Family Law – Pennsylvania Focus

Paternity in Pennsylvania
If you hold yourself out to be the father without objection or demand of proof, then you are the father
Even if DNA later proves otherwise, the state holds you to your directly expressed, or implied expressed, intent
If a mother allows a man to act as the father, she can not later deny his paternity (even with conclusive DNA evidence)
The Right to Marriage
Supreme Court has held that marriage is a fundamental right
However, in certain circumstances, the state has a right to step in and tell you what you can or cannot do in a marriage
Marriage (Pennsylvania)
“One man and one woman”
Whereas alimony terminates on death, REMARRIAGE, or COHABITATION in an intimate relationship; in PA, cohabitation in an intimate relationship with a member of the same sex will NOT terminate alimony (but in other states, remarriage or cohabitation with same sex can terminate alimony)
Common Law Marriage (Pennsylvania)
Ended in 2005; however, there are rights for cohabitators that can be established and litigated in civil court (but not in family court)
Same-Sex Parents (Pennsylvania)
PA does not recognize two same-sex parents in that specific context
However, PA will recognize one biological parent plus the “partner” as “in loco parentis” (based NOT on the fact that the couple are same sex partners, but on the PA principle that “holding yourself out to be a parent basically makes you the child’s parent in the eyes of the state”)
Maximum “parents” of a child
Maximum number of people that can be involved in parenting of a child (as “parents”) is FIVE: sperm donor, egg donor, birth mother, and social father and mother (who raise the child)
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Constitutional Protection of “Family” (Moore v. City of East Cleveland)
Supreme Court finds strong constitutional protection of “the sanctity of family” established in numerous U.S. Supreme Court decisions, which extends beyond an arbitrary limit drawn at just the nuculear family
Rational Basis Review
Right to Privacy
Griswold v. Connecticut (1965) – the constitution protects a right to privacy
Annulment (generally)
An annulled marriage never happened in the eyes of the law
No one pays, owes, etc.
Contraception and Equal Protection
Eisenstadt v. Barid (1972)
Unmarried people have the right to possess contraception on the same basis as married people
By implication, unmarried couples have a right to engage in potentially nonprocreative intercourse (but the case did not go so far as to protect a right of unmarried people to engage in ANY type of sexual intercourse)
Sodomy Laws
Lawrence v. Texas (2003)
Supreme Court struck doen sodomy law in Texas
By extension, the Supreme Court invalidated sodomy laws in 13 other states, makign same-sex sexual activity legal in every US state and territory
This case overturned Bowers v. Hardwick (1986) which upheld a Georgia statute and did not find a constitutional protection of sexual privacy
Legal Advice (Barrett v. Virginia State Bar)
Emails between huisband (lawyer) and wiffe regarding divorce and legal matters were not the husband giving the wife inappropriate legal advice, the emails were just marital communication and husband’s opinions
Void Marriage (not the same as voidABLE)
A marriage is void because of an impediment that can not be removed because the impediment violates a core marriage prohibitions such as bigamy, incest, or same sex)
Voidable Marriage (not the same as void)
A party to the marriage may void the marriage because of an impediment that may be removed or may, although not consistent with the original intent of the marriage, be determined not important
These impediments offend less stringent public policies like persons who marry too young, without proper mental or phsyical capacity, or under inducement of fraud
SSR
Self Sufficiency Range
If the Defendant is not at or above SSR, the court will not take support obligations
Around $800 per month in PA, based on pverty level figures, and adjusted every 3 years
Historical Requirements to Marriage
Mutual consent
Minimum age
Not already married
No close familial relationship with intended spouse
Procedurally, formal marriage required a licese and a relgious or civil cermeony; and an informal marriage (common law) was widely accepted and required only a mutual expression of intent along with entering a community reoputation as a married couple
Marriage and Race
Loving v. Virginia (1967)
Supreme Court ends all race-based restrictions on marriage in the United States
Zablocki v. Redhail
US Supreme Court in 1978
Recaps that, under numerous Supreme Court decisions, marriage has been held to be a fundamental right
Accordingly, any restrictions on marriage must be analyzed under strict scrutiny to determine if the restriction can survive constitutional review
In this case, the Wisconsin law failed strict scrutiny and was declared unconstitional
Same Sex Marriage (PA)
Currently, PA does not recognize same sex marriage, nor civil unions, nor domestic partnerships – though attempts have been made in recent years to both allow for suh unions, as well as to block such legislation with a constitutional amendment banning same sex marriage.
Current PA statute defines marriage “between a man and a woman”
PA is one of the minority of states not to have a constituional amendment banning same sex marriage
Same Sex Marriage (Mass.)
November 18, 2003 – Goodridge v. Department of Public Health
Mass. highest court is the first of any state hiughest courts to say that same sex couples have a right to marry
Mass. Supreme Judicial Court found that the state may not “deny the protections, benefits, and obligations conferred by Civil Marriage to two individuals of the same sex who wish to marry. The state does not have a rational basis for denying same sex couples marriage on the grounds of due process and equal protection.”
