New Year, New Resolution (Methods): Collaborative Divorce

I find the beginning of a new year is a good time to remind people of the some of the new alternative to divorce and custody litigation, as well as other, more traditional means of dispute resolution.

When someone realizes that they are facing a divorce or custody dispute, they often face a moment of terror. Not just because there are now major questions looming as to how they will divide their assets or see their children, but because of the images it conjures up. Many immediately think of the tall, dark, imposing wooden panels of the courtroom walls; the stern, gavel-banging judge deciding their fate; the watchful eye of the gallery staring down the parties as their lawyers shout objections and witnesses burst into tears.

Fortunately, most of these images come more from a poorly written episodes of “Law & Order” than from reality. Even if a divorce or child custody disputes do proceeds towards litigation, typically the family court does not involve any of these sensationalized components. It’s more likely to involve modern facilities, a lack of gallery, limited objections and, frankly, I’ve never seen a judge bang a gavel once. There are, however, plenty of tears.

Nonetheless, the idea of something as personal as a separation from your spouse, or the custody of your children, proceeding in court can (and to some extent probably should) be a little terrifying.

In essence, in the traditional litigation process, a party appears in court, where they will sit quietly while someone they barely know (their lawyer) argues the facts and circumstances of their life to a person who essentially does not know them at all (the judge), who ultimately decides how they live the rest of their life—both financially and with regard to their children.

Many of the decisions in family court will be made without the parties even being present, and when they are, much like traditionally good children, they are preferred to be seen and not heard. All of this isolation from the decision making process can be quite terrifying for parties. In some ways it is even more terrifying than the specter of the dark wood panels and booming echoes of the stern Judge’s words off of the walls. It is for this reason, over the years, many parties have sought to find an alternative means of dispute resolution to assist them with their divorce and child custody matters.

One of the newer movements in alternative resolution in family law is the use of Collaborative Law techniques.

Collaborative divorce has been cited in several studies as offering parties an alternative to traditional litigation which is more confidential, faster, and potentially less expensive than the traditional path. More important to the parties themselves, I believe, is the fact that they are active participants in the collaborative divorce process.

By design, the collaborative divorce process focuses on the parties’ goals and interests, and their ability to work with one another, not just to finalize an initial agreement but also in the long term. Often the parties will have many years of co-parenting ahead of them, and a collaborative divorce can help them to communicate better, allowing them to address minor issues which may arise over the years without the need to lawyer up and run to court.

So What is Collaborative Divorce? Visit my website or keep an eye out for my next post to learn more.

For more information about collaborative law, or other means of dispute resolution, please feel free to contact me at 412-261-9900 to schedule a consultation. You may also contact me through my website at www.uncouplingpittsburgh.com.

Please note that commenting on this blog or otherwise electronically corresponding with Attorney Myers does not create an attorney/client relationship.

New Year, New Resolution (Methods):

How Collaborative Divorce is Changing Divorce and Child Custody

When someone realizes that they are facing a divorce or custody dispute, they often face a moment of terror. Not just because there are now major questions looming as to how they will divide their assets or see their children, but because of the images it conjures up. Many immediately think of the tall, dark, imposing wooden panels of the courtroom walls; the stern, gavel-banging judge deciding their fate; the watchful eye of the gallery staring down the parties as their lawyers shout objections and witnesses burst into tears.

Fortunately, most of these images come more from a poorly written episodes of “Law & Order” than from reality. Even if a divorce or child custody disputes do proceeds towards litigation, typically the family court does not involve any of these sensationalized components. It’s more likely to involve modern facilities, a lack of gallery, limited objections and, frankly, I’ve never seen a judge bang a gavel once. There are, however, plenty of tears.

Nonetheless, the idea of something as personal as a separation from your spouse, or the custody of your children, proceeding in court can (and to some extent probably should) be a little terrifying.

In essence, in the traditional litigation process, a party appears in court, where they will sit quietly while someone they barely know (their lawyer) argues the facts and circumstances of their life to a person who essentially does not know them at all (the judge), who ultimately decides how they live the rest of their life—both financially and with regard to their children.
Many of the decisions in family court will be made without the parties even being present, and when they are, much like traditionally good children, they are preferred to be seen and not heard. All of this isolation from the decision making process can be quite terrifying for parties. In some ways it is even more terrifying than the specter of the dark wood panels and booming echoes of the stern Judge’s words off of the walls. It is for this reason, over the years, many parties have sought to find an alternative means of dispute resolution to assist them with their divorce and child custody matters.

One of the newer movements in alternative resolution in family law is the use of Collaborative Law techniques.

Collaborative divorce has been cited in several studies as offering parties an alternative to traditional litigation which is more confidential, faster, and potentially less expensive than the traditional path. More important to the parties themselves, I believe, is the fact that they are active participants in the collaborative divorce process.

By design, the collaborative divorce process focuses on the parties’ goals and interests, and their ability to work with one another, not just to finalize an initial agreement but also in the long term. Often the parties will have many years of co-parenting ahead of them, and a collaborative divorce can help them to communicate better, allowing them to address minor issues which may arise over the years without the need to lawyer up and run to court.

So What is Collaborative Divorce? Visit my website or keep an eye out for my next post to learn more.

For more information about collaborative law, or other means of dispute resolution, please feel free to contact me at 412-261-9900 to schedule a consultation. You may also contact me through my website at www.uncouplingpittsburgh.com.

Please note that commenting on this blog or otherwise electronically corresponding with Attorney Myers does not create an attorney/client relationship.

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. 

www.uncouplingpittsburgh.com