GRANDPARENT CUSTODY - Grandparents Rights: Wrong?

Switching gears in what had been a few decades of continually expanding rights for grandparents in the state of Pennsylvania, on September 9, 2016, in the case of D.P. & B.P., his wife, v. J.P. & A.P., the Pennsylvania Supreme Court issued an opinion which would now serve to limit the times at which grandparents can seek partial custody of their grandchildren in Pennsylvania.

In D.P., the Court framed the question before them as being whether or not “the parents’ fundamental rights are violated by the conferral of standing based solely on a parental separation lasting at least six (6) months.” Take the legalese out of that, it used to be that any grandparent could sue for partial custody of their grandchild if mom and dad had been separated for six (6) months or more (or never together). There was no need to prove that it was in the best interest of the children for the grandparents to assert their rights--they got to do it anyhow and the resulting custody schedule would then be based on what was in the best interest of the children.

In D.P., the parents of the children had been separated for a few years, but never filed anything with the Court. The parents continued to co-parent and agreed between the two of them that the grandparents should not get to see the children. Approximately two years after the parties separated, the grandparents filed a Complaint for Custody asking for time with the children over the parents’ objections. The grandparents did not tell the Court anything to suggest that mom and dad were unfit or that the children were in any danger with mom and dad.

Under the existing statute, 23 Pa. C.S.A. 5325, this was an acceptable basis for grandparents to sue for custody. Attached is a link to the full text of the statute. After the grandparents sued, the parents indicated that the statute violated their 14th Amendment Rights to Due Process and Equal Protection. The Trial Court in Westmoreland County agreed with the parents, finding that the parents had a fundamental liberty interest in raising their children as they see fit. The trial court determined that the language in the Custody Act was not narrowly tailored enough to survive a strict scrutiny analysis as a matter of constitutional law. They found that the parents had jointly decided the children would have no contact with the grandparents and suggesting they were unfit to make this determination simply because they were separated would be an error. The trial court held that there was not an adequate basis to disturb the ordinary presumption that fit parents act in their children’s best interest.

The Supreme Court summarized the lower court’s opinion as follows: “in as much as the law presumes that married parents living together are able to co-parent their children without judicial interference, there is no constitutionally sound basis to support a classification whereby married parents who are separated should be treated differently.” In this regard, the Court indicated that, “The statute reflects an inappropriate ‘implicit presumption of unfitness’ attached to separated parents solely on account of their separated status.”

The PA Supreme Court’s opinion, linked here, (link) contains an interesting review of the history of grandparents’ rights cases in Pennsylvania, factually distinguishing them from D.P. as involving various cases of either parental unfitness, divorce, or death of a parent.
Counsel for parents further went on to differentiate D.P. as being a case where Court intervention was never sought by the parents, where they were never subject to an Order of Court prior to grandparents filing a Complaint, and where the parents did not disagree with regards to matters of custody or visitation.

The parents went on to suggest that, “Many couples who live together lead dysfunctional homes and make poor parenting decisions, all of which evidences the arbitrariness of §5325’s implicit assumption that separated parents are less fit as parents than those who live under the same roof. Consequently, parents proposed that the legislative classification which rests on that assumption does little to advance the state’s interest in protecting children or promoting their welfare.”
In its analysis, the Supreme Court recognized that grandparent visitation and custody statutes inherently authorize state action and are subject to constitutional limitations. It further went on to state that it is clearly undisputed that §5325 “burdens the right of parents to make decisions concerning the care, custody, and control of their children; that such right is a fundamental one.”

After an analysis of the arguments set forth by the parents and grandparents, the Court acknowledged that, very broadly speaking, the state does have the power to safe-guard children from various kinds of physical and emotional harm as well as promoting their well-being, but that right alone would not, in this case, extend to allow the Court to intervene in a family who never sought the Court’s involvement, stating, “As this case shows, when parents separate they do not always initiate divorce proceedings or otherwise request court involvement in their family affairs.” “Although separation may involve a disruption of the nuclear family unit, the children are often shielded from having to participate in court proceedings and are, likewise, free from having to assimilate the knowledge that the government is now involved in their family life.”