Same Sex Marriage (internationally)
By court decision or legislative action, same sex marriage is now legal in Canada, Belgium, Netherlands, Spain, and some US States
Polygamy
Reynolds v. US (1878)
Supreme Court hupheld criminalization of polygamy and said it does not punish religious conduct in violation of the first amendment
State v. Green (2004)
Utah state supreme court upheld the trial court’s conviction of Thomas Arthur Green (a mormon fundamentalist) of 4 counts of bigamy and one count of failure to pay child support
Incestuous Marriage
The right to participate in adult, consensual incest is NOT a protected fundamental liberty interest
States, in the excercise of their legislative function, may legitimately proscribe against acts which threaten public order and decncy, including prohibitions against interfamilial sexual relations
Void Marriage and Death
A void marriage can be annuled after the death of one of the parties (prevailing rule – In Re: Estate of Santolino)
Requirement of a Marriage License
Parties’ failure to obtain a marriage license does not render the marriage void (Persad v. Balram)
There is a strong presumtion favoring the validity of marriages
Common Law Marriage: historical requirments
Parties are competent
Parties assumed a marital relationship by mutual consent
Parties confirmed marriage through cohabitation and public reputation (In re: Estate of Hunsaker)
Fault Grounds for Divorce (PA)
1. Willfull and malicious deseration and absence for one year or more without reasonable cause
2. Adultery with the opposite sex
3. Cruel and barbarious treatment; encompasses physical cruelty
4. Bigamy
5. Conviction, sentencing and imprisonment for 2 years or more
6. Indignities resulting in intolerable conditions and burdensome life; encompasses mental cruelty
Fault-Based Divorce in PA: innocent and injured
Does not mean completely without your own fault; just means without as much fault as your spouse
Strict Fault Based System
Divorce is available onlt to an innocent party victimized by the other spouse’s serious misconduict
Burden of proof is on the innocent party
Fault’s Impact on Property Distribution
Fault is not a factor the court will consider in PA, when distributing property
But in some states, fault is a factor for determining the property settlement agreement
Note: Covered later – PA does consider fault when awarding alimony
Cruelty
The cruelty which entitles the injured party to a divorce consists of that sort of conduct which endangers the life or health of the compaintant and renders cohabitation unsafe
Cruelty as cause for divorce includes any conduct on the part of the spouse which is calculated to seriously impair the health or permenantly destroy the happiness of the other
Mental Cruelty
Requires a showing of “habitual, continuious, permenant and plain manifestation of settled hate, alienation, and estrangement on the aprt of one spouse, sufficient to render the condition of the other intolerable”
Adultery
All forms of sexual contact (not limited to intercourse) between persons of any gender (must be opposite sex in PA) generally qualifies as adultery justifying a claim for fault-based divorce
Adulter (Spence v. Spence)
Assuming you can not prove actual adultery through direct evidence, in order to obtain a divorce based on adultery, one must prove by clear and convincing circumstantial evidence that there was both an adulterous inclination AND a reasonable opportunity to fulfill that inclination because such circumstantial evidence mais enough if it leads the trier of fact to a guilty conclusion
Burden of proof is on the accuser
Habitual, Cruel, and Inhumane Treatment
Course of conduct on the part of the offending spouse which was so unkind, unfeeling, or brutal as to endanger or put one in reasonable apprehension of danger to life, limb, or health; and further that such course of conduct must be habitual (done so often or continued so long that it may be reasonably said a permenant condition)
Habitual Cruel and Inhumane Treatment: below the threshold
Denial of divorce based upon these grounds may result “in rendering the wife unhappy and her marital bond irksome, but for that alone the law does not sanction divorce.” (Spence Case)
Fault Based Divorce: Bars and Defenses (generally)
Recrimination (of setting faults by both)
Provocation (reasonably provoked by actions of the other spouse)
Connivance (one party lures the other into creating fault grounds)
Condonation (you already forgave)
Collusion (fabricated evidence together to create fault)
Consent
Fault Based Divorce: Defenses (PA)
General rule: Common law defenses apply; except no defense if consent is mutual for divorce or if the court is pursuaded of an “irretrivabke breakdown” (no fault)
Fault Based Divorce: Adultery (PA)
Defense and perpetual bar against action if:
a. Plaintiff is also guilty of adultery (like conduct)
b. Plaintiff had sex with Defendant after obtaining knowledge of adultery
c. Plaintiff permitted Defendant to prostitute self and/or took money for it (pimp)
d. Plaintiff exposed Defendant to lewd company that led to adultery
No-Fault Divorce: generally
No victimization of one spouse by the other
Look only at marital breakdown
No need to prove fault
No-Fault Divorce: requirements
Most jurisdictions require:
(1) a finding that the marriage is “irretrevably broken;” and
(2) a waiting period of “living seperate and apart” for a specific statuatory length of time (2 years in PA) before divorce can be granted (therefore divorce may be faster under the fault-system)
“Irretrievably Broken”
Either spouse, or both, are unable or unwilling to cohabitate, and there are no prospects for reconcilliation
Fault v. No-Fault: Pennsylvania
Parties seeking a divorce in PA may elect to proceed on fault or no-fault grounds
Dissolution of Marriage in Pennsylvania
Three ways to dissolve a marriage in PA are anullment, fault divorce, or no fault divorce
“Living Separate and Apart”
Most states, including PA, have a statuatory waiting period in no-fault divorce
PA mandates 2 years, except where both parties consent
Does not require living in seperate houses; only seperate lives
“Physical seperation coupled with at least one party’s intention to live apart permenantly, with such intention shown to have been present at the beginning of the seperation period”
Living Seperate and Apart: Reconcilliation
Reconcilliation and resumption of cohabitation can result in the clock on the seperation priod being reset for purposes of a later divorce
Annulment
Declaration recognizing that the marriage attempted by the parties never came into existence at all because of a fatal impediment at the time of formation
Marriage was void or voidable from the start due to a fatal defect dating back to the marriage’s inception
Annulment: potential consequences
Since a legal impediment rendered the marriage defective from the very beginning, it clears the way for marriage to another; however, it could also result in harsh consequences – specifically, there is no basis to afford either party economic or social protections the come with legal marriage
Putative Spouse Doctrine
Theory which provides a party who mistakenly, although reasonably, believes they are married, with the legal benefits of marriage
Void Marriage: grounds in PA
Bigamy (already married)
Close relatives
Mental incapacity
Both parties below age of 18
Voidable Marriage: grounds in PA
Either party was under 16
Either party was intoxicated + annulment petition is filed within 60 days
Impotency
Fraud, duress, coercion, or force were used to secure the marriage
Legal Seperation
Limited divorce, as an alternative to divorce
Parties formalize marital property and support rights where a married couple intends to remain married wile living seperate and apart
Decree of legal seperation does not – and in most states cannot divide legal ownership of marital property
Property Regimes (during marriage)
Two Property Regimes during marriage:
1. Title Theory – Pennsylvania – the spouse with title has ownership – in all states that apply title theory, it is limited in application to the life of the marriage and equitable distribution is applied at divorce
2. Community Property – minority, only 9 states – everything acquired during the marriage is owned 50/50 during the marriage- must consult spouse on property decisions during the marriage – some community property application at divorce with some states requiring automatic 50/50
Community Property: Exceptions
1. Property acquired by one party before the mariage
2. Property acquired during the marriage by one party through gift, bequest, or devise
Property Regimes (at dissolution)
1. Equitable Distribution – Pennsylvania
2. Community Property
Both lead to virtually indistinguishable results
Requires the court determine “fair, just, and equitable” distrbution of martiale property, but not seperate property
Thus, the first steo for the Court is determining what is marital and what is seperate
Division of Marital Property: Steps
1. Identify and characterize each asset as marital or seperate
2. Value all marital assets
3. Distribute all divisible assets equitably or equally or, in the alternative, order monetary award as an adjustment to the parties’ equities
Transmutation
By their actions, parties modify the status of the property they own from seperate to marital
Comingled Funds
When a spouse’s seperate property is mixed with either the other’s seperate property or mixed with marital property then, at dissolution:
(a) when applying equitable property, the comingled funds are marital property
(b) when applying Community Property, the rebuttable presumption is that the comingled funds are mrital property, but a proper paper trail can rebut the presumption
Equitable Distribution: In Pennsylvania
Equitable, fair, and just is at the sole discretion of te judge
Seperate property typically avoids equitable distribution; however, an increase in value is marital property
Will also include equitable distribution of “marital debts” that were necessities of the family
Equitable Distribution in PA: Factors
Length of marriage
Prior marriages
Age, health, station, income, skills, employability, estate, liabilities, and needs
Contributions to education, training, and increased earnings power
Opportunities for future acquisition of assets and income
Medical, retirement, and insurane benefits
Value of property set apart from E.D.
