When can rent be charged to a Spouse living in the Marital Home Alone?

Spouses that have been displaced from their marital home during divorce proceedings may find themselves put in the position of paying for a home they have no ability to enjoy.  This commonplace situation has led to a general rule in Pennsylvania Courts that a dispossessed party can claim a credit for the fair rental value of marital property which is jointly held against the spouse in possession at the time of equitable distribution.  See Middleton v. Middleton.  Effectively, they can charge the spouse enjoying the marital home rent for the time that spouse spends in exclusive possession of the property.  However, this general rule is firmly within the discretion of the court to award, and is subject to further restrictions in order to adjust to the specific circumstances of the parties.

Factors affecting Rental Credit Awards:

To the extent  a rental credit may be awarded, it is limited by the amount in which the dispossessed spouse had a personal or financial interest in the property.  In Lee v. Lee, this caveat allowed a Wife who used premarital funds to buy and eventually re-finance the marital home to undermine her Husband’s interest in the home, and therefore whether the amount of rental credit due, if any.

Another central factor in determining the amount of credit is the period of time the spouse was dispossessed and the other spouse was in possession (actual or constructive), of the property.

Additionally, the credit is subject to an allocation for any expenditures made by the possessing spouse in order to maintain the property on behalf of both spouses. This includes repairs or any contributions towards mortgage and tax obligations for the home.

Another crucial factor requires that the party have an actual right to be physically present in the home. Regardless of legal title, if one party has been excluded from the home pursuant to a PFA Order, the court ruled in Lee that they are not entitled to a rental credit for the time the Order has excluded them, regardless of whether or not they were already dispossessed prior to the issuance of the Order.

Again, this is a circumstance-specific analysis, and one party’s superior financial obligations will not necessarily support a rental credit award.  In Schneeman v. Schneeman, the court denied a credit notwithstanding that the dispossessed spouse paid the mortgage, insurance, and taxes.  This is because the possessive spouse received a deviated amount of spousal support during this period, which the court considered an indirect contribution to the expenses.  In Lee, the court viewed the fact that the Wife initially urged the Husband to vacate the premises sooner rather than later weighed in favor of granting the husband a rental credit.

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What about other people living in the house with my spouse?

As a rule, no rental credit will be awarded when a minor child is living in the marital home. The general rental credit rule, however, has interesting effects in practice when the court considers the relevance of other solvent adults- typically the parties’ adult children- living in the marital property.     Judge will look at the specific facts when considering whether a non-resident party is entitled to a credit for allowing the parties’ adult children to live in marital rental property.   The surrounding circumstances of the litigation must support a credit considering the relative economic positions of the parties, and courts may not be inclined to allow the credit absent a showing of need or extenuating circumstances. Continue reading

Is there something I can do to move my divorce along? 

This is a question asked frequently when a divorce is dragging on.  Divorces can be drawn out  because the parties are unable to reach agreement,  because of  prolonged litigation,  because one party refuses to “come to the table,”  or for numerous other reasons.   When this happens it can feel very unfair for either or both parties.  We have heard it described as “being held hostage in a dead marriage.”   If the animosity between the parents continues unabated for a long period of time  the prolonged process  also can have a detrimental impact on children.

The Pennsylvania Divorce Code  provides relief in such circumstances, allowing spouses to get divorced without final resolution of all property issues.  The procedure is called a “bifurcated divorce.”   The bifurcation process  allows parties to  get divorced, move on and re-marry if they wish, while the economic issues  of the marriage are pending.    Protections for the dependent spouse and minor children must be in place until the case is fully resolved.

Bifurcation is considered an unusual proceeding, and can be granted only upon Order of Court.  A judge makes the final determination to grant a bifurcation, and does not have to agree even if both parties want the divorce before they distribute all of their assets and liabilities.   Continue reading

The old saying goes that marriage is about love and divorce is about money.   No matter how wonderful your marriage is, it is a good idea to be knowledgeable about your assets and debts.  No matter how amicable you think your breakup may be,  don’t underestimate the importance of  protecting yourself and your future financial wellbeing. This is not as crude as it sounds.   The sooner you start seeing yourself as a  competent, strong,  and self-sufficient individual, the healthier you may feel  and, more likely than not, the smoother any divorce process may be.

So here are some quick tips…         

  1. Learn about your finances–   gather as much information as you can about your assets and debts. If you are the one who pays all the bills, does the investing,  and manages the money, this is easy. If you are not that person, then start learning…quickly!  It is not an excuse to say, “I don’t know …She  pays  all the bills.”    Gather  documents. Get photocopies of  3-5 years of the last filed tax returns;  all recent bank, investment, retirement and credit card statements. Keep these documents in a safe place and update them regularly.

Do we have to work together?                                  

