Assisted reproduction refers to a number of procedures that may be utilized to achieve pregnancy including fertility treatments, in vitro fertilization and surrogacy. In vitro fertilization entails removing a woman’s eggs from her body and implanting the eggs with sperm to create an embryo. Those embryos can be stored until ready for use. However, couples should be aware of what happens to the embryos if they subsequently separate prior to using them. In Pennsylvania, frozen embryos are considered marital property and hence, subject to division in a divorce. The Pennsylvania Superior Court stated its position on the marital status of frozen pre-embryos in Reber v. Reiss, 2012 PA Super 86. In Reber, Wife wanted to use the frozen pre-embryos in order to have children of her own whereas Husband wanted the frozen pre-embryos either destroyed or donated for research.
Prior to reaching its decision, the Pennsylvania Superior Court considered how other states have dealt with this issue. Some states have focused on whether there is a prior agreement between the parties concerning disposition of the pre-embyros in the event of divorce and if so, will uphold the agreement as enforceable. Other states have held the enforcing such an agreement is a violation of public policy and have declined to do so. Another approach is a mutual consent model requiring both parties to agree on disposition, however, Pennsylvania did not find this model feasible since parties would not be in court in the first place if they could agree. The approach that was ultimately adopted in PA calls for the court to balance the interests of the parties.
In Reber, the court found that Wife’s interest in procreation using the frozen pre-embyros outweighed Husband’s interest against procreation since evidence established that the pre-embryos were likely Wife’s only opportunity to procreate along with testimony that Wife would allow Husband to be involved and wouldn’t pursue support in response to the concerns raised by Husband. The court did acknowledge that the party against procreation should normally prevail in a balancing test, however, due to the unique facts of the case, the scales tipped in Wife’s favor. It also seems that the court would’ve likely enforced an agreement on the issue if there had been one. Accordingly, parties who intend to undergo in vitro fertilization should draft a clear, unambiguous agreement as to the disposition of embryos upon separation, divorce or death, or else be subject to a balancing approach by the court.
Click here to read more about division of marital property.
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Your Teen and Your Divorce
Child Custody, DivorceAll children process divorce differently and your teen will be no different. They may be relieved if you and your spouse were constantly fighting or unhappy that mom and dad are no longer together. They may experience a variety of emotions that they are unsure how to handle.
What should you watch out for when raising a teenager and navigating through your divorce?
Regardless of their feelings about your split, it will be important for you to keep a close eye out for the following:
Don’t let them play off of mom and dad: “Dad said I could do this,” “Mom said you should buy me new sneakers.” “Mom said that she will pay half if you pay the other.” Whatever the case may, be do not allow your child to tell you what the other parent is going to do. Check in with each other.
Create stability for your children: Children of all ages need to know their schedules, how things are changing, and that they have two homes with parents who love them. If you are all going to move then make sure they understand how they will see the other parent, attend school, and see their friends.
Watch carefully and put support around them: Your children are going through a substantial transition and need many forms of support. Make sure that their guidance counselors are aware of your divorce so they can talk with the children and recommend a therapist as necessary.
Realize boys and girls are going to process your divorce differently. If you have a teenage daughter and son make sure you address their concerns and realize that they may have completely different fears causing anxiety.
Don’t badmouth your ex: Your children have the right to be loved and supported by both parents throughout their childhood. The divorce is going to be difficult enough, so make sure you do not say bad things about the other parent.
Promote bonds with both parents: continuing on from #5 – your teen needs both a mom and a dad so encourage him/her to enjoy their time with the other parent.
Listen to complaints but be firm: Your child may not like the fact that he/she needs to now move between two homes, live under two different sets of rules, and “go see mom who lives too far away from my friends.” Listen to their frustrations, acknowledge their feelings, but be the adult as they adjust to their new normal.
Help them manage their emotions: Your teens are going to have to process a significant number of emotions including shock, anger, sadness and even embarrassment – and sometimes all at once. Make sure they know you are available to listen.
It isn’t their fault – so many children feel that their parents could have been happier if they had been a better child – maybe not gotten in so much trouble, earned better grades, or not have needed so much “stuff.” If your marriage was going to last it could have survived all of that – and your child needs to hear that from you.
When a teen goes through a divorce, communication is the key. They need to know they can come to you when problems arise but they are going to need to also understand that the parents are in charge.
