Common Law Marriage

A common law marriage is distinguished from a regular marriage in that no marriage license is required. Instead, parties just have exchange words of intent to be married and hold themselves out to their community as a married couple. Often, the parties also lived together for some length of time as well. Common law marriage was abolished in Pennsylvania in 2005. Parties who met the requirements for common law marriage prior to 2005 can still be recognized as valid marriages. Once a common law marriage is established, it can only be resolved by divorce just as with any regular marriage. Moser v. Renninger, 2012 PA Super 59 (2011) discusses how to evaluate whether a valid common law marriage exists.

In Moser v. Renninger, Wife filed a divorce complaint on November 19, 2010 stating that her and Husband had entered into a valid common law marriage in 1985. Husband subsequently filed an Action for Declaratory Relief asking the court to declare that no common law marriage ever existed. Initially, the court held a common law marriage was in fact established on June 8, 1985. Husband immediately sought to appeal the court’s finding but his appeal was denied on the basis that it was premature. The court held that since the issue of whether there was a common law marriage or not was raised in the context of the divorce, Husband could not file an appeal until the divorce matter was final. The court also noted that if the issue of common law marriage is raised outside of a divorce, an immediate appeal would be appropriate.

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Void and Voidable Marriages

In order to file for an annulment, a party must establish the underlying marriage was either void or voidable. Under 23 Pa C.S. 3304, void marriages include those where (1) one of the spouses is still in a former marriage, (2) the parties are too closely related, (3) either of the parties was incapable of consenting to the marriage, usually due to mental disorder, or (4) either of the parties was under 18 if claiming a common law marriage. A void marriage is one that is invalid because it violates some public policy.

Under 23 Pa C.S. 3305 grounds for voidable marriage include: (1) where either party is under 16 without court approval, (2) where either party is 16 or 17 without court approval or parental consent, (3) where either party was under the influence of alcohol or drugs at the time of the ceremony impacting their ability to consent, (4) either of the parties is incurably impotent, or (5) there was fraud, duress, coercion or force to secure the marriage. A voidable marriage is presumptively valid unless a party challenges it. There is a sixty day time limit to pursue an annulment from the ceremony date for several of the voidable grounds. Additionally, regarding void and voidable marriages, the right to annulment is lost if there is subsequent confirmation of the marriage after becoming aware of the potential grounds for annulment. Where an annulment is to be granted, equitable distribution and potential support claims may proceed just as in a divorce action.

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Filing Fees

Most family law actions that will be filed include a filing fee for the initial complaint or pleading. A part of these filing fees go to fund the Pennsylvania Children’s Trust Fund (CTF). This fund has received approximately $40 million dollars from family law filing fees since inception. The initiative of the CTF is to prevent child abuse and neglect across the state. The main emphasis of CTF is to put prevention programs in place to decrease child abuse and neglect overall. The CTF grants its money to local community programs with the same initiatives. It is up to the respective community programs to apply with CTF to see if they are eligible for a grant. Currently, upwards of 280 community based programs across the state have received grants to aid in the fight against child abuse and neglect.

The PA CTF established a supporting organization, “Friends of the Children’s Trust Fund.” The goal of this supporting organization is to raise additional awareness and financial support for the mission of the CTF. The fund focuses on prevention because of the negative, and potentially long-term, impacts of abuse and neglect. Specifically, abuse and neglect is related to poor physical, mental, and emotional health, social difficulties and behavioral problems. There is also a corresponding economic impact in dealing with the aftermath of abuse and neglect making an even greater case for prevention as opposed to reaction. Many other states have similar funds to aid in the prevention of child abuse and maltreatment.

Please visit pactf.org for more information on the Children’s Trust Fund in Pennsylvania.