Contributions to increase or decrease the value of amrital property (including as a homemaker)
Standard of living while married
Economic circumstances of each when division is effective
Tax ramifications
Liquidation expenses
Custodian as minor dependent children
Martial asset v. Seperate Asset v. Marital Property
Item may be acquired during marriage but only in one spouses name, and exists as a seperate asset but is not seperate property
Acquired during the marriage is marital property
Some assets may have a marital and non-marital component, and the non-marital component is seperated and not subject to E.D.
Overuling trial judge’s Equitable Distribution
Trial judge has broad discretion in making division of property in domsectic cases, and its discretion will be upheld absent clear evidence of abuse of discretion
Professional Licenses: Pennsylvania
In PA, professional licenses are not to be considered in E.D. of property
Equitable Distribution: Pension and Retirement Funds
ERISA permits a Qualified Domestic Relations Order (QDRO) to equitably distribute pension and retirement funds
QDRO must specify how taces are to be handled
Always a good idea to have the pension adminstrator take out the taxes prior to distribution to your client/the spouse
Equitable Distribution: SSD/SSI
Cannot be assigned
But children can get derivative support benefits for SSD
Fault in E.D. of property
Fault and marital misconduct are not a factor considered by the Court/Judge in determining E.D. of marital property in PA
The value of marital property is the value, regardless of the reasons for the split
Fault is also not a factor in child support, as the child deserves what the child deserves
Law of Dissipation
Dissipation of marital assets may be recouped depending on timing and purpose
Transactions must have taken place at a time when the marriage had already broken down
Transaction must have been for a non-marital purpose, not within the normal contemplation of use of marital funds
All jurisdictions permit consideration of economic fault in division of marital assets
Alimony
Spousal support
Entitlement award (because you got married) or Earned award (because of what you did during the marriage)
Must prove you need it to survive
Fault CAN be a factor, resulting in bigger or smaller award
Typically concerns the ongoing payments after the marriage ends
Alimony: Gender Based Restriction Statutes
Aimony statute is unconstitutional if it makes different standards of paying or receiving alimony based on gender
Not rationally related to any legitimate state objective
Spousal Support: Timeline Chronology
Generally, alimony is classified according to duration and purpose
1. Prior to divorce being filed: SPOUSAL SUPPORT
2. Divorce filed, but still litigating: ALIMONY PENDENTE LITE
3. Divorce is final: ALIMONY
Alimony: Social Policy
The primary social policy behind alimony is generally to rehabilitate, if possible, the dependant spouse to economic self-sufficiency
Statutes if the state have rehabilitation as the main goal, but also allow numerous variations (depending on the state) for different types of alimony for different purposes
Alimony: Variations
1. Rehabilitative: “transitional” or “short term”
2. Reimbursement: because of enhancement to the other’s earning capacity
3. Bridge The Gap: “limited duration,” defined not by purpose or reason but simply by limited duration
4. Permenant/Indefinite/Periodic
5. Lump Sum: single payment not subject to modification
Alimony and Illness
Alimony can be allocated to provide not only the money to continue the accustomed standard of living, but also the cost of additional care based on the dependant spouse’s physical and mental health
However, the court will not provide alimony in anticipation of a future illness
Termination of Alimony: Cohabitation in PA
In PA, cohabitation with the opposite sex in an intimate relationship will terminate alimony
However, PA will not recognie cohabitation with the same-sex in an intimate relationship as grounds to terminate alimony
Other states do have gender-neutral alimony statutes
Enforcement of Alimony Awards
Bring lawsuit for enforcement
Creative means for assuring or securing payment (coming from the agreement, court order, or statute)
Attachment of wages
Incarceration
Military Enforcement of Alimony
Uniformed Services Former Spouses Protection Act allows courts to distribute a military servie member’s retirement pay to former spouses, under Defense Department enforcement authority if:
1. marriage was for at least 10 years
2. service was at least 10 years during the marriage
3. spouse does not get more than 50% of disposable retirement pay
4. No enforcement proceeding while on active duty (spouse must wait)
Modification/Termination of Alimony: Petitioner
Unless the alimony order specifically prevents modification, obligor or obligee spouse may normally petition the court for an increase or decrease in alimony due to an UNEXPECTED and SUBSTANTIAL change in circumstances
Alimony Modification: Factors Considered by the Court
Effect on Payer
Length of Marriage
Each party’s current health
Purpose of original alimony award
Whether changes are self-induced or based on factors beyond the control of payer or payee
Other relevant factors
“Non-modifiable” in the order means that, no matter what, it can not be changed later
EXAM QUESTION: Which is a reason to modify a modifiable alimony order?