The Court also noted that the grandparents failed to present to the Court empirical data which would suggest the separation has the same deleterious effects on children as divorce. As this type of information was presented in prior grandparent cases, the court did not change the part of the statute that allows grandparents to seek custody when the parents are divorced or deceased.

The Court did note that parents who were involved in divorce proceedings or who were divorced could potentially agree to limit their children’s contact with third parties but declined to address that issue in its opinion, as the only issue before it was whether or not the parents could do so when merely separated. The Court noted that they found court-mandated association with third parties more intrusive to parents’ constitutional rights when they had not themselves sought the Court’s oversight relative to custody or marital dissolution.

After its analysis, the Court found that the language of §5325 relative to grandparents’ standing in the event of a six (6) month separation was “not narrowly tailored in furtherance of a compelling governmental interest” (meaning it was not structured with precision and that the legislature could have chosen a less drastic means of effectuating objectives).

The Court finally noted that in confronting a constitutional flaw in a statute, they are to provide a limited solution affecting only those unconstitutional portions of same. As such, the Court only removed the second portion of Paragraph 2 with regard to six (6) months separation to be invalidated.

However, it appears from the language of the Court’s main opinion, as well as the dissenting opinions entered by Justices Baer and Wecht, there are still concerns regarding the constitutionality of the remaining provisions of 23 Pa. C.S.A. 5325.

Does this affect your rights with regards to custody? If you think it might, you should speak with an attorney.

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www.uncouplingpittsburgh.com

http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm…

http://law.justia.com/…/supreme-cou…/2016/25-wap-2015-0.html

CHILD CUSTODY - What the Heck is Generations - Part 2

So, if the parties end up in Court, and aren't able to work out a custody schedule/parenting plan in their mediation session, there is still a long (and expensive ) road ahead of them:

A Generation’s Conciliation where the parties come with their attorneys and meet with a generation’s conciliator:

A judicial conciliation where the parties come with their attorneys and meet with the judge. There may be more than one of these if perhaps the judge wants the parties to go to the Impact program (drug and alcohol testing), psychological evaluations, or other treatment or testing. Typically, the judges will have a second conciliation to review the results of any testing;

And, if the parents are still unable to resolve matters, they proceed to trial.

I will be doing a separate post about some of these later steps, along with want to expect and how to prepare over the next few months.

I want to emphasize for anyone reading this that the custody system is not set up for you to get your day in court. It is directly set up to remind you that your day in court may well be something you don’t want, that is bad for you, that is bad for children, and will cost a whole lot of money and headache. The system is designed to give you enough information that you should understand settlement and reason are preferable over litigation and naked emotion. It is very easy to be angry in a situation where you are deciding custody of your children. Often this can come on the heels of very difficult and tumultuous time in your life while you and your significant other have decided to no longer reside together as a couple. The pain and anguish the parties feel going through this process as well as the custody process creates a lot of very strong emotions, many of them focused towards anger, hurt, and heartache.

The entire Generations process and similar processes in other counties are designed to try to help you get past those basic emotions and move forward to a more enlightened position--focusing on co-parenting and working together rather than driving each other further apart.

In addition to the court system that will provide you with some background as well as bring you to a mediation session, the parties are free to and should regularly consult with their attorneys to get a perspective as to how the law would be applicable in their individual case. Custody is remarkably fact specific; we have over a dozen factors that the court can look at to determine what is in the best interest of your child and no two cases are exactly alike. Receiving input from an attorney will help you address how to best move forward through the system to reach a resolution that addresses the best interests of the children.

At all times throughout the process, the parties are free to engage in discussions directly with one another or through their attorneys to try and reach a resolution. You are not required to go to court if you can work out an arrangement that the two of you find to be acceptable under the circumstances. Seeing as how this is the goal of the court, it should be your goal as well. Anyone who is facing potential custody litigation, or has already found themselves in same, should consult with an attorney to get more information about the specifics of their case. Also, please speak with a counselor who can help you address the often difficult feelings that come as part of the custody process.

If you found this post to be helpful or if you have any questions, please feel free to comment, post, share, like, etc. and visit www.uncouplingpittsburgh.com or call me at 412-261-9900 to schedule a consultation.