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Receipt of an Inheritance

The receipt of an inheritance may impact your divorce or support case. Section 3501 of the Pennsylvania Divorce Code defines what will be considered marital property, and up for division, versus what will be considered non-marital property. Marital property includes all property acquired by either party from the date of marriage through the date of separation. There is a presumption all property acquired during the marriage is marital regardless of how title is held (e.g. individually vs. jointly). However, property received as a gift, bequest, devise or descent is non-marital per 23 Pa. C.S. 3501(a). Accordingly, an inheritance that is received during the marriage can still be claimed as non-marital property. As a practical tip, parties should avoid commingling inheritance funds with other marital funds. Inheritance funds may still need to be disclosed since the separate assets of the party are a factor for equitable distribution under 23 Pa. C.S. 3502.

Money received by way of an inheritance should not to be considered income for a support matter. This was established in the case of Humphreys v. DeRoss, 790 A.2d 281 (Pa. 2002) wherein the court noted that the term “inheritance” was not expressly listed in the statutory definition of “income” under 23 Pa. C.S. 4302 and so was not intended to be included. However, Humphreys also established that receipt of an inheritance may still be a factor under Pennsylvania Rule of Civil Procedure 1910.16-5. Rule 1910.16-5 states factors for the court to consider for deviation from a guideline support obligation. One of the factors the court may consider is the assets and liabilities of the parties. In E.R.L. v. C.K.L., 2015 PA Super 220, the court upheld an upward deviation of a child support award where father had just received a $600,000 inheritance. The base support award was appropriately calculated in that case without the inclusion of the inheritance money.

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Pre-Nuptial Agreements

A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A simple pre-nuptial agreement often provides that each party retains their respective premarital property and any increase of value of premarital assets. It may also provide that anything they acquire in their individual name during the marriage would remain their separate property. Property acquired in joint names can be divided based on the applicable divorce laws or the parties can agree to split at a certain percentage, e.g. 50/50. A pre-nuptial agreement may also address spousal support. It is not uncommon for the amount of support to a spouse to increase based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage.

As a contract, a pre-nuptial agreement must meet several requirements to be held valid. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. For these reason, the agreement should be signed well before the wedding to avoid any challenge to the agreement that a party was forced to sign because the wedding date was fast approaching. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation. Any challenge under the above listed causes of action will require a fact-based analysis with the standard being a preponderance of the evidence, or more likely than not. Overall, it is difficult to overturn a pre-nuptial agreement once entered into, however, it can provide some peace of mind if the parties do not end up living happily ever after.

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Military Retired Pay vs. Disability Pay

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Military retired pay is a divisible asset in the context of a divorce matter. For marriages of at least ten (10) years, military retired pay can be divided through DFAS such that each party receives their share of that benefit directly. For marriages of less than ten (10) years, the service member would be responsible to make sure the spouse received the correct amount of the benefit. Disability pay is not a divisible asset. The amount of disability pay is based on the extent of the service member’s disability rating. Service members used to have to reduce their retired pay by the amount of any disability pay they elected to receive. This could result in the spouse of the member being shorted.

Now, concurrent retirement and disability pay is permissible. This benefits the service member in that they can receive both benefits. It also protects spouses since retirement pay which they can be awarded will not be reduced. The Howell case discussed the post-divorce waiver of military retired pay in exchange for disability pay. It held that the courts can not intervene and the spouse could lose out on all retired pay if a service member subsequently elected disability pay instead. To protect spouses, it is important to reserve jurisdiction to deal with possible post-divorce issues. Alimony may be used as an alternative method for making sure the spouse still receives a certain amount per month as initially contemplated in division of the retirement pay.

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Donor Agreements

Donor agreements are vital for identifying the legal rights of parties considering artificial insemination as part of assisted reproduction. An agreement should indicate that the donor does not have any rights subsequent to the donation. Specifically, the agreement should explain that no parental relationship is intended for the donor. It should be clear that donor’s parental rights are terminated and that the donor forever forfeits the ability to file for any type of custody or visitation if a child is subsequently born. The agreement would allow the recipient to dictate what happens with the donation or any embryos created using the donation.

Similarly, the party receiving the donation should waive the ability to file for any support from the donor. The agreement should also direct that the donor’s name not be on the birth certificate or any other legal document concerning parentage of the child. In the event of a known donor, you may also want to spell out if the child will ever be introduced to the donor. If this is a possibility, you may want to ask that contact information be kept up-to-date. The more likely scenario, however, is the use of an anonymous sperm donor. Regardless of the identity of the donor, best practice is to make sure a clear written agreement is in place to protect everyone’s respective interests.

