Facts about Emancipation

There is no emancipation statute in Pennsylvania and cases are determined on a case-by-case basis looking at the facts. The key factor is if the minor child has already established independence. This would include financially supporting themselves and living apart from their parent or guardian. Any judicial determination is not permanent and can be revoked if the circumstances change. Further, it is not enough for a minor child to point to an intent to live independently. Instead, they must already evidence their independent status prior to a formal determination. Marriage and enrollment in the military usually favor an emancipated determination though the same criteria should still be considered regarding independence. Overall, it is a very hard legal standard to reach.
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In most cases, you will find a judicial determination isn’t needed. Administrative agencies can make their own determination regarding a minor’s status. For example, the Department of Public Welfare would make that determination for a minor applying for public assistance. A school district can make that decision for a minor child attending one of their schools. Emancipated status is always for a specific and limited purpose. Examples of the most popular purposes include medical consent, ability to sign legally binding contracts (e.g. a lease), receipt of public benefits, and school enrollment. There is no general emancipated status that would give a minor all the same rights as an adult.

Click here to read more on custody of minor children.

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Children Witnesses

The general rule on hearsay is that any out of court statement being offered for the truth of the matter cannot be admitted unless it meets one of the exceptions for hearsay. An additional loophole separate from the hearsay exceptions addresses minor children. The policy of the Commonwealth is to promote procedures to protect children witnesses. These procedures are outlined in 42 Pa C.S.A. 5981 – 5988. For the purposes of the provisions in these sections, child is defined as an individual under sixteen (16) years of age. Per Section 5984.1, the court may direct that a child’s testimony be recorded for subsequent presentation in court so long as the method accurately captures all information presented during such testimony.

Similar to the allowance for recorded testimony, Section 5985 allows for the child to testify in a room other than the courtroom with the testimony being transmitted by contemporaneous alternative method. The court should first determine if the child would be subject to serious emotional distress if they had to testify in an open forum and/or before the defendant. Section 5985.1 allows statements that would otherwise be considered hearsay to be permitted if the child is under twelve (12) years of age and the testimony relates to certain offenses.

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What to wear to Family Court

What you wear to Family Court is less important than how you act when you are there. That being said, however, it is important that you give the Court the respect it deserves. Do not show up wearing flip flops, tank tops, shorty shorts, beat up jeans, sneakers. Whether you have a conference or you have a hearing before the Judge in a Courtroom, you should dress like you were going to Church back in the day when people dressed appropriately for Church. If you have tattoos, cover them up. If you have piercing or gage earrings, take them out. Since Family Court is often based on subjective opinions, it is best to not give any reason to the Court to side against you, whether they do so consciously or not.

For either gender,  wear business casual clothes to court. You do not have to wear a suit and a tie unless that is how you typically dress for work. Make sure you are groomed and do not look like you just rolled out of bed. If you take the time to dress better and look better, it will put you in a better frame of mind to be prepared to settle or win your case.

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Reasons to consider a Prenuptial Agreement

If you are getting married, you may want to consider a prenuptial agreement before you tie the knot.  A prenuptial agreement is not necessary in every situation, but is very useful to avoid conflict in certain situations.  It is not always just for divorce.  You may want to use it to allow you to decide how your assets will be distributed in the event of death rather than have your spouse be entitled to their elective share.  

A prenuptial agreement allows you to predetermine in the even of death or divorce how some or all of your assets will be distributed.  In the case of death, you will also need a will.  Some situations where it is very useful to have a prenuptial agreement are when you have children from a prior relationship, a closely held business, or assets accumulated prior to the marriage.   Even if none of those apply, you can still use it to help you save the expense of protracted litigation in the event of a divorce.

For more information on prenuptial agreements, please click here:/Family-Law-Divorce/Prenuptial-Agreements/

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Handling Custody during bad weather/sickness, use common sense

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Oftentimes when you have a custody agreement, your agreement or order spells out specific times and meeting places for custody exchanges. Even the best crafted custody agreement, however, does not contemplate every situation that possibly could arise.  In these circumstances, you must often make a judgement call.  For example, if your child is burning up with a fever, it may not be in the best interest of your child to insist that they return to you for your designated custodial time.  You may want to consider your child and let them rest until they are up for travel.  With winter upon us, you may also find yourself required by your custody order to exchange your child in the middle of a snowstorm, or worse, blizzard.  Again, you should use your best judgement in deciding whether to follow the custody agreement.  This is why it is very important that parents be able to communicate with each other.  Oftentimes, you will need to make accommodations for the other parent.  You cannot expect a custody agreement or court order to resolve every possible scenario.  

For those parents with an ex who threatens the police or court if the custody agreement is not followed when one of these emergency circumstances arise, I would suggest that you still exercise your best judgement.  As long as it is a true emergency and you are no abusing the system and alleging your child is sick when in fact that are perfectly fine, it is not likely that you will be found in contempt but be prepared to prove it just in case. Take a photo of your child’s temperature, get a copy of the weather report for your area.  Always put the safety of your child and well being of your child first in an emergency circumstance.  That being said, it may be a good idea if the other parent misses time due to snow or an illness that you offer make up time.  The more you give, the more you get.  Mother nature does not play favorites and it could easily happen on your time.