A-Drop in stock market holdings
B-Quit your job
C-Unemployment Compensation
D-All of the Above
Correct answer is C – Unemployment Compensation, because it was involuntary
A is wrong because you did not need to invest in the market and when you voluntarily did, you knew it might go down in value
B is wrong because you voluntarily quit your job knowing it would reduce your compensation
D is wrong because A and B are not valid reasons
Alimony Termination: Cohabitation + Intimate Relationship
Having a sexual relatioship is generally a fundamental component of cohabitation alomony termination
Otherwise, courts would be discouraging self-help situations such as getting a roommate to reduce expenses, which the court does not desire to do
Finality in Alimony Termination
In the majority of jurisdictions, termination of alimony is final and irrevocable
You can not get it back
Alimony Taxation
Generally, alimony payments are deducted from the payor’s gross income such that payor does not pay tax on what is paid
Generally taxable to receiving spouse
However, the parties may change if both agree
Classifying it as alimony to be traditionally taxed to the receiver benefits a higher-income-payor by reducing taxable income
Congressional Criteria for Alimony
1. Paid under a divorce decree or seperation instrument such as court order for support
2. Cash or cash equivalent; property awards are never alimony
3. Must end on receiver’s death
4. Parties cannot file a joint tax return
5. Child support is not part of alimony
Child Support: PA General Guidelines
Statewide guildeline is based on the reasonable needs of the child or spouse seeking support, and the ability of the obligor to provide support
Primary emphasis on net incomes and earning capacities, with allowable deductions for unusual needs, extraordinary expenses, and other factors such as party’s assets
Reviewed at least every 4 years
Child Support: PA Process
Step 1: Deomestic Relations Officer oversees conference, takes all the information, enters it into a computer, and tells the parties what the state guideline amount is
Step 2: If either party disputes, that same day they go to a Hearing Officer who makes an official record of everything and mails the recomendation/decision
Step 3: If either party still disputes, they have 20 days from the date of receipt to appeal to an actual judge
If you disagree with the judge’s decision, you appeal to Superior Court
Child Support: Sought by Criminal Mother
Woman is entitled to sue the father for child support even if conception occured as a result of a criminal act, such as statuatry rape, committed by the mother
The state’s interest in ensuring that a minor child received child support outweighs its interest in potentially detering crimes against minors – the mother’s potential cuplability under criminal statutes is irrelevant to father’s child support obligation under civil law
Parental Child Support: Biology and Trickery
Parental child support is grounded in biology
Where a mother tricks a father into conceiving a child, such as lying about birth control, the tricked father must nonetheless pay child support
Support depends on the child’s needs and parent’s ability to pay – with no regard to bad faith or parental fault into the intial support award or later modifications
Beginning of Paternal Rights and Obligations
Father has no rights until the child is born; no voice in abortion, even though a successful birth has drastic impacts on the father via long term child support obligations
Father also has no responsibilities until the child is born
Child Support Retroactivity: Pennsylvania
PA will only permit retroactivity back to the date mother files the petition, not back to birth
Cannot seek collection (file for support) once the child is emancipated which, in PA, is at age 18 or when child graduates highschool whichever is later
Maximum Support Age
Varies state to state
In PA, age 18 or when the child graduates highschool; whichever is later
Maximum support age can never be different for boys and girls
Child Support and Emancipation
Emancipation prior to age typically ends the parent’s obligation for child support
Child Support: Step Parents
Some statutes (not PA) require step-parents to pay child support, but the obligation is usually more limited
Child Support: In Loco Parents, Adoptive Parents
If you acted as, held yourself out to be, and/or assumed the role of parents; then you are treated as a parent for obligation purposes
Applies to grandparents as legal guardians or custodians or in loco parentis
Child Support: Promissory Estoppel and Equitable Estoppel
A person who promises support, treats the child as their own, or discourages contatc between the child and adoptive parents may be estopped from refusing support obligation – includes grandparents
Child Support: College Education in PA
Support obligation ends at age 18 and does not include college education
PA says it is a violation of Equal Protection to require the child support onligation to include college, because intact familes would be treated differently than split families
You can agree to pay, but you thereby waive your statuatory right to stop paying at age 18
You can never waive/enforce a limitation on child’s right to get the minimum required by law
Child Support: Disabled Adult Children
In PA, these cases are analyzed on a case-by-case basis, and there is nothing prohibiting it from going on forever
Courts have found that “emancipation of a disabled person” is not only financial, but also an emotional determination and other factors
PA Guidelines Method
Income Shares Model (PA and 2/3 of states)
1. Combine both parents income (net in PA) as if household were intact (and in PA, add back all voluntary deductions leaving only taxes and others only as determined on a case by case basis)
2. If either parent is under SSR ($857 per month) can not be held liable to pay
3. Apply support amount to that income, reflecting what parents would spend on child in the in-tact household
4. Exclude/adjust for heath insurance, child care, extraordinary medical, shared physical custody, other dependants, imputed income, other child support, education, and visitation transportation
Income Shares Model: Scale for High Income
The percetage of income that must be paid decreases as parental income goes up
A straight calculation of income shares does not apply for parents with high income levels
Other State Guideline Methods for Child Support – Not Pennsylvania
Percentage of Obligor’s Income Model (13 states)
Melson Formula (Delaware, Hawaii, and Montana)
Child Support: Imputing Income
Court may impute income to a parent who voluntarily remains unemployed or underemployed
Courts decide whether obligor acts in good faith, or whether it is an effort to “shirk” obligations to the child
