

You will probably get the same vacation rights every year so long as you are sharing custody of your children. Some people need these to be memorialized and go into painstaking details in a formal agreement as to who gets to select their vacation dates first in odd years versus even years, how many days’ notice you must provide, how detailed your itinerary has to be, etc. But, again, you are going on vacation.

Quite frankly, in more than a decade of practice, I don’t know that I have ever seen a vacation request denied. Certainly not in a situation where someone has provided reasonable notice, has a reasonable plan and is willing to reasonably accommodate the concerns of the other side.

Noticing a theme about reasonableness here? It is the golden rule in custody arrangements between parties. Make reasonable requests, grant a reasonable permission, don’t pay $300 per hour to go have a judge decide whether or not your kid should get to go to Disney World. They probably already think that they do.

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ACBA Elections !!

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Same-Sex Marriage – Now We Know a Little More - May 2017

Last year, on the anniversary of a very significant court case which changed the laws regarding same-sex marriage, I posted about how the change in Pennsylvania and Federal law to recognize the right for individuals to engage in same-sex marriages still left a whole lot of unanswered questions about how exactly that was going to work through the court system. (See the post at https://uncouplingpittsburgh.com/same-sex-divorce-what-we-…/).

While the change in law clearly affected parties getting married prospectively, there were many unanswered questions about what would happen if a party who entered into a relationship prior to the change in law – when exactly did they get married in the eyes of the law? 

Would it be when the law changed? 

When they had a ceremony? 

Some other point in time?

There were a lot of unresolved questions that arose in the context of either divorce or separation, or with regards to potential estate claims.

Earlier this week, Pennsylvania Superior Court issued a ruling in In Re: Estate of Stephen Carter, Appeal of Michael Hunter No.1126 WDA which will help provide us with some clarity on this issue. In the case of the Estate of Stephen Carter, at issue was whether or not Mr. Hunter, Mr. Carter’s same sex partner, would have to pay estate tax after the death of Mr. Carter, which would not be owed if they were treated as married couple. The claim was made by Mr. Hunter how as the Court to declare that the two of them had a common law marriage which should be recognized by the estate court (Orphans Court) in Beaver County, Pennsylvania. The full Estate of Carter Opinion can be found here.
http://law.justia.com/…/superior-co…/2017/1126-wda-2016.html

For much of its long history, Pennsylvania courts have recognized two types of marriages in the Commonwealth: ceremonial marriage (i.e., in front of some sort of officiating individual with a recognized, issued-by-the-State certificate, probably with several witnesses, etc); and common law marriage. While common law marriage is no longer the law of the land, for many years, two parties who behaved in the manner of a husband and wife and who held themselves out to others as husband and wife, could be recognized, by law, to be husband and wife, even if there had been no formal marriage license, ceremony, etc.

While the recognition of common law marriages ended in Pennsylvania on January 1, 2005, the Commonwealth has continued to allow the recognition of common law marriages entered into prior to that date.

Please note that I do say “recognizing parties holding each other out as husband and wife” because during this period of time there was no such thing as same-sex marriage. Therefore, all of the case law and statutes speak in terms of heterosexual couples.

Just a quick note, it is a very common misconception that to be common law married, the couple must be together for period of seven (7) years. This is untrue. There is no particular time period associated with common law marriage. It has do with how the parties act towards one another and how they represent themselves to others. You can be common law married after seven (7) months or not be common law married after seventy (70) years. It just depends on how you behave.

In the instant case, Mr. Hunter began dating Mr. Carter 1996, proposed marriage Christmas of 1996, and the couple had an exchange of rings with one another on or about February 18, 1997. Their exchange of rings was nearly a decade prior to the change in law. Every year after the exchange of rings until the death of Mr. Carter, for seventeen years, the parties continued to celebrate this date as their anniversary. In addition, throughout this period of time, they lived together, shared finances, held themselves out as a couple, and in any and all ways, acted as if they were married, with the exception of the fact that the law would not recognize this.

Last year, the case came before Judge McBride of Beaver County. Mr. Hunters request to declare that the parties were married was not opposed by:

1. the Social Security Administration (who would have to pay out a benefit to the surviving spouse),

2. the Internal Revenue Service (who would not be receiving tax money if the marriage was recognized due to spousal exclusions on estate taxes), or

3. other possible beneficiary is of Mr. Carter’s estate.

Judge McBride, nonetheless, opined that it was not possible for the parties to have been common law married because same-sex marriage was not recognized at the time that the parties’ exchanged rings.

The Superior Court disagreed completely, finding that once it had been ruled unconstitutional to have prohibited same-sex couples to marry, all other portions of the statute flowing from that prohibition were, likewise, unconstitutional. As such, it was no more constitutional for the Commonwealth of Pennsylvania to fail to recognize same-sex common law marriage than it was it was to refuse to recognize same-sex ceremonial marriage.

While the laws regarding common law marriage have changed over the years, Pennsylvania does continue to recognize common law marriages that were entered into prior to January 1, 2005. As the legal analysis of the Superior Court in Carter set froth, the nature of the parties’ relationship was consistent with a marriage and met the requirements under case law to qualify as a common law marriage. The parties should, therefore, have been determined to be a married couple as of February 18, 1997, and have all rights associated therewith for purposes of Mr. Carter’s estate. The fact that they were a same sex couple should not put them in a different situation than a similarly situated heterosexual couple.

This does help to provide us with some guidance as to our determination of when a same-sex couple married under the eyes of the law, assuming they could prove common law status existing prior to 2005. However, there is still a great big question mark about what would happen to a couple whose relationship began after January 1, 2005, (when common law marriage stopped being recognized), but prior to May 20, 2014 when same-sex marriages were recognized in Pennsylvania.

During this period of time, a heterosexual couple who chose to forego a ceremonial marriage and remain ‘common law’ had other options. To the extent that the court does not recognize their common law marriage, there is a logical sense. You chose to not go do ‘A,’ but you still had the option to do ‘A,’ so we will not recognize ‘B.’

In the case of a same-sex couple, they would not have had a choice between A or B. They had no marriage option at all. It is possible that the courts would have to recognize same-sex, common law marriages during this period of time, but not heterosexual, common law marriages? Would that put similarly situated parties on different footing in the eyes of the law or were they already on such different footing that the only option we have to help cure the deficiency of our legislature and courts to not legalize same-sex marriage sooner?

As these issues continue to develop, I will continue to blog.

Thanks for reading, and please feel free to comment and share.

ACBA Elections - April 2017

Hey fellow members of the ACBA!

As I am sure you are aware, it is election season again and you should be receiving the link to the ACBA ballot shortly. This year I am running for the Judiciary Committee to help to assure that the voters of Allegheny County are afforded the opportunity to vote for strong, qualified judicial candidates.

I would greatly appreciate your vote and support. I'm easy to find on the ballot. I'm the last name on the Judiciary committee list :)

I thank you in advance for taking the time to vote for me.

Becky

Tax Season is Coming - April 2017

Many folks are filled with dread at the mere thought of having to sit down, pull out their W-2s, and work their way through that 1040. For many people, tax season is always a headache and one they would prefer to avoid, if at all possible.

For parties who have recently separated or divorced, tax season can bring with it a host of other issues that must be addressed in order to complete their taxes and file same in a manner that is not going to get them audited. If you have recently divorced or separated, you should consult with your account to see how you may be impacted these issues.

Separation and divorce can affect many aspects of how a party files their taxes – from their filing status, to the deductions they can take, to even the income they have to include. This is also an area that draws a lot of investigation from the IRS. Anytime someone declares a dependent or attempts to take a deduction for payment of alimony, they are required to include the social security numbers of their dependents or the party to whom they are paying support. If those social security numbers appear as dependent deductions on another return or the person who is indicated as receiving alimony did not declare same as income, it is basically like waiving a flag to the IRS and shouting to them that you would simply love to be audited.

As such, we as family law attorneys spend a fair amount of time in the weeks leading up to April 15th addressing these issues with clients, trying to assure the parties are filing consistent returns and/or providing consistent information to the IRS. Not everyone has the luxury of being able to afford an attorney and a private accountant to help you with these decisions.

As it happens, I recently stumbled across the below article that I think does a good job at hitting on a couple of the major tax issues that come up in the context of divorce and separation. They require a little bit of thought prior to filing tax returns. Rather than reiterate, I will simply provide the link here and say that it touches upon how separation or divorce can affect your filing status, division of deductions, use of credit, etc. and anyone who has recently undergone a divorce or separation should take a quick peak just to be sure that they have these bases covered. Nothing in this article or the article linked below should be construed as tax or legal advice.

Good luck with the tax deadlines.

http://www.wife.org/five-things-need-know-filing-taxes-divorce