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Why you should file a counterclaim in custody

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If you are one of the many families who are facing custody issues and you find that your ex has file a petition for custody or a petition to modify your current order, you should consider filing a counterclaim for custody. While it is true that you do not have to file an answer or a counterclaim in order for the court to decide a schedule, what happens if your ex suddenly withdraws their petition the day of the hearing?  If you do not have a counterclaim filed, then the Court will cancel the hearing since there will be no petition to hear. While this is fine if you do not want a change, it may not be so great if you were expecting to raise issues on why you need an order or why you want a change, this is not such good news. In order to prevent this from happening, you should always file a counterclaim on custody. That way, if your ex does decide to withdraw the petition filed, the Court will have to hear the case unless you also withdraw your petition.

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Non-Marital Families

The courts may recognize certain rights in relationships other than marriage. Palimony is the term for legal property and support rights arising from co-habitation. Co-habitation is not necessarily required for a palimony claim so long as there is a marital-like relationship. The default rule is that title controls ownership in the absence of a written document stating otherwise. However, the courts may recognize certain equitable doctrines to achieve fairness even if strict adherence to the written document would produce a different result. One cause of action is a constructive trust through the theory of unjust enrichment. The crux of the theory is that it would be unfair to allow the person that doesn’t have title to be excluded from the wealth they helped create.

Another equitable doctrine is quantum meruit. This doctrine posits that each party should get what they deserve. To be successful, the parties must establish that there was a reasonable expectation of receiving a benefit from the relationship. For example, a promise to support, expressed or implied, could be the subject of a quantum meruit claim. As a matter of policy, certain courts are reluctant to award any rights in non-marital relationships with the belief that it undermines the institution of marriage.

Click here to read more on rights of unmarried parties.

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Insurance Policies

Questions regarding insurance policies often come up in the context of a divorce. Married couples may have commingled auto insurance policies, health insurance plans, and/or life insurance policies with their spouse as beneficiary. Technically, there are no rules on maintaining certain policies that existed at the commencement of the divorce in the sense that there is no automatic punishment or sanction for dropping these policies at separation. On the other hand, the courts have the power to order certain policies be maintained through their general equity powers in the period between separation and divorce. Perhaps, the most prudent action is to maintain all policies until finalization of the divorce or other mutual agreement or seek the advice of an attorney first to avoid the potential of additional fees that may be incurred if you are ordered to reinstate any policy and/or be responsible for any liability incurred while the other party was uninsured. Additionally, as it relates to health insurance specifically, it is routinely ordered as part of a support action and unreimbursed medical expenses, which can be substantial if there is a lapse insurance coverage, will also be shared.

Section 3502(d) of the Divorce Code provides that the court can order the continued maintenance and beneficiary designations of certain policies or even the purchase of new policies as part of equitable distribution. For example, life insurance policies may often be utilized as part of an equitable distribution award to ensure the receipt of ongoing support obligations such as alimony. If there is no agreement or Order on life insurance policies post-divorce, the insured should update their policies immediately to reflect their desired beneficiary. Pennsylvania estate law does provide that post-divorce the ex-spouse is no longer entitled to receive payment on the policy even if the beneficiary designation on the policy was never updated. However, this will only be the end result for a private policy. Policies sponsored by an employer are governed by federal law and under ERISA, the proceeds must be paid per the plan documents regardless of the termination of the marriage.

Click here to read more on insurance policy designations.

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Retake Maiden Name

A spouse can elect to retake his or her prior name through the course of a divorce action. Pursuant to 54 P.S. § 504, “any person who is divorced from the bonds of matrimony may resume any prior surname used by him or her by filing a written notice to such effect in the office of the clerk of the court in which the decree of divorce was entered, showing the caption and docket number of the proceeding in divorce.” It is also possible to request to retake your maiden name while the divorce is still pending in Bucks County. Check with your county court regarding any applicable filing fee. Currently Bucks County has a $9 filing fee.

Subsection (b) of the statute addresses divorce decrees granted outside of the jurisdiction. In that event, notice to retake maiden name can still be filed after a certified copy of the foreign decree has been filed with court where notice to retake maiden name is being filed. The form of the notice to retake prior surname is below. It is also available on the Bucks County Prothonotary website.

                    NOTICE OF ELECTION TO RETAKE PRIOR NAME

Notice is hereby given that (Current Name) , having been granted a Final Decree of Divorce on (Date) , hereby elects to retake and resume the prior surname of (Prior Name) and gives this written notice avowing her intention in accordance with 54 Pa.C.S.A. Section 704.

(Current Name)

TO BE KNOWN AS:

(Prior Name)

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Issues with the Marital Residence

The family court has the authority to make determinations regarding a marital home even prior to or subsequent to a divorce decree. First, the court can grant one of the parties exclusive possession of the home while the divorce is pending under Section 3502 of the Divorce Code. Case law, however, has indicated that an award for exclusive possession should not be given lightly and the party requesting it has the burden of proving its necessity. Section 3323 gives the court general equity powers to issue any order necessary to protect the interests of the parties or as justice requires. This can include an order mandating a party to pay the mortgage on time, forcing the home to be sold if neither party can afford it, and even decisions on which realtor should be used or what the listing price should be.

Section 3105(a) discusses the court’s obligation to enforce agreements between the parties. Accordingly, if an agreement has been made regarding the marital residence and one party refuses to comply, there is the option of taking the issue before the court for enforcement. Again, this may result in an order for the home to be listed for sale, for a certain realtor to be chosen and/or for a certain listing price. Deductions in the listing price can also be requested and awarded. The best agreements will contemplate issues which may arise and set forth contingency plans. For example, a party can specify at the outset how reductions will be made to the listing price if the home has not sold within a certain time frame. It is also useful to explain how parties will be compensated, if at all, for any pricey expenses/repairs above the costs of regular maintenance to ensure the home will sell.

Click here to read more on dividing marital property.

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