Social Security Benefits when Divorced

When you get divorced in PA, social security is not considered as an asset in divorce. It may be considered as income for purposes of alimony but not as an asset.  If you were a spouse who did not work and did not contribute to Social Security or if you worked part-time and your benefit is not very much, you should inquire as to whether you are eligible for spousal benefits.  If your ex-spouse worked and contributed to Social Security, you may be eligible for Social Security.  In order to be eligible, you must be unmarried at the time you apply for benefits. Even if you are divorced in between marriages from someone else, you may still be eligible to collect on the first spouse if you meet the requirements.  You must be at least 62 years.  You must have been married to the spouse for at least ten years to collect.  If your spouse is not yet collecting, you can still collect as long as you have been divorced for at least two years.  If you wait until full retirement, you will receive half of what your ex-spouse’s full retirement benefit is.  Your collection of the half of their benefit does not reduce their full benefit.  They will still be eligible for their full retirement benefit.  Social security no longer sends statements out in the mail of your earning history but they are easily accessible online at www.ssa.gov and you should set up an account for yourself to view online.  To learn more about your rights if you are divorced visit: 

http://www.socialsecurity.gov/retire2/divspouse.htm.

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Date of Separation in a Divorce

When you get divorced in PA, the date of your separation is no later than the date that a divorce is filed. It can be earlier but the burden will upon the party seeking an earlier date to establish it with evidence should the other spouse contest it. The date of separation is an important date when it comes to determining what is an asset and what is a debt. Assets and debts accumulated up until the date are marital. This means if you file for divorce or separate you will want to know what the balances are on your debt at that time. It does not matter whose name the debt or asset is in. If your spouse has credit cards, even if you did not know about them during the marriage and they can produce statements showing a credit card balance on the date of separation, it gets included. If you think your retirement is your own, again you will be mistaken. Retirement assets up until the date of separation are marital assets even if they are only in one person’s name. There are exceptions on some assets that are passive such as a house where the value is determined as of the date of distribution. Much money and time is spent in a divorce figuring out what the assets and debts are and what the balances are. It is a good idea to keep records, when you marry, when you separate and each month after you separate. It will save much time and much money to stay organized.

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Putative Spouse Doctrine

The putative spouse doctrine provides an equitable remedy where one or both spouses believed in good faith they were married and subsequently discovered the marriage wasn’t valid. The spouse that is unaware of any impediment to the marriage is the putative spouse. The equitable remedy provided more or less mirrors the relief that would be available if the parties were divorcing from a valid marriage. The purpose of the doctrine is to protect those who have an honest belief that they are married from being denied the economic and/or status related benefits of marriage including potential property division and support.

The doctrine is recognized in many states across the country as long as the key elements are met. First, there must be a proper marriage ceremony. Second, one or both parties must have a good faith belief the marriage is valid. Good faith is defined as an honest and reasonable belief. If either spouse receives information concerning the validity of the marriage, they have a duty to investigate further.

Click here to read more on division of property.

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Affidavit of Consent

Under Section 3301(c) of the Divorce Code, one way to obtain a no-fault divorce is by mutual consent of the parties ninety (90) days after filing and service of the divorce complaint. This is often the quicker option for a no-fault divorce however it is contingent on both parties signing the consent. Case law provides that a party cannot be forced to consent. This is true even if the party previously entered an agreement indicating they would timely consent to the divorce. The court has stated “[a] person has an unqualified right to change his or her mind and refuse to consent to be divorced, at least, as here, where the consent, though signed, has not been delivered or filed.” Berman v. Berman, 33 Pa. D. & C.3d 134 (1983). This position supports the Divorce Code policy of preservation of marriages wherever possible.

There is also the potential that an affidavit of consent could be withdrawn even after having been filed with the court. This is only possible if the court grants the request for withdrawal. The courts have previously referred to Rule 1920.42(c) as granting the power to deny a petition to withdraw consent. The rationale being that an affidavit of consent could always be withdrawn and there would be no reason to seek the court’s permission if withdrawals were automatic. Instead, the court laid out a standard to be used when determining whether to allow withdrawal which examines whether the affidavit was signed under duress, fraud or undue influence. Duress would include threats of physical harm or actual harm. Fraud, which must be established by clear and convincing evidence, would demonstrate a misrepresentation with the intent to induce signature to an affidavit of consent. Finally, undue influence is influence obtained by excessive persuasion or other means such that the other party lacks free will and is unable to refuse. In addition to the above factors, the court should also look at the totality of the circumstances in order to effectuate justice among the parties and fulfill the intent and purposes of the Divorce Code.

Click here to read more about grounds for divorce.

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Fault Grounds and Defenses

Pennsylvania has a mixed approach to divorce in that it still allows fault grounds in addition to no-fault grounds. 23 Pa CS 3301(a) lists the fault grounds for divorce as follows: (1) willful and malicious desertion, without reasonable cause, for the period of one or more years; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment following conviction for a term of two or more years; and (6) indignities to the point of life being intolerable and burdensome. The party alleging fault must prove its existence and must also establish they are the “innocent and injured spouse.”

Procedurally, when a fault ground is alleged the first step is to establish the fault has occurred. A motion for appointment of a master would need to be filed to enable a master to hear testimony on the claims. There are defenses or bars to fault grounds which could be raised. Recrimination is a defense on the basis that there is no innocent spouse and both spouses are guilty of faulty behavior. Provocation occurs where the “innocent” spouse provoked the other spouse into the faulty conduct. Comparable to provocation, connivance is a defense where it is alleged the “innocent” spouse helped to manufacture the fault grounds which are being sought. For example, on a claim of adultery, the innocent spouse hired a prostitute for their spouse. Finally, condonation is a claim that the fault ground has already been forgiven by the innocent spouse and the marital relationship resumed after the offense. After the fault grounds are established, the divorce matter can proceed on other ancillary claims such as equitable distribution.

