Articles Posted in Divorce

TO MOVE OR NOT TO MOVE …

One of the more frequent questions that come up in our practice is whether a party can or should move out of the marital home before or during a divorce proceeding. The answer, unfortunately, is not a simple yes or no. And often it comes up after someone already has moved out!

Reasons why one might want to leave a marital home before or during a divorce are: physical and/or emotional abuse; infidelity; new employment; the emotional need to get away, etc.   The are equally compelling reasons to stay in the home during divorce proceedings   and perhaps live separately under the same roof, such as the financial considerations –savings offered by not having two residences, convenience; parental obligations or concerns about parenting. Each situation is different.      It is wise not to be impulsive about the decision of whether to leave or stay.   Consultation with an attorney is best, to learn fully what your rights and responsibilities are.   At a minimum there are certain items, which must be considered,

 Custody, In Loco Parentis and Reproductive Assistive Technology

With more couples building families through reproductive assistive technology, custody questions  may become an issue  if the original family is no longer is intact, if the parents never married, and/or if the non-biological parent did not adopt the child.   More and more courts are being asked to determine custody in these cases.   There are steps that couples can take to help avoid or minimize this intervention.   The  facts and result in a recent Pennsylvania case are instructive.

In the  case of C. G. v. J.H.,  J.H. conceived a child by artificial insemination.    C.G. and J.H. were not married and Florida (where they resided)  did not recognize same sex marriage at that time.   J.H. was the biological mother.   The child, J.W.H. , was born in Florida in October 2006, while C.G. and J.H. were living together as a same-sex couple.   C.G. and J.H. continued to live together for about five more years.   The relationship, however,  began to wane and J.H. moved with the child to a separate residence in Florida and then moved to Pennsylvania in July 2012.

About three years later, in 2015, C.G. petitioned the Pennsylvania Court for shared legal and partial physical custody, alleging that she, C.G. “also acted (and acts) as a mother to the minor child …[and] the minor child was conceived by mutual consent of the parties with the intent that both parties would co-parent and act as mothers to the minor child.”    Since C.G, was not the biological parent,  J.H. alleged that she did not have  “standing” to bring the matter at all.    Because the parties were not married at the time of conception, and because C.G. did not adopt the child,   the trial court held extensive hearings looking into the roles of each party to determine whether there was sufficient status for C.G, to raise the claim for custody.   iStock-517851326-300x220

As might be expected, the testimony conflicted.   Just as in a traditional custody case, the parties presented extensive evidence including  who attended to the child’s “[p]hysical, [e]motional, and [s]ocial needs.”   Testimony including facts of  day-to-day life was considered by the judge, as were facts regarding  decision-making about the child’s medical and educational needs, child care, financial support and other items.
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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

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

Keep your eye on the full picture

it is essential to know what financial resources will be yours after divorce. When calculating your full financial picture be sure to consider social security benefits–your own or those of your ex-spouse. Yes, even if divorced, you may be entitled to claim social security retirement or disability benefits based upon the earnings of your ex. If you were the lower wage earner, you probably are entitled to claim on your former spouse’s earnings record. And, you also may have a right to collect a social security survivor benefit of your former spouse. The rules vary, but one essential key to the right to collect in both scenarios is that your marriage lasted ten (10) years or longer.

Social Security Retirement Benefit

Yes, it’s frightening to contemplate shaking up your comfortable life in your fortys, fifties or sixties, but it is happening with greater frequency these days. The US Census American Community Survey shows the rate of divorce among the 50- 60 year old population is increasing. href=”http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_1YR_S1201&prodType=tabler The reasons for this increase need further study, but perhaps as we live longer and healthier lives, we are demanding more fulfillment from our later years. The realization that a sour marriage is not the place for us to achieve this fulfillment may come with a sense of questioning, disappointment, sadness, embarrassment, dread, or even fear. It is important to acknowledge and work through those feelings. And, if the marriage cannot be saved, it is equally important to realize that there are a host of positive new feelings that will come with closure.

Middle age divorce presents its challenges as well as promises. Surely, there will be upheaval. There is the prospect moving or of living alone, something some people may never have done. You may have to leave the comfort of your established marital home, or the community in which you raised a family. There may be financial set-back as you divide assets. However, with these challenges also is opportunity. The community that you love may no longer suit your needs, you may have outgrown it, but without a catalyst you would not move. Divorce can provide just the motivation to branch out, perhaps move from the suburbs to the city. Or it may motivate you to downsize to a more manageable home, allowing you more time to spend on yourself.

Today, more and more people are living alone, and enjoying the independence and privacy it permits. The latest US Population Survey finds that in the 55-64 age group individuals living alone increased from 13 to 23 percent.–surpassing those age 75 and older. The changes discussed here do not mean isolation or losing the old friends, but rather an opportunity to branch out and find new friends –even lovers– who may enhance your life in all sorts of different ways.