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Surrogacy

Surrogacy is the process whereby a third party is used to assist couples in having a child. Surrogacy may be traditional wherein the third party will have a biological tie to the child however has agreed to relinquish any legal rights as a parent. The other option is gestational surrogacy where the third party is just a carrier and the egg and sperm of the intended parents are implanted in the surrogate. Pennsylvania does not have a statute in place as it relates to surrogacy, however, case law has upheld a surrogacy contract. In J.F. v. D.B., the carrier mother attempted to keep the children following birth despite having entered a surrogacy agreement. 897 A.2d 1261 (2006). The court eventually held she didn’t have standing for a custody action and turned the children over to the intended parents per the contract. The courts went a step further in In re Baby S, when it explicitly upheld a surrogacy agreement. 2015 Pa. Super. 244 (2015).

In re Baby S, involved celebrity couple Sherri Shepherd and former husband, Lamar Sally. The couple had entered into a surrogacy contract to assist in having a child. Several months into the pregnancy, Shepherd refused to sign additional forms to have her listed on the birth certificate as the intended parent of the child because of the pending dissolution of her marriage to Sally. Sally ended up taking care of the child and subsequently sought support from Shepherd. The court ruled that Shepherd was an intended parent evidenced by the signed surrogacy contract and accordingly, ordered her to meet her child support obligation. Accordingly, parties who intend to use a surrogate should consult with an attorney first and draft a clear, unambiguous agreement.

Click here to read more about family law issues.

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Donor Agreements

Donor agreements are vital for identifying the legal rights of parties considering artificial insemination as part of assisted reproduction. An agreement should indicate that the donor does not have any rights subsequent to the donation. Specifically, the agreement should explain that no parental relationship is intended for the donor. It should be clear that donor’s parental rights are terminated and that the donor forever forfeits the ability to file for any type of custody or visitation if a child is subsequently born. The agreement would allow the recipient to dictate what happens with the donation or any embryos created using the donation.

Similarly, the party receiving the donation should waive the ability to file for any support from the donor. The agreement should also direct that the donor’s name not be on the birth certificate or any other legal document concerning parentage of the child. In the event of a known donor, you may also want to spell out if the child will ever be introduced to the donor. If this is a possibility, you may want to ask that contact information be kept up-to-date. The more likely scenario, however, is the use of an anonymous sperm donor. Regardless of the identity of the donor, best practice is to make sure a clear written agreement is in place to protect everyone’s respective interests.

Click here to read more about family law issues.

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Pennsylvania Surrogacy

Pennsylvania does not have a statute in place as it relates to surrogacy, however, case law has upheld a surrogacy contract. There are two types of surrogacy. A traditional surrogacy is where the carrier has a genetic relationship with the child. For example, the carrier’s eggs are used along with a sperm donor. A gestational surrogacy is where the carrier has no genetic relationship. With a gestational surrogacy both the egg and sperm are implanted into the carrier. In J.F. v. D.B., the carrier mother attempted to keep the children following birth despite having entered a surrogacy agreement. 897 A.2d 1261 (2006). The court eventually held she didn’t have standing for a custody action and turned the children over to the intended parents per the contract. The courts went a step further in In re Baby S, when it explicitly upheld a surrogacy agreement. 2015 Pa. Super. 244 (2015).

Pennsylvania also allows for the intended parents to get a pre-birth order to have their names listed on the birth certificate as parents. This procedure is the Assisted Conception Birth Registration. This procedure is available when both intended parents are related to the child (e.g. gestational surrogacy). It requires the intended parents to file a petition with the court to get an order as well as the submission of a Report of Assisted Conception. The Department of Health oversees the procedure. The benefit of this procedure is that it alleviates the need for adoption proceedings. If the intended parents do not meet the criteria for an Assisted Conception Birth Registration, adoption is still an alternate method to establish legal parentage.

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