Once the court decides to impute, the decision turns on obligor’s earning capacity
Shirking
An employment decision to reduce or forgoe income that is both voluntary and unreasonable under the circumstances
Seek Work Orders
Before imputing income for unemployment, Courts sometimes issue “seek work orders” directing the obligor parent to search for employment to produce or add to income
Deviation from Child Support Guideline
Applicable in PA
By Congressional mandate, states apply a rebuttable presumption that the guideline amount is correct
Court may deviate, depart from, adjust, or vary the guideline amount, up or down, but only on a written or specific finding that guideline amount would be unjust or inappropriate in this specific case
Exception, not the rule
The deviating judge MUST explain his decision in writing
Child Support: Extensive Visitation
Extensive visitation may trigger a support reduction if the child is spending extensive time with the non-custodial parent
Child Support: Child’s Resources
Child’s financial resources may trigger adjustment, but it is not a solely determinative factor such that it will completely relieve parent(s) of obligations to financially support the child
Child Support: Deviation based on Parental Agreement
Legitimate incidents of parental aithority and control are entitled to serious consideration by the court
Agreement is always subject to court approval
Simple test: is it in child’s best interest
Child Support: Special Considerations for High Income Obligors
Pre or post marital agreements making chold support not modifiable are against public policy and not permitted or enforceable
If income exceeds guideline amounts, judge can extrapolate and just keep going, or stop at the top based on a “reasonable needs” assessment
Discretionary Spending of Child Support
Support is the right of the child, but it is paid to the custodial parent
This leads to discretionary spending of child support monies, which is a frequent source of tension
Non-Marital Children of Parents with High Incomes
Regardless of whether a child is born out of wedlock, or to parents whose marriage ended in divorce – every child is entitled to a level of support commensurate with the parent’s position
Modification of Child Support Orders
Child support orders define only the parent’s present obligation
The order remains in place until a parent seeks an up or down modification
PA: can only seek a modification for MATERIAL or SUBSTANTIAL change in circumstance (something that, should the original court have known, it would have affected the decision and the order made)
PA: Child Support Modification Letter
PA sends you a letter every 3 years telling you you are entitled to review of child support; but the review must be requested
Child Support Modification for Unemployment
Courts may grant downward modification of child support – at least temporarily – while the affected person seeks reemployment
Child Support: Misc. Potential Reasons for Adjustment
Lottery winnings
Personal injury recovery
Inkind payments (company cars, free housing, etc.)
Inheritance
Severance pay
Obligor’s health and healthcare needs
Child’s health
Incarceration
Child Support: Parent’s obligation to new family
States disagree about whether; and if so, how; a parent’s obligation to a new family may affect the support obligation to children of a previous marriage
In PA: all children are treated equally
Child Support Modification: Clean Hands Doctrine
Party seeking equity from the court must come with “clean hands”
May be invoked against a parent who, having failed to pay past-due child support, now seeks modification of future obligations
Child Support: Cost Of Living Adjustment (COLA)
Parties may agree to inclusion of COLA in an initial order
Courts are generally receptive to agreements which are designed to maintain the status quo over time and have any chance (no matter how slight) to reduce coming back to the court for future modification
Child Support: New Spouses Income
While income may be imputed in a child support action, a court will not directly consider an obligor parent’s new spouse’s income as a direct resource for child support of the obligor parent’s children from a previous marriage
EXCEPTION: The state guideline is based on the obligor parent having to cover normal and neccessary household expenses and, in the event a new spouse is shown to cover all those expenses such that the obligor is not required to pay them, the court may deviate from the guideline
Child Support Enforcement
Some force comes from “Personal Responsibility and Work Opportunity Act” of 1996
Estoablished Temporary Assistance to Needy Families (TANF) program
Places a time limit on welfare
National Child Support Enforcement including a national hiring database to attach wages of noncompliant parents
Allows state enforcement by way of driving and professional licenses including law in some states, BUT NOT LAW LICENSE IN PA
Attach all manners of winnings and income, freeze bank accounts, IRS Intercept of refund, and sell assets
TANF: Assignment of Right to Collect Child Support
Federal Statute requires mothers receiving TANF benefits to assign the right to collect child support to the state
Child Support Compliance: Civil Contempt Power
Courts may jail a parent for willful failure to pay child support in violation of a court order
Incarceration does not offend state constitutional provisions prohibiting imprisonment for debt because child support is not a debt at all, but a duty which biological or adoptive parents owe to their dependent children, and to society
Child Support: Federal Enforcement
It is a federal crime to not pay supprot of a child in another state, for longer than one year or more than $5,000
It is a federal crime to conduct interstate or foreign commere with the intent to evade child support obligations
Child Support: Priority Debt in Pennsylvania
In PA, child support is a priority debt
Kids come first
You must reduce your lifestyle to what you can afford after you pay for your children, as the court does not care about your bills, expenses, etc
Health and perscriptions are considered
Custody v. Visitation
Custody is where the child is spending life
Visitation is when a parent gets to see the child in the other parent’s home
Visitation is usually applicable when a parent has not been involved in the child’s life for a long period
Partial Custody
Physical custody some of the time, with the ability to take the child anywhere not dangerous or inappopriate
Shared Custody
Not neccessarily 50/50, though it can be
Primary Physical Custody
With whom the child lives the majority of the time