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This is a good question asked by many.   The marital home usually is a significant part of your total marital estate. For most couples, Husband and Wife hold the mortgage and the deed to the marital jointly.     The issue of removing one party from the mortgage (and later the deed) for most clients arises when one spouse has moved out of the house, and the other spouse is living in the marital residence.   The resident spouse likely is responsible for paying the mortgage.   The no longer resident spouse now wishes to be removed from the mortgage and the responsibility for the payments because he/she no longer lives in the home. However, as long as both spouses maintain a financial interest in the equity in the home, responsibility for the mortgage cannot be relieved.    Thus, it is important to monitor payment of the mortgage to ensure that the responsible party is keeping up with payments.   If the mortgage falls behind, the non-resident spouse can reserve the option of taking over payments, and seeking reimbursement for those payments at the time of equitable distribution of the full marital estate.

Lenders require proof of property settlement before a re-finance

Until recently if one party to a marriage would not consent to a divorce in Pennsylvania  there was a mandatory  two year waiting period before the moving party could proceed with a divorce.   On October 4, 2016, Governor Wolf signed House Bill 380, which reduces the waiting period from two years to one.   The new law goes into effect this December 2016.

This law is a major victory for parents and children in Pennsylvania.     Divorce, as we have written here previously, is one of the most stressful times in the life of a family.   It  can be a time of  uncertainty,  anxiety, anger,  fear and depression.   Children may be confused and scared.   A prolonged  waiting period  between unhappy parents  can have serious detrimental effects upon spouses and the children who  may bear witness to fighting and experience instability.

The original legislative intent behind a  waiting period was for family reunification.   Our lawmakers felt that  a longer waiting period would encourage reconciliation.  They  respected keeping families together,  and did not want to be quick to endorse family break up.  In reality, their intention was not realized.

By the time one party makes the heart wrenching decision to consult an attorney and proceed with a divorce filing, the likelihood of a family reunification is almost nil.   Continue reading

Child support is determined by a formula in Pennsylvania.   This formula can be found in the Pennsylvania Child Support guidelines.    Support  generally is based upon  determinable factors, such as:  each party’s  income or earning capacity,  contributions to care,  payment for health insurance,  and the amount of overnights the child(ten) spend with a parent.   Other factors may also  affect the amount of child support.     What constitutes income is defined in the Pennsylvania Code at 23 Pa.C.S.A. §4302.    When the Pennsylvania legislature enacted guideline provisions to determine the amount that parents are responsible to pay to support their children,  it was with the intent to  create uniformity and reduce conflict around this issue.  Yet,  child support remains a hot button for many.  In part, this is because even with guidelines, there remain grey areas  about what income may be available for support,   thus affecting what one parent may owe the other.

Remarried Parent May Have More Income to Support Children 

For single parents sharing custody and support with a parent who has remarried, the burden may feel  unequal.   In certain circumstances looking into the lifestyle of the remarried parent, particularly what he/she pays for in the new marital residence, can support the basis for a request for higher child support.   In a recent opinion, the Pennsylvania Superior Court allowed  the single parent to receive an upward calculation to child support because Father  had greater ability to support his children than what  the guidelines would provide given his earning capacity.   The court found that all of Father’s income was available for support.  The guidelines  take into consideration living costs and expenses, and generally only use the after tax income of the child’s parents and not the income of step parents. However, the law does permit the court to include other household income.

In  the case of  J.P.D. v. W.E.D.. 114 A.3d 887 (Pa. Super. 2015),  the  parents initially disputed the earning capacity of Father.  Father’s expert testified that his earning capacity was $45,725. and Mother’s expert testified that Father’s earning capacity was $70,833.   The Court credited Father’s expert on earning capacity,  but gave an upward deviation  to Mother that was greater than 100% of actual child support guideline amount, based upon testimony at the trial  that Father’s new wife paid all the  household bills and expenses.

Father’s new wife had an annual income of approximately $1,000,000.    Father did not pay for any of his own expenses, including mortgages, car payments, utilities or entertainment.   The re-married father’s  new wife had full control over household expenses and provided for all of father’s needs. Father and his new wife owned the house in which they lived, a weekend getaway house, and another property to be developed. Father leased  a Cadillac for $940 a month and traveled and vacationed frequently. The Court found that since  Father’s new wife provided for  all of Father’s needs, all of his income was available for child support  for his two children from the previous marriage.   As a result, his child support order was for twice the amount ordinarily calculated under the guidelines. Continue reading

The phenomena of divorce over the age of 50, that we have noted before,  does not appear to be slowing . With people living longer and more people looking for fulfillment , love and excitement throughout their lives and into the senior years, and with the increasing “empty –nest” syndrome, the gray divorce trend continues.

If you are contemplating or going through a later in life divorce, there are unique factors that you may confront, and that should be discussed with your attorney and other professional advisors.   We outline some of those here below:

Gather a Team of Trusted Professional Advisors and Seek Their Support and Advice

For many going through what some call a “gray divorce” or “silver separation” this may be a second divorce.   Thus, individuals may be inclined to remember the first experience and use that as a guidepost—even returning to the same attorney. That may not always be wise.   The issues that you confronted in your thirties or forties were quite different from those now facing you. Later in life you may be looking toward retirement, or  already be in active retirement.   You and your spouse have accumulated different and usually greater assets; you may have second families; you  may have different medical issues (either now or coming up); and you may have different needs for support and alimony.     There are different implications for taxes, wealth preservation and transfer.     In addition to needing the advice of an attorney experienced in elder divorce, you may need the services of  an accountant/tax advisor,  an estate planner and a financial advisor.   Your attorney can take the lead in helping put this team together, or you may have professionals you have worked with before.  However.  if you and your spouse shared advisors, now  there may be a conflict for one of you to use any of these professionals, or you may just wish  to hire someone neutral.