Support for Adult Children
SupportIn Pennsylvania, child support should terminate when the minor child is eighteen or graduate high school, whichever is later. However, in certain circumstances the obligation for support may continue past those milestones. One example would be if the child has a disability. Pennsylvania courts have held that the child support guidelines would continue to apply in the instance of a child who, despite age, remains unemancipated or unable to support themselves by virtue of a disability. The court is to determine if an adult child has a mental or physical condition that prevents the child from earning a living wage. Additionally, the court should look to see whether an order of continued support would result in undue hardship on the parents.
In Kotzbauer, 2007 Pa.Super. 357 (2007), Father appealed a support order for his nineteen year old daughter. The daughter had been diagnosed with epilepsy which led to seizures, brain malformations and migraine headaches several times a week. While she had a driver’s license, attended community college and had a part-time job, ultimately the trial court held that the evidence presented still established she was unable to support herself. She had poor grades in school due to an inability to focus, often missed work or left early, and relied on her Mother to keep up with all her prescriptions, medical appointments, food, clothing and housing. The majority of states recognize an on-going duty of support if adult children are unable to support themselves due to a demonstrable physical or mental condition impacting their ability to earn a supporting wage.
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Enforcement of Support
SupportThere are a number of remedies available to promote payment of support obligations within Pennsylvania. First, Pennsylvania does wage garnishment where possible to ensure payments are collected in full on a consistent basis. If a payor does fall behind, the court will call the party in for contempt proceedings. A payor who is able to catch up at the time of the contempt proceeding will usually avoid any further sanctions. Alternatively, if the court accepts a repayment plan offered by the payor there may not be any further enforcement remedies pursued. If a payor cannot make payment in full or offer a satisfactory plan for catching up on payments, they will have to go before a Judge to discuss their failure to keep up with their support obligations.
If a party fails to appear for contempt proceedings the court has the authority to issue a bench warrant to have that party taken into custody. Additionally, the court can order additional incarceration at subsequent support hearings as a means of reiterating the importance of regular support payments and demonstrating the severity of the punishment available for failure to comply. Other enforcement remedies include seizure of payments from a government agency such as unemployment compensation, social security, retirement or disability payments, seizure of works’ compensation benefits and seizure of retirement funds in pay status. The court may also place a lien on real property, seize funds from the payor’s bank, report overdue support to credit agencies and suspend licenses including occupational, driver’s and recreational.
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Surrogacy
Family LawSurrogacy 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.
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Donor Agreements
Family LawDonor 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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Insurance companies prohibited from denying claims of victims of abuse
BlogUnder Pennsylvania’s Unfair Insurance Practice Act, an insurance company may not deny a claim by an innocent co-insured where the loss was caused by the intentional act of another insured if the innocent co-insured is a victim of domestic violence. The Superior Court of Pennsylvania recently addressed this provision in Lynn v. Nationwide Insurance Company.
In this case, Husband and Wife owned a home, which was insured by Nationwide. Without Husband’s knowledge, Wife contacted their insurance agent and requested that the insurance policy be cancelled. Wife then drugged the couple’s children and set fire to the home while she and the children were inside. Wife’s plan failed and she was arrested.
Husband presented a claim to Nationwide for the fire damage. Nationwide denied coverage in part based on an exclusion for loss caused by intentional acts. Husband argued that he was a victim of domestic violence and that Wife’s attempted arson was part of a pattern of abuse. The Superior Court held that the issue needed to be submitted to a fact finder to determine if the Unfair Insurance Practices Act prevented Nationwide from denying coverage based on Wife’s conduct.
Costs of sale and taxes to be considered in equitable distribution of a business
BlogIn Carney v. Carney, a recent decision by the Superior Court of Pennsylvania, the Court held that costs associated with the sale of a business and related tax effects were relevant to an equitable distribution order.
The trial court entered an equitable distribution order, which gave Husband the couple’s trucking business. Husband was required to make monthly payments to Wife for 10 years to offset the value of the business with the remaining marital assets, all of which were awarded to Wife. The monthly payment was calculated without accounting for costs associated with a potential future sale of the business and possible tax effects.
Under Pennsylvania law, costs of sale and related tax effects are relevant to equitable distribution regardless of the likelihood of the sale. Therefore, the value given to a marital asset for purposes of equitable distribution should be the value after deducting any expense required to liquidize the asset.