Usually also includes designation as “legally determining parent” in the event of disagreement over shared-legal-custody-decisions
Joint Physical Custody
Generally confers on both parents shared day-to-day decision making and responsibilities for the child, and the right to have the child divide time roughly equally between both homes
Legal Custody
Ability to make the major decisions – such as education, medical care, and religion – in the child’s life
Usually shared by the parents, but with the parent with Primary Physical Custody being the ultimate decider in the event of disagreement
Joint Legal Custody
Confers shared ability on both parents to decide issues related to the child’s upbringing
Custody: Private Agreement
Most parents reach custodial agreements without judicial intervention
Even still, courts must review and approve
Child Custody: Constitutional Considerations
Parent’s constitutional rights in child custody disputes are grounded in constitutional law giving parents the right and liberty interests in the acre, custody, and nurturing of the child
Involves two constitutional areas:
1. Due Process Clause
2. Gender Equality
Child Custody: Due Process Issues
Parent is presumed to be honoring the child’s best interest
Only when there is a powerful protection interest vested with the government do parent’s rights become secondary
Parent must be unfit or unavailable (deceased or incarcerated) to remove a child from an intact home
Never a concern between two fit and available natural parents as they both have the same rights
Child Custody: Gender Equality Issues
Started with historical preference of kids going with father (Pater Familias)
Then switched to preference to the mother, unless she is unfit (Tender Years Doctrine)
In modern times, Gender Equility (Tender Years is still alive but only one of numerous factors and not solely determinative)
Custody Involving Non-Parent
Natural parent always has preference
Can not use “best interests” analysis when it is Natural Parent v. Non-Parent
Custody: “Best Interest” Factors
No age when child decides for himself (ultimatly the child’s best interests – not his wishes – are what matters)
Status quo
Gender roles and careers
Domestic violence history
Sexual behavior
Sexual orientation
Home enviornment and health issues
Race
Siblings
De Facto Parents
Parent by estoppel
Best Interest Factors: Sexual Behavior
In order to establish that a parent’s immoral behavior warrants denial of custody, objecting parent must demonstrate a NEXUS between the behavior and harm to the child
Best Interest Factors: Sexual Orientation
Three analysis:
1. Nexus Test: sexual preference and harm to child
2. Per Se: should not get custody if gay, lesbian, bisexual, or transgender
3. Middle Road: not solely determinative but also not automatically OK if there is no nexus to harm
Best Interest Factors: Race
The Fourteenth Amendment does not permit the consideration of potential/perceived effects due to racial perjudice against mixed-race families in child custody matters
Best Interest Factros: De Facto Parents
Four elements to “parent-like” relationship:
1. Biological or adoptive parents consented and fostered the relationship
2. Lived with the child in household
3. Assumed obligations of parenthood by taking significant responsibilities for care, education, and development including contributions to the child’s support (not neccessarily financial) with not exception od repayment or compensation
4. Has been in a parental role for a length of time sufficient to establish, with the child, a bonded dependent relationship that is parental in nature
Best Interest Factors: De Facto Parents (Pennsylvania)
PA Supreme Court has held that a DeFacto Parent relationship is created “where the child has established strong psycholgical bonds” with a non-biological parent figure who “has lived with the child, provided care, nurture, and affection and assuming, in the child’s eyes, a stature like that of a parent”
Similiar to common law In Loco Parentis
Renders formalities of legal adoption unneccessary
Psychological Evaluation in Child Custody
Only true barometer that has any chance of being objective
Time element: quickest way to sort details without havign to air everything in court
Not solely determinative
Totem Pole of Custody
1. Primary Physical Custody (most time and legal)
2. Shared Physical / Shared Legal
3. Partial Custody / Shared Custody (take child but minority of the time)
4. Visitation – you go to place designated by other parent (a form of supervised custody with the other parent or supervisor)
5. Supervised Custody/Visitation (where flight risk or danger to child is a concern)
Relocation: PA definition
A change in residency of the child which significantly impairs the ability of the non-relocating parent to excercise custody rights
If you are going to try and move with the child to any area that will inconvenience the other parent
NO RELOCATION CAN OCCUR UNLESS THERE IS MUTUAL AGREEMENT OR COURT APPROVAL (you can no longer just move and ask for forgiveness later)
Illegal Relocation and Burden of Proof
Moving without agreement or Court approval is contempt of court
Burden of Proof is on the relocating party to show why the move is in the child’s best interest
Relocation: Factors
Child relationship with all parents, siblings, etc.
Child’s age, development, and needs of the child
Impact of relocation on child’s development
Possibility of suitable adjustments (summer, holidays, etc.)
Child’s preference
Are you moving to hurt, or put distance between child and, other parent?
Enhancement to relocator from relocation
Enhancement to child from relocation
Abuse and risk of har to the child
Any other “best interest” factors
Child Custody: Standing
Moving party must have the ability to bring the action
Standing in Primary Custody
Presumption favors natural parents, even over grandparents
Third party has no standing unless they acted in loco parentis for at least 12 months
EXCEPTION: Grandparents (not in loco parentis for 12 mos or greater) can bring complaint for full custody if 1 of 2 things:
1. Child is found by juvenile court to be “dependent” (parents are so bad that the juvenile court says they no longer have natural rights); or
2. Child is at risk due to abuse, neglect, drug or alcohol abuse
Standing in Partial Custody
Presumption favors natural parents
Grandparents have “extended position” in certain circumstances:
1. In loco parentis gradparents are not required to seek full custody…it also gives them preference in partial custody action
2. The child’s parent (the grandparent’s child) is dead
3. Parties have seperated for more than 6 months (“Grandparent’s Accelerated Position in Partial Custody Action of Non Intact Family)
Grandparent Custody Action: After Standing is Established
Court considers:
1. Status Quo: historical relationship between child and grandparents
2. Does contact with grandparents interfere with the parent-child relationship?
3. Is contact with grandparents in best interest of the child?
PA Statuatory Requirements for Grandparent Standing in Custody
Parents are divorced
One parent is deceased
Grandparent has been primary caregiver for more than 12 months (In Loco Parentis)
Child is endangered by being with parents
Same-Sex Partner Standing in Visitation
Must qualify as In Loco Parentis
No specific standing for same-sex partner / same-sex parent
Welfare and Paternity
If mother is on welfare, you must keep naming the potential fathers until paternity is established
Marriage and Divorce Agreements
Outcome of most divorces is controlled directly by some agreement of the parties
1. Agreement made before marriage (Premarital, Prenuptial, Antenuptial); or
2. Agreement made after marriage but prior to marital breakdown (Postmarital, Postnuptial, Midmarriage); or
3. When parties are seperating or contemplating divorce (Seperation Agreement); most common
Marriage and Divorce Agreements: Modern Law
Today, most states not only permit but also affirmatively encourage private settlement in divorce
Agreed terms on alimony and property distribution are now presumptively binding on the parties
Private bargaining over child support, custody, and visitation are subject to greater scrutiny
Jurisdictional Standard for Marriage/Divorce Agreements
Most jurisdictions have imposed special duties of disclosure and fair dealing, continuing to hold that the marital context requires some special limitations on freedom of contract
Marital Seperation Agreement
Contract of Physical Seperation
Two aspects: declares physical seperation and outlines settlement of the rights and obligations arising from the marriage relationship
Seperation Agreement and Reconcilliation
Agreement/contract is annulled, voided, or rescinded if parties reconcile and resume marital relations
However, resumption of marital relations does not neccessarily rescind the agreement regarding property rights and non-alimony support. These agreements then become Reconcilliation Agreements under which the character of the property changes in consideration for continuation of the marriage
Cohabitation Agreements
Unmarried parties may contract with each other to resolve issues of property rights, inheritance rights, and support (aka “Living Together Agreements”)
Follow general contract law principles and are litigated in Civil – not Family – court
Courts will always look closely to ascertain that the agreement has a lawful objective, and that sexual service does not constitute consideration
Marriage/Divorce Agreements: Pennsylvania
Agreements are granted and enforced with the same authority as court orders (unless stated otherwise in the agreement)
Provisions regarding child support, visitation, or custody subject to modification by the court upon a showing of changed circumstances
Unless stated otherwise, the court cannot modify property disposition, interests between the parties, alimony, counsel fees, or expenses
Premarital Agreements: Pennsylvania
Burden of Proof is on party claiming unenforceable
Setting aside the agreement requires clear and convincing evidence that:
1. execution was involuntary
2. prior to execution, there was (a) no fair reasonable disclosure of assets and liabilities, and (b) no waiver of such disclosure provided, and (c) no adequate knowledge or notice of undisclosed information
Generally, Pennsylvania takes no heightened measures to assure the validty of Prenups and, so long as there was no fraud, misrepresentation, or duress it is valid
Prenups: Statute of Frauds
Statute of Frauds requires prenups to be in writing and signed by the party against whom enforcement is beign sought
But some states soften the writing requirement by applying a doctrine of Partial Performance
Prenups: Consideration
In prenups – signed before marriage – the marriage itself is always sufficient consideration
Prenups: Unconscionable
Even ordinary contracts are unenforceable when the terms are unconscionable, but what of prenups?
Most jurisdictions review terms closely and give considerable deference to the agreement as executed
Valid Prenup Terms
Parties may seek to include a variety of terms
But parties may not waive or limit court’s authority in child support and court must always be able to ensure that custody and visitation are in the best interests of the child
Most jurisdictions allow waiver of spousal support, but may invalidate it if spouse will need welfare or state benefits
Non monatary terms are otherwise not enforced by the court (conduct within the marriage, tesyriction on right to seek divorce, child custody, child’s religion in the event of divorce, etc.)
Post Nuptial Agreement: Consideration
In post nuptial, marriage itself can NOT be consideration because the marriage has already occured when the agreement is later signed
Past consideration is no consideration
Seperation Agreements: Court Acceptance
Courts can accept a seperation agreement as valid, and eventually can set the agreement’s terms in some manner in a divorce decree
In some manner:
1. Approval/Ratification; or
2. Incorporation; or
3. Merger
and each manner have different consequences
Approval/Ratification of Seperation Agreement
The court endorses it as valid under state law and “reasonable”
However, the agreement is not part of the divorce decree/judgment and thus only enforceable under contract principles
Incorporation of Seperation Agreement
Permits the agreement to be part of the Divorce Decree/Judgment, while also remaining contractually binding
Merger of Seperation Agreement
Agreement becomes fully absorbed and a part of the judgment and may no longer be enforced as a seperate contract
A court may enforce a merged agreement, like any judgment, by contempt of court
Modifications of Seperation Agreements
Absent a provision barring modification, incorporated or merged agreements may be modified after entry of the judgment on the same grounds permitted for modification of any court order
Agreements not incorporated or merged into the decree can be modified by the parties in accordance with ordinary contract law
Limiting Provisions on Modification: Seperation Agreements
Nearly all jurisdictions recognize the validity of a limiting provision which bars or limits future modification – but never for terms related to custody, visitation, or child support
Voiding Seperation Agreements
Agreement regarding alimony and property are “presumptively binding” absent proof of fraud, duress, or unconcionability
Courts are generally not eager to rush in and find deals unconcionable as the court would rather tolerate hard bargains in absence of fraud or duress
EXAM QUESTION: A couple was married and, every year, dad took the 2 kids to Florida to visit dad’s parents for two weeks. Mom sometimes went. One year, mom does not go and dad files for custody in Florida and serves mom in the state she is in. Issues?
Under International Shoe, there are no sufficient minimum contacts with Florida. No one intends to remain in Florida.
Is Florida the home state for dad if he takes a leave of absence from work and takes a job in Florida for two weeks? No, as he did not wuit his job and has no expression of intent to remain in Florida.
Federal Courts: Domestic Relations
Domestic Relations Exception: A Federal Court will not excercise diversity of citizenship jurisdiction over actions involving divorce, alimony, property distribution, child custody, or visitation
BE CAREFUL: Other actions that INVOLVE family but are not in these categories are NOT exceptions
Divorce Jurisdiction
Before granting a divorce, the state court must have SUBJECT MATTER and PERSONAL jurisdiction
If both parties are domiciled in the same state, clearly the court can assert jurisdiction
Migratory Divorce
Divorce granted by one state (which has typically been labeled a “divorce mill”) to a spouse(s) who had only recently moved there from another state (usually a state which took a dim view of divorce)
Ex Parte Divorce
Any state has jurisdiction to grant a divorce when only one party is legally domiciled in that state, and all other states must recognize these divorces
Divorce is available based on the domiciled spouse’s domicile, regardless of whtehr a court has personal jurisdiction over the other spouse (but a court may award alimony or property distribution ONLY where it has personal jurisdiction over both)
General Appearence in OTHER than your home state
If you make a general appearence, or hire an attorney to make general appearence, in a foreign state to conteast the divorce, then that state automatically gets personal jurisdiction over you
Instead, make SPECIAL appearence to contest jurisdiction
Durational Residency Requirement
Durational residency requirments are constitutional
States require residency for a specified period of time before you may ask a court to issue a divorce decree
PA RULE: you must be a bona fide resident of PA for 6 months before you can file for divorce
Foreign Country Divorces
If a foreign divorce was granted for the same reason a state would grant a divorce, then the court should recognize the foreign divorce
EXCEPTION: Party in the foreign divorce proceeding was not afforded procedural due process
Divisible Divorce Doctrine
Divorce whereby the marriage itself is dissolved; however, the issues incident to divorce (alimony, child custody, and visitation) are reserved until a later proceeding (usually in a different state or states)
The court typically has subject matter jurisdiction and personal jurisdiction over one spouse, but lacks personal jurisdiction over the defendant spouse
The Ex Parte Divorce decree is given Full Faith and Credit only as to the dissolution of the marriage and no economic issues are involved such as alimony or support
Divisible Divorce Doctrine: Subsequent Proceeding
Where a foreign state does not have personal jurisdiction over both spouses, the personal proeprty rights of the parties may be litigated in another state seperate from a divorce decree issued in another jurisdiction
Child Custody Jurisdiction
Asks questions of:
When can an action be filed, and where can a decree be entered?