CHILD CUSTODY - What the Heck is Generations - Or, How a Custody Action gets started

As I have mentioned before, one of the very common issues that comes up as part of the uncoupling process is how to address custodial arrangements for any children born of the parties’ relationship.  To be honest, that statement doesn’t actually cover all of the possible custody actions in Pennsylvania.  Obviously, children don’t necessarily have to arise out of relationships that would come with other uncoupling issues.  Further, there can be custody actions brought by “non-parents” like step-parents, grandparents and anyone who stands “in loco parentis” (which basically means that they discharge the duties of a parent regardless of their actual biological relationship to the child). 

In any case, to the extent the parties are able to do so, it is considered preferable to be able to work out a custody schedule between themselves.  While they will need an attorney or the court system to confirm the schedule by way of a written Agreement or Order that gets filed with the court, working through it together not only saves on time, expense and frustration, but also helps to start a healthy co-parenting relationship from the very beginning. 

However, not everyone is so fortunate, and they must proceed through what in Allegheny County is called the “Generations” process.

In Allegheny County and across the state, the entire custody system is set up with the fundamental goal of being able to reach settlement of the parties’ outstanding issues without the need for a trial.  Your custody action may go on for a very long time before you are entitled to a final hearing.  This is by intentional design in hopes that providing the parties with some education and compelling them to attempt to work through their issues, there will not be a need for a formal hearing. 

Here in Allegheny County, the process in place is called the Generations Program.  In Westmoreland County it is the CHILD Program.  Different counties have different names, but for the most part they all boil down to two components.

Once you file a Complaint for Custody you will receive, from your respective court, a “Scheduling Order.”  This Scheduling Order directs that each of the parties (and, in some cases, the children) must participate in the court’s custody process. This process typically includes an education session as the first step.   It has always been my strong belief that a little information can go a long way in forming the parties’ expectations and their ability to work through issues together. It seems that the court system shares in this belief.

This court-ordered education session lasts for several hours.  In Allegheny County, it includes the parents as well as children between the ages of 5 and 15.  The requirement for children to be involved varies from county to county.  You should always consult your local rules before making assumptions as to whether or not the children will be involved in this process.  However, across the board, the idea is that the education session provides the parties with information regarding how physical and legal custody work, the types of decisions that they need to make together, and that they must share input and information  with regards to their child. In general, it reinforces the idea that while you may no longer be an intact family, you must still function as an intact parenting unit and work with each other for the betterment of your children. 

It is generally understood that it is in the best interest of children that their parents be able to cooperate with one another and to share custody, both physically and legally. 

In addition to being scheduled for the education session where they get some of this co-parenting background, the parties will also be scheduled to appear for a mediation session.  In some counties, the first session includes the attorneys, but here in Allegheny County, it is only the parties that appear for the mediation session.  They come unrepresented and meet with a mediator who assists in trying to engage in dialogue to help them resolve their outstanding custody issues.  They will have the opportunity to present what schedule they would like to see, why they are opposed to the other side’s schedule, what issues can be worked through to try to resolve these differences, etc. 

If the parties are able to reach an agreement through mediation, this agreement can be memorialized and executed by both of the parties as a final agreement as to custody.  If they don’t reach an agreement, they will continue to move through the custody process which I will discuss in my next post.

If you found this post to be helpful or if you have any questions, please feel free to comment, post, share, like, etc. and visit www.uncouplingpittsburgh.com

CHILD CUSTODY - Vacation (custody) All I ever Wanted

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.

If you found this helpful, please like and share.

Same Sex Divorce - What we know So Far

Two years ago today, on May 20, 2014, the Supreme Court of Pennsylvania ruled in the case of in Whitewood, et al., and determined that same sex marriage would now be recognized in the courts of Pennsylvania.  As of that date, despite the fact that it was not yet nationally recognized, the state of Pennsylvania determined that they would extend the right of marriage to same sex couples throughout the Commonwealth of Pennsylvania. 

The opinion issued by the court, which is linked below, (http://www.pamd.uscourts.gov/sites/default/files/opinions/13-1861.pdf) went on to state that Pennsylvania, in addition to recognizing same sex marriages performed within our state, would also recognize same sex marriages from other states.  This would mean that any same sex couples would have all of the rights, and also the responsibilities, that came with traditional marriage, including, though not specifically enumerated in the opinion, the right to divorce.