Assisted Reproduction
DivorceAssisted reproduction refers to a number of procedures that may be utilized to achieve pregnancy including fertility treatments, in vitro fertilization and surrogacy. In vitro fertilization entails removing a woman’s eggs from her body and implanting the eggs with sperm to create an embryo. Those embryos can be stored until ready for use. However, couples should be aware of what happens to the embryos if they subsequently separate prior to using them. In Pennsylvania, frozen embryos are considered marital property and hence, subject to division in a divorce. The Pennsylvania Superior Court stated its position on the marital status of frozen pre-embryos in Reber v. Reiss, 2012 PA Super 86. In Reber, Wife wanted to use the frozen pre-embryos in order to have children of her own whereas Husband wanted the frozen pre-embryos either destroyed or donated for research.
Prior to reaching its decision, the Pennsylvania Superior Court considered how other states have dealt with this issue. Some states have focused on whether there is a prior agreement between the parties concerning disposition of the pre-embyros in the event of divorce and if so, will uphold the agreement as enforceable. Other states have held the enforcing such an agreement is a violation of public policy and have declined to do so. Another approach is a mutual consent model requiring both parties to agree on disposition, however, Pennsylvania did not find this model feasible since parties would not be in court in the first place if they could agree. The approach that was ultimately adopted in PA calls for the court to balance the interests of the parties.
In Reber, the court found that Wife’s interest in procreation using the frozen pre-embyros outweighed Husband’s interest against procreation since evidence established that the pre-embryos were likely Wife’s only opportunity to procreate along with testimony that Wife would allow Husband to be involved and wouldn’t pursue support in response to the concerns raised by Husband. The court did acknowledge that the party against procreation should normally prevail in a balancing test, however, due to the unique facts of the case, the scales tipped in Wife’s favor. It also seems that the court would’ve likely enforced an agreement on the issue if there had been one. Accordingly, parties who intend to undergo in vitro fertilization should draft a clear, unambiguous agreement as to the disposition of embryos upon separation, divorce or death, or else be subject to a balancing approach by the court.
Click here to read more about division of marital property.
Dividing Property Outside of Divorce
Real EstateA partition action is a legal proceeding to divide property amongst unmarried individuals that cannot agree what to do with the property. This may arise in a situation where two parties who were never married purchased a home together. It may also arise if real property is not properly dealt with at the time of the divorce action and the now divorced parties are still co-owners. Pennsylvania partition actions are governed by Rules 1551 – 1574 of the Rules of Civil Procedure. There are two options in a partition action. One option involves physically splitting the property, if possible. The alternative option, and more likely occurrence, involves the home being sold with the proceeds divided. As far as procedure, a complaint for partition should be brought in the county where the property is located and must include all co-tenants as parties.
The complaint must also include a description of the property along with each co-tenant’s interest in the property. Following the filing of the complaint and a court order on the partition, a court officer called a “master” is usually appointed to oversee the action. This usually includes an appraisal of the property to obtain an accurate value and setting up the sale of the property, be it private or public. The parties to the partition action are responsible for splitting all fees incurred during the partition proceeding as well as compensating the master. The parties can resolve at any time settle the matter amicably amongst themselves. Married couples should be sure to deal with real property issues at the time of divorce to avoid the potential for this additional proceeding down the road.
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Social Security Retirement
DivorceSocial security retirement benefits are payable based on the individual’s earnings history as well as age of retirement. Full retirement age is presently 66 years old. The benefit is reduced if electing to receive the benefit earlier. The minimum age to start collecting is presently 62 years old. An individual can elect to receive benefits under the spouse’s earnings history instead. An individual may receive up to 50% of their spouse’s benefit. This does not impact the spouse’s benefit in any way. An individual may elect to receive under their spouse’s benefit if their earnings history was substantially higher.
Even after divorce it may be possible to collect under your prior spouse’s earnings history. There are a few conditions that must be met. First, you must have been married for a minimum of ten (10) years. Second, you must not have remarried. Third, you must be at least 62 years old. Finally, the amount you will receive under your ex-spouse’s earnings history must be more than what you would receive based on your own work history. Electing to receive under your ex-spouse’s history will not affect any new spouse. Retirement benefits may also be payable to your children until they are 18 or graduate high school, whichever is later.
Click here to read more about divorce after 50.