Click here to read more on grounds for divorce.

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Alternative Methods of Service for NJ Divorce

The New Jersey Divorce Statutes provide for alternate ways to notify the opposing party of a divorce action if you do not have any contact information for the opposing party. One method is by substitute service on a special agent. This method involves serving the complaint on a person who is likely to be able to get it to the Defendant; typically, a close friend or relative. The other method involves publication of the complaint in the county where the Defendant was last known to reside. For either of the above methods, you must get approval by the court first. The court must be satisfied that every effort has been made to locate the Defendant including but not limited to inquiries of the Defendant’s friends, family, employer as well as inquiries through the post office, department of motor vehicles, voter registration, and the military.

If you are still unable to get contact information for the Defendant despite the inquiries as listed above, you can file a petition with the court for substitute service or service by publication. Where service by publication is granted, you will be responsible to publish notice of the divorce in the paper specified by the court and provide proof to the court that it was in fact published. If the Defendant does not respond in the time frame allotted, the divorce can then move forward. The next step is likely requesting a default judgment for Defendant’s failure to answer or respond.

Click here to read more on NJ Family Law.

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NJ Grounds for Divorce

Section 2A:34-2 of the New Jersey Divorce Statutes outlines the different causes of action available for a divorce. The fault grounds include adultery, desertion, extreme cruelty, voluntary addiction or habituation, institutionalization, imprisonment and deviant sexual conduct. Desertion must be willful and continued for a period of 12 months or more. Extreme cruelty can be mental or physical but must be to the extent that it makes it unreasonable to expect the parties to continue to reside together. The fault ground for voluntary addiction refers to addiction to any narcotic drug and/or habitual drunkenness for 12 months or more. Institutionalization for a mental illness must be of a period greater than 24 consecutive months. Finally, deviant sexual conduct is that which is voluntarily performed by the defendant against plaintiff’s will.

New Jersey also recognizes no-fault grounds for divorce on the basis of separation or irreconcilable differences. The parties must live separately for at least 18 consecutive months with no prospect of reconciliation to succeed on the no-fault ground for separation. The parties may have experience irreconcilable differences for six months or more to succeed on that ground. All grounds for divorce require NJ residency for a period of at least one year with the exception of adultery. An adultery claim requires the third party who participated in the adultery be named as a co-defendant.

Click here to read more on NJ Family Law.

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Possibility Coaches – April 9, 2014

The Possibility Coaches are hosting another free lecture titled “How to Emotionally Thrive During & After Divorce!” at our Doylestown office on April 9, 2014. Jon Satin and Chris Pattay are the partners behind the Possibility Coaches and focus on empowering men and women alike to lead meaningful lives and engage in healthy, successful relationships. Satin and Pattay started coaching together in 2002 and have labeled themselves as relationship, divorce, and life coaches. As it relates to relationships or divorce, their goal is to help in navigating through the emotional aspects as well as provide a framework for rebuilding to achieve a happier, healthier life. Please contact our office for additional information and to reserve your spot for this free event! Our Doylestown office is located on the 2nd floor at 44 East Court Street.

Click here to read more about the Possibility Coaches.

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Legal Separation

Pennsylvania does not recognize legal separation in that there’s nothing you would file with the court to establish separation. Instead, it is a date established between the parties that later becomes relevant in establishing grounds for divorce or valuing assets that need to be divided. Separation does not mean the parties have to live separately. Separation is defined as the termination of cohabitation, whether living in the same residence or not. At the latest, it shall be presumed that the parties commenced to live separate and apart on the date that the divorce complaint was served. However, the date of separation can be an even earlier date if one party moves out of the marital home or makes it clear to the other party that the marriage is over by stating so clearly or even reducing it to writing. The effect of establishing “separation” goes toward starting the clock on a two-year separation divorce as well as establishing a cut-off date for valuing the marital estate.

New Jersey does recognize legal separation in the form of divorce from bed and board. Both parties must consent to a divorce from bed and board. The parties will still be legally married but are able to achieve separation financially. Just as with a divorce, the parties can enter an agreement to divide all their marital property or submit to the court for a decision on division. Alimony may also be awarded where appropriate. Health insurance may continue if covered by the other spouse and legal separation is not specified as a reason for termination. A divorce from bed and board can be converted to a divorce from the bonds of matrimony if the parties elect to go through with a full divorce. It can also be revoked such that the parties resume their marriage.

Click here to read more on separation.

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The Possibility Coaches

The Possibility Coaches are hosting a free lecture titled “How to Emotionally Thrive During & After Divorce!” at our Langhorne office on January 29, 2014. Jon Sattin and Chris Pattay are the partners behind the Possibility Coaches and focus on empowering men and women alike to lead meaningful lives and engage in healthy, successful relationships. Sattin and Pattay started coaching together in 2002 and have labeled themselves as relationship, divorce, and life coaches. As it relates to relationships or divorce, their goal is to help in navigating through the emotional aspects as well as provide a framework for rebuilding to achieve a happier, healthier life. The lecture will be held from 7 AM – 8 AM. Please contact our office for additional information and to reserve your spot for this free event!

Click here to read more about the Possibility Coaches.

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