Alimony and Spousal Support

Depending upon the assets that are to be divided, and numerous other factors,  alimony may or may not be awarded in your case,  but certainly it is something that must be considered.   The laws of alimony differ in all jurisdictions.   In most states the notion of alimony for life is an antiquated concept.   Even in situations where the dependent spouse has little ability to return to work, or “catch up” financially, it is highly unlikely that she/he will receive a monthly payment for life.   This does not mean, however, that there is no entitlement to alimony,  or for the greater earner, the need to pay.   Understanding rules surrounding the right to alimony, and how to structure the amount and duration of alimony is critical.

Maintaining Good Health Insurance

Having health insurance is essential as one ages and now a legal requirement for all. Continue reading

The United States Supreme Courts’ landmark decision in Obergefell v. Hodges, recognizing same sex couples’ right to marry is only the beginning of the journey through the world of Family Law for same sex couples and their families. Depending on the state and the domestic relations laws of the jurisdiction, adoption, assisted reproductive technology, custody among other issues remain to be decided.    Just recently, the Supreme Court  issued a stay blocking the Alabama Supreme Court from implementing a ruling which refused to recognize a second parent adoption, completed in Georgia, by a lesbian mother of the three children she shares with her ex-partner.

V.L and E.L. were in a long-term same-sex relationship in which they planned and raised three children together, using donor insemination. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live. On September 18, 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgments from other states.  Under the United States Constitution’s Full Faith and Credit Clause, states are required to respect court judgments, including adoption orders, issued by courts in other states. Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.

In Pennsylvania, any individual can become an adopting parent. The court process used by the unmarried heterosexual, gay, lesbian, bi-sexual, or trans-gendered partner who is not the biological parent to adopt their partner’s minor child is called a Second Parent Adoption. This is different from the adoption of a minor child by their stepparent , which is called a Step Parent Adoption. Continue reading

cell-phone-01-1238771or but he said it and I have it on recorded my cell phone

With the ubiquitous use of smartphones, tablets, and other devices, the ability for the average person to secretly record conversations, take video, read text messages, and emails of other persons is widespread. The desire to take advantage of such technology is especially tempting when one believes he/she may obtain evidence that will give advantage in a divorce or a contested custody fight. However, Pennsylvania, has one of the most restrictive Wiretap and Electronic Surveillance* laws in the nation, and engaging in such activity can have wide ranging consequences.

The underlying question that comes up such situations is whether the activity infringes upon a right of a privacy. The test is two pronged: Whether the person whose communication sought to be used has (or had ) a reasonable expectation of privacy in the place or thing searched, and whether that expectation of privacy is one that society recognizes as reasonable.

Continue reading

As a result of the Jerry Sandusky /Penn State child abuse scandal on July 1, 2015, a new law, Persons Required to Report Suspected Child Abuse, 23 Pa.C.S.A.§ 6311, went into effect in Pennsylvania. Its’ impact is widespread. Parent volunteers in schools and others who come into close contact with children now may be required to obtain child abuse clearances before school districts or other organizations permit contact with students. Clearances must be obtained from the state police, and if the volunteer is not a Pennsylvania resident for 10 years he/she must be cleared by the FBI. For many parents volunteering in their children’s schools, chaperoning trips or coaching little league and soccer is a rite of passage. Since the law is relatively new, it has taken many by surprise. Some are annoyed by the bureaucratic paperwork requirements, quite a few are confused, and others simply are reducing their community involvement. Some background perhaps puts the motivation and need for this change in perspective.

Enhanced mandatory child abuse reporting harkens back to the spring of 2008, when the mother of a 15 year old high school freshman reported to the principal that her son had been sexually assaulted. The perpetrator was a prominent retired football coach and local philanthropist whom the student met through a charity organized by the coach to help children from disadvantaged families. The school principal, mandated by state law to report child abuse allegations, referred the student to the county Children and Youth Services department. The matter was investigated by a young social worker unfamiliar with renowned Penn State football coach Jerry Sandusky. She reported the results of her interview with the student to the Pennsylvania State Police. Ultimately the matter was referred to the Attorney General’s office, which obtained a grand jury indictment of the coach.

In 2011, Sandusky was arrested and charged with 40 criminal counts involving at least 7 victims over many years. In 2012, Sandusky was convicted of child sex abuse and is serving a 30 to 60 year sentence. In the process, storied football Coach Joe Paterno’s reputation and legacy were tarnished and Penn State University officials still face trial on perjury charges stemming from their failure to report suspected abuse to authorities.