It would be more than a year later, specifically on June 26, 2015, until the Federal Courts, by way of the Supreme Court opinion in the case of Obergefell v. Hodges, would determine in that these rights should be extended nationwide. It seemed that this very emotional, complicated issue of same sex marriage had been rather succinctly resolved by the courts. 

However, neither the Supreme Court’s opinion nor the State of Pennsylvania’s opinion spoke much about same sex divorce.  The fact of the matter is that most people do not generally enjoy discussing divorce.   Thus, it is probably not a great surprise that when issuing this ground changing legal precedent, that the issue of what happens when a same sex marriage ends never made its way into the courts’ opinions.  Same sex divorce, however, has made its way into our courts, and with it comes a host of novel issues which have yet to be resolved through either legislation or through court precedent. 

In the case of a same sex marriage, one of the most difficult questions to determine is what is the actual date of marriage?  The actual date that the same sex couple became a legally recognized couple has been subject to a fair amount of argument in this burgeoning area of law.

Let’s look at a hypothetical situation:

Let’s say we have same sex couple who met in Pennsylvania in the early 1990’s, dated for a period of time, and began living together in 1994.  Then, in 2005, the couple traveled out of state to New Jersey to obtain a civil union and then returned to Pennsylvania.   

On exactly May 25, 2014, just a few days after the Pennsylvania court’s May 20, 2014 decision, the couple decided to become legally married in Pennsylvania. And on June 26, 2015, the Supreme Court said they were married in all 50 states now.

 Then, in May of 2016, the couple separated.

So When Did They Get Married??

The federal government has only recognized same sex marriage for a period of eleven months, but Pennsylvania’s May 20, 2014 ruling allowed this couple’s marriage vows to take place in Pennsylvania on May 25, 2014, and be legally recognized and recorded like any other marriage. 

However, the hypothetical couple’s civil union in New Jersey began ten years prior to their legal marriage in Pennsylvania.

 Further, the date they began to reside together as a couple, in 1994, predates their legal marriage by another decade. 

There is no real answer to this question yet; because there is no prevailing case law, the question remains to be answered.

Did the couple marry on June 26, 2015, when the Supreme Court recognized same sex marriage?  Probably not. 

The states have the right to afford greater protections and rights to their population than those afforded by the federal government.  Basically, the federal government’s rules and rights, etc., are your baseline.  The states have a fair amount of latitude to expand upon those federal laws, and considerably less latitude to infringe upon them.  As such, June 26, 2015 would not be the couple’s date of marriage, given that Pennsylvania’s right to issue an earlier ruling on same sex marriage occurred on May 20, 2014. 

Did the couple marry on May 25, 2014, after the Pennsylvania Courts ruled in the case of Whitewood?

This date was when the Pennsylvania Court recognized same sex marriage and permitted the issuing and recording of same sex marriage licenses.  However, in the case of our hypothetical couple, they were together for more than twenty years prior to the state’s ruling.  Does that count for anything?  The case of Whitewood also gave full faith and credit to marriages occurring in other states stating “and already married same sex couples shall be treated as such.”  

So did this couple’s marriage begin in 2005, since they obtained a civil union in New Jersey? 

This date may not be right either because in Whitewood, it states that there will be full faith and credit to “already married” same sex couples.  It does not say civil unions, and it does not say domestic partnerships.  If one looks to the laws of New Jersey, they have, at various points in time, recognized domestic partnerships, civil unions, and same sex marriages.  Each of these is a separate legal animal, and none of them automatically converts to the other. 

So…can Pennsylvania give full faith and credit to a New Jersey civil union, and treat that as the date of marriage?  Maybe.  Some courts have done this, though I think a technical reading of Whitewood does not extend that far, which leaves this issue unresolved.

Finally, did the hypothetical couple potentially marry back in 1995, when they began living together?  Again, this is a maybe. 

Historically, Pennsylvania recognized common law marriage, i.e. people are married if they held themselves out to the world as “husband and wife.”  Obviously in this case we are talking about “husband and husband,” or “wife and wife,” so is it possible that it should still hold true?

While the divorce code amendments of 2005 directed that common law marriage would no longer be recognized going forward, there was no prohibition on looking back on common law marriages that came into effect prior to the 2005 amendments.  