When must other states respect that decree?
What states may modify an original decree?
Child Custody: Residence Requirment for Initial Custody Filing
In PA, you must be domiciled in PA for 6 months before filing an initial custody complaint
NO RESIDENCY REQUIREMENT FOR CHILD SUPPORT
Three Types of Original Child Custody Jurisdiction (where an original custody complaint can be initially filed)
Originally established by Uniform Child Custody Jurisdiction Act (UCCJA)
1. Home State Jurisdiction
2. Significant Connection Jurisdiction
3. Emergency Jurisdiction
Child Custody: Home State Jurisdiction
Parental Kidniapping Prevention Act (PKPA) of 1980 elevated Home State jurisdiction to first and highest preference and allows other options only if no state qualifies as home state
State where child resided 6 months before the action is initiated
Dormant initial action (filed 6 months ago, then sat on it) does not qualify
Partial custody with a parent elsewhere does not destroy the 6 month duration, nor will it destory the state’s Continued Exclusive Jurisdiction)
Child Custody: Significant Connection Jurisdiction
Taking jurisdiction is in the best interest of the child, and at least one parent has a significant connection to the state
Child Custody: Emergency Jurisdiction
Child present in the state and abandoned, abused or in danger; OR
No other state has jurisdiction
Parental Kidnapping Prevention Act (PKPA) of 1980
1. Gives Home State Jurisdiction the first and highest preference
2. Applies to all interstate custody matters
3. Mandates full faith and credit to custody orders that comply with statute
4. Allows CEJ in home state so long as chold or one parent still lives there
Child Custody Jurisdiction: Consent
Consent from both parents trumps everything
UIFSA
Uniform Interstate Family Support Act
Child Custody: Modification Jurisdiction
The original state which issued the order maintains Continued Exclusive Jurisdiction and is the only state where the order can be modified; UNLESS neither parent nor the child live in the state any longer. In this case, modification jurisdiction is no longer appropriate and another state will be able to seek jurisdiction to modify the order
Child Custody: Seeking Modification Jurisdiction
A party seeking to acquire modification jurisdiction in a new state must first register the initial order in the new state. Then, the new state may only obtain modification jurisdiction if:
1. The state meets the criteria such that it would now have original jurisdiction to issue a support order if this were a new case; AND
2. The other original state has, in fact, lost CEJ
Intespousal Tort Immunity (PA)
Completely abolished in 1981
Parent-Child Tort Immunity: Insurance Cases
Immunity is not available in cases where insurance coverage provides protection and pays damages
Parent-Child Tort Immunity: Sexual Abuse
Immunity is not available because the family harmony has already been destroyed by the abuse, perhaps even moreso than the tort claim could ever destroy it
Spousal IIED
Prima Fascia case for IIED is the same for spouses, with no special standard:
1. Extreme and outrageous conduct
2. Intended to inflict severe emotional distreee or done with knowledge that there is a high probability that severe ED will occur
3. Severe ED did result
Spousal IIED: Morally Offensive Conduct
Mere morally offensive conduct and obnoxious conduct in the marital setting is not enough to sustain a cause of action for IIED, where the conduct must actually be extreme and outrageous
Family Court: Jury Trial
Typically not available
Heart Balm Torts
At common law, a group of tort causes of action protecting interests in family relations against intentional disruption from outsiders
In recent times, the tide has turned against these torts; and the few jurisdictions where they persist will construe then narrowly and limit remedies available
Heart Balm Tort Action v. Other Causes of Action
You can not specifically file HBT action; however, depending on the circumstances, you may have another action in civil (not family) court
For example, if you planned and paid for a wedding and the other party called it off, you do not have a HBT action but likely have a civil cause of action claim for damages
Engagement Ring
Can get it back, or its value
Exception: An engagement ring given on a holiday is presumed to have also been a gift and not entitled to seek return
Bakruptcy Reform Act
Categorizes all alimony, spousal support, property distribution, and child support under the umbrella title of “Domestic Support Obligations.”
None are dischargable in bakruptcy.
Agreement and Spousal Support: Agreement Language
If agreement does not include spousal support, but also does not address it, the Court can find it to include or not include spousal support
If an agreement intentionally waives and does not intend to include spousal support, write it that way: “Parties acknowledge there is no spousal support, it is waived, and this agreement shall never be construed as having not addressed the issue.”
Property Settlement Payments: Death
Property settlement payments do not terminate on death
If the agreement states that payments terminate on remarry or death, then the payments are spousal support, not property settlement
Property Settlement Agreements: Tax Benefits
May try to catergorize certain obligations as something else for tax benefits, but the court will endeavor to attempt to discern what the payments/debts really are.
i.e.) If an agreement does not address spousal support but contemplates property settlement payments that terminate on death or remarry, and the receiving spouse attempts to add on support at a later time claiming it was never addressed by the agreement, the court may find the property settlement payments to actually be support payments and not accept the reciving spouse’s argument