Is this perhaps what should be happening with same sex marriages?  Maybe.  But again, the fundamental issue is this: Is it even possible for two people to hold themselves out in a husband and wife like manner, when the right to be husband and husband, or wife and wife, did not exist for them?  Heterosexual couples who decided to act as husband and wife, but not solemnize their marriage, had this other option.  With same sex couples, this option did not exist.  Again, this would only be applicable in a situation where the parties’ relationship predated the 2005 divorce code amendments, and the relationship existed for a duration of more than ten years.

What happens with relationships that existed for less than ten years?  This is an excellent question, because nobody knows for sure at this point.  Many arguments have been made that the courts (in their efforts to effectuate economic justice), should look to the period of time that the parties were in a relationship, but not yet in a legally recognized marriage.  Of course, this opens the can of worms for heterosexual couples who had resided together for long periods of time prior to actually getting legally married to argue the same thing.  However, there is a factual and a legal argument to be made that the two are not analogous, since the heterosexual couples would have had the right to get legally married had they so chosen.

So when did they get married? 

Over the years, I am sure this area of law will continue to develop and ebb and flow, but for now, there are a lot of unanswered questions.  We will keep you posted as new case law begins to develop, which hopefully will not take very much longer.

If you have found this post to be interesting, please feel free to share it, and to like my page.  I would love to hear your thoughts in the comments section below.

Thank you.

www.uncouplingpittsburgh.com

DIVORCE - Making Ours Mine - Division of Assets in Pennsylvania

One of the issues that comes up in all most every divorce and in many separations is how to divide property that parties acquired during their relationship.  Unfortunately, if this relationship was not a marriage, it can be very difficult to figure out how to distribute jointly titled vehicles, homes, and other assets and it may involve numerous separate actions to address these items. 

If the parties who are uncoupling were married, the Divorce Code sets forth well-established rules and guidelines for how to divide those assets that they acquired during the marriage through a process that we call “equitable distribution.”   Many clients I meet with are surprised to learn that, in Pennsylvania, assets are not divided equally.  While they may be, it is not an edict that everything is distributed 50/50.  The court engages in an analysis of numerous different factors to determine what division would be equitable under the circumstances and tries to “effectuate economic justice between the parties.”

What does that mean?

I recently came across a very good quote out of Miller v. Miller, 783 A.2d 832 (Pa. Super 2001) which describes it as follows:

“The methods by which divorcing parties effectuate economic justice are familiar and well settled.  The process of equitable distribution is an exercise in martialing, valuing and dividing the marital pot in a fair manner.  Not every piece of property can or should be split in half.  Sometimes one spouse is entitled to more property than is the other.  In some instances, the sale of property must occur so that each spouse can receive his/her rightful amount.  In other instances, a spouse may be allocated a specific item of property and the other spouse will receive cash or credit for his/her share in that same item.

In all of these scenarios, whether the property division is done by an agreement of the parties or a Court Order, the goal is the same: to take the assets of the marriage and divide them in such a way as to effectuate economic justice between the parties.” 

So, what have we learned from the above quote? 

Frankly, we learn a lot from this little quote. First off, there are a lot of ways to “skin the cat.”  Not only will no two people’s cases play out exactly the same (so just because it happened in your buddy’s divorce doesn’t mean it is going to happen in yours), but it may also be that no two assets in the marital estate are divided the same. 

The courts do not go through the list of marital assets and divide every single one 50/50. 

One asset may be offset against another, i.e. “you are keeping the house, so I am keeping the checking account.”

Or some assets may warrant being skewed more in favor of one party than the other.  So, your overall division of the marital estate might be 50/50 but somebody might get 70% of the fair market value of the property that they inherited two years before separation but retitled in joint names (see my prior post with regards to the “Transmutation of Assets”).  Since the other side didn’t really do anything to generate this asset, this skew in favor of the inheriting party may seem more “just” to the Court.

As stated in the above Miller quote, a big part of the equitable distribution process is to identify the assets and liabilities that are in the marital estate and determine their values.  If you don’t know all of the assets or their values, you may need to engage in discovery, which is a topic I am sure I will get around to discussing at some point.  Thereafter, the Court would move forward with dividing these assets in a manner that seeks to effectuate economic justice. 

It is also important to note that it is well within the authority of the Court to order you to sell off your belongings.  While they are generally not looking to have you fire sale every item you have acquired in the course of your marriage, it may be necessary for a piece of the marital estate to be sold.   Simply because one party may desire to retain an asset, if it is not economically feasible, it may be ordered to be sold by the Court, even over your objection.  

All of the above issues will depend upon the Court’s analysis of what we call the “equitable distribution factors” set forth in the Divorce Code. There are twelve different factors that the Court can take a look at to decide the fairest way to divide assets between the parties.  They may look at the length of marriage, the incomes of the parties, one party’s contributions to the marital estate as a homemaker, what separate assets either party might have beyond the marital estate, etc. 

The Court’s analysis of these factors as applied to the specific facts of each individual case dictate how the Court fashions its award for equitable distribution, which, as stated, may be an equal 50/50 division, but may not.  Again, like with all matters that fall into the Family Court, the determinations that are rendered are usually very fact specific and the change of one of the characteristics about a party or their marriage may have a significant impact on how the marital estate is most equitably divided.

Again, if you are contemplating divorce, for more particular guidance with regards to how your marital estate may be divided, you should consult with an attorney who can review the history of your marriage and the assets that comprise the marital estate to provide you with more specific advice unique to your situation.

If you found this article to be helpful, I ask that you please share it and “like” my page.  As always, if anyone has any questions or suggestions for follow up topics, please comment below. 

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CHILD CUSTODY - But what if we can’t agree? Ways to resolve legal custody/co-parenting issues.

In light of the fact that the vast majority of parents share the right to make major decisions with regards to their children (as discussed in my last post), it is not uncommon for disputes to arise between them as to what is in the best interest of their child. There are several ways they can go about trying to resolve these issues:

1. Litigation: Right, wrong, or other, a traditional way to “resolve” these disputes has been to run to court. In Allegheny County, there is at least one judge hearing motions pretty much every day of the week—sometimes as many as three. A lot of what fills their dockets is people coming to court because they have not been able to make a decision regarding the upbringing of their child.

To the extent that anyone may be harboring delusions to the contrary, let me be clear: The judge does not care about your child’s soccer participation. They don’t care if they play, they don’t care where they play, and they don’t care how well they play. To the extent that you are paying an attorney hundreds of dollars per hour to go to court to try to convince the judge to care about those things, you are wasting your money.

Does this stop people from going to court about these issues? No, not at all. It is probably half of what the judges have to endure each day they hear motions. However, the court does not wish to micromanage the raising of your children or any of the other legal issues that may arise in the course of your uncoupling. I therefore advise people look into some of the alternatives below.

2. Mediation: As I discussed in a prior post, in mediation in PA each of the parties appear together with the mediator to try to work through issues that they have not been able to resolve between themselves. The focus of mediation can be as broad as all support, asset division and custody issues arising in a divorce, or it can be on an isolated issue, like where a child should go to school. A mediator helps guide the parties to a mutually agreed upon resolution and largely serves to help facilitate a dialogue between the parties to reach an understanding and compromise. What happens in mediation is not, however, binding between the parties and they will need to have a formal agreement drafted by attorneys to confirm any arrangements to which they agree.

3. Collaborative Law: As I have talked about previously, in collaborative law each of the parties hires a collaborative attorney and agrees that they will not pursue litigation at any point in time—otherwise they must remove themselves from the collaborative process and find new counsel. Depending upon the nature of the dispute between the parties, they may require the assistance of a collaborative coach to help facilitate their conversations and ultimate resolution. They may also employ a child specialist to provide input from the children involved or a financial expert if matters relative to money are in play. Again, the topics addressed can be quite broad, involving a wide range of issues attendant to uncoupling or more specific discrete issues. At the end of a collaborative process, with the assistance of their collaborative attorneys, parties will enter into a finalized agreement with regards to their collaborative agreement.

4. Co-parenting Counseling: Sometimes, if the parties are having difficulty reaching agreements with one another or being able to share in their co-parenting responsibilities, the court may refer them to co-parenting counseling. In this arena, the parties work through a therapeutic process with a counselor who has a focus on assisting them in improving their relationship with one another as they go about raising their child together. This can be very helpful for people just starting the uncoupling process, as many of these counselors provide insight to the parties’ communication style and where they have difficulty hearing each other and voicing concerns. Parties can be ordered by the court to co-parent counseling and this will often happen if you show up too many times asking the court to micromanage how you are raising your child.

5. Co-parenting Coordination: This was all the rage a few years ago. Parties who exhibited extreme difficulty in working through their co-parenting issues would be sent to a parenting coordinator, who would hear their minor custody disputes. (Usually this happened after parties tried to use the litigation route too often.) The co-parenting coordinator would have the authority to order the parties to do certain things. The parenting coordinator, in essence, acted like a mini-judge that would hear smaller disputes with regards to activities, exchange times, etc., but could not make major changes to the physical custody schedule or the parties’ legal custody arrangement. However, co-parenting coordination has fallen out of favor with the courts, and judges can no longer order parties to participate in the process. However, there is no prohibition on the parties jointly agreeing to enter into co-parenting coordination together and agreeing to be bound by what decisions the co-parenting coordinator might make if the parties are unable to reach an agreement. Similar to going to court, co-parenting coordination was more an avenue of last resort than a first choice, as needing a third party, be it a judge or a coordinator, to make decisions for you is an indication that there are significant communication problems between the parties.

6. The final and probably the best answer to all this is simply talking to each other. While you may need to speak with an attorney to hear what your rights are or speak with a counselor to understand better how your relationship with your co-parent affects you, the most cost effective, long term, and relatively simple answer is to figure out how to work with each other. Maybe you are better if you only communicate via emails, maybe it’s better if you only communicate via telephone, maybe you should try to minimize your communication as much as you can, but the bottom line here is you have to learn how to communicate with each other and the sooner you can get yourselves to a point where you don’t need third parties to help you do that, the better off you probably are.

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DIVORCE Should I Stay or Should I Go Now: A Legislative Update

Some of you may have read my prior blog posts regarding establishing separation and how that can affect your rights to support, custody, equitable distribution, and ultimately, a Decree in Divorce.

As I mentioned in those posts, in Pennsylvania we have what we call a two-year waiting period. What this ends up meaning is if one spouse wants to have a divorce and the other does not, the parties must be living separate and apart for a period of at least two years before the court has the right to issue a Decree in Divorce. For example, here in Allegheny County you cannot even have a meeting with the judge and start talking about the distribution of your assets until that two-year mark has been reached. (Obviously, this is not true in cases where you want to work together to try to reach a resolution, mediate, collaborate, etc. You are free to discuss these issues at any time. This is one of the advantages of pursuing resolution of your matters outside of the court context).

For a very long time, there have been concerns that this two-year waiting period is not necessary, and that it needlessly prolongs the divorce process and otherwise makes things longer, more costly and more difficult for the parties. It should be noted that the separation period used to actually be three years and was moved down to two sometime ago. There has, intermittently over the last several years, been a push to try to reduce the two-year waiting period to a one-year waiting period. A one-year waiting period would be more consistent with many of our neighboring states, some of which require only six months between separation and when the court has the right to enter a Divorce Decree. House Bill 380 was introduced to reduce two-year waiting period down to one.

This legislation was proposed in the House and was approved by the House after which time it moved into the Senate. As of last week, the Bill was approved by the Senate’s judiciary committee, with only one of the fourteen votes being against it.

It is anticipated that the Senate is going to have a full vote on the fate of HB 380 in the near future. Under the terms of the Bill, it would be effective sixty days after its passing. So, the waiting period could be changing soon. The potential of changes to this waiting period may be something you wish to consider, when determining whether or not it is in your best interest to separate at this time.

I will keep you posted as to when this goes to a full vote and may be signed into law. For now, the two-year waiting period remains, but this may not be the case for much longer.

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DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW - PART 3

So how do you show you’re separated, you ask?

Well, what is separation can be very tricky. It is a fact specific determination that is not terribly well defined. The rule is that you “stop living in a husband and wife-like manner.” (The quote is old. This works the same way for same sex couples now that same sex marriages are recognized in PA.)

Whether you “are living in a husband and wife-like manner” is very specific to an individual couple, as you look at how your lives have changed since the alleged separation date. The most important fact, though, is did you both know you were separating? If you move to another state to get your master’s degree, and a year in decide you want a divorce, you didn’t separate when you moved for school because neither one of you knew you were separating at that point. If you have this epiphany a year in, but don’t tell your spouse for another year, guess what, you just now separated (two years after you moved) because you didn’t realize you were separating when you moved there, and while your feelings may have changed a year earlier, you didn’t tell your spouse that until now. Everyone in the relationship must be on notice that the relationship is ending. Notice can be verbal or in writing.

Under law, the date of filing a divorce is a presumptive date of separation, but either party can present evidence they separated earlier or later if things move forward in court. That’s were a written notice of separation can come in handy.

However, actions speak louder than words. If you say “separation” but keep acting like spouses, well, then you might not have separated. The words themselves aren’t magic and the Court will look at what you have been up to since you said them.

Nonetheless, nothing is getting done over one side’s objection until the two year waiting period has been met. If you are thinking about separating from your spouse, I highly recommend that you speak to an attorney to know your rights and obligations in the event of a separation within or outside of the home, and how to go about letting the other side know that you are, in fact, separating.

As I always point out, separation—even the very beginnings of separation—can impact every single aspect of your life, will impact you legally, financially and emotionally.

It is important to get the correct information to know what to expect. Consider speaking with a counselor, either individually or as a couple, before facing these changes. Be sure of your feelings. Once you are sure of your feelings (or at least pretty sure) talk to a lawyer to get some idea of what to expect from separation and/or divorce.

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DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW PART 2

SHOULD I STAY OR SHOULD I GO NOW  - PART 2

Separation also affects support.

If you are talking about physically separating, and you are no longer sharing the household expenses, this can trigger a right to support even if a divorce complaint has not been filed. That can include spousal support for a lower wage earner and child support depending upon your respective incomes and custody arrangement. While two parties are still physically in the same home, it is largely assumed that there is not a need for support so long as nobody is being left completely penniless and the bills are getting paid.  When you stop being under the same roof and this stops being the case, you can find yourself facing a complaint for spousal support and/or child support.

It is not necessary to stop living in the same home to establish separation, so you do not necessarily have to move out of your home; therefore, spousal and child support might not be triggered. (But really awkward living arrangements will be.)

Support rights change if someone files for divorce.

Once a divorce gets filed, a party can ask for support even if everyone is still in the same house. Heck, you may have to pay support even if the other side doesn’t need it (i.e. you can get support you don’t even need during the period of separation).  This support for a spouse that comes into play after a divorce is filed but before it is finalized is called alimony pendente lite.

The previously discussed two year separation period can be used for a party to obtain support during separation, and they might not be entitled to it after a divorce (or even during separation).   The support you can receive while you are separated or while a divorce is pending is calculated differently than alimony, the type of support you can receive after divorce.  A party may be able to use the two year period of separation to collect these funds, even if they would be capable of self-support after the divorce and not an alimony candidate.   Additionally, while a party may have had an entitlement issue barring them from receiving spousal support, this doesn’t apply to alimony pendente lite.

So what is an entitlement issue?

This does not refer to someone thinking they are entitled to get everything in this world (though that type of thinking might be a reason to separate). If you haven’t been a faithful spouse, if you abandon or abused your family, or if you aren’t separating for the right reasons, you may be barred from receiving spousal support.     If you physically separate and there is no divorce, a party may not be entitled to the support they need if they don’t have clean hands. If you leave for the wrong reasons, you may be leaving behind your support claim as well.

Separation will also trigger custody issues.

Once you have separated, you can file for custody.  The court can even fashion an order while the two of you are still living under the same house but it will not go into effect until you are living in separate homes.  Whether you are separated in the home or out of the home will play a major role on how often you can see your children.  Continuing to reside in the home likely means seeing your child every day, which is almost guaranteed to be at least twice as much as you will see your children if you move out. 

However, continuing to live with your significant other post-separation is not for everybody. It can present a host of problems like fights about expenses, potential PFA exposure, etc.

If you leave are you really giving up your house?

Most often, yes.  Whether or not someone physically leaves the marital residence can affect equitable distribution in that in most cases the party who continues to reside in the home during separation and pendency of the litigation tends to be the party who receives the home at the time of equitable